The State’s application of Brady rule disclosure isn’t straightforward
The policy can potentially unfairly impact officers’ rights and justice for defendants.
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[Image created by Amy Crescenzo]
The governing rule for handling evidence, established in 1963 by the U.S. Supreme Court in Brady v. Maryland, requires prosecutors to disclose any evidence favorable to the defendant that is material to guilt or punishment. This includes exculpatory evidence that could negate guilt, reduce a potential sentence, or impact witness credibility- even if the witness is law enforcement.
A recent high-profile national case brought this so-called Brady rule into the spotlight. When the charges of involuntary manslaughter against actor Alec Baldwin were dismissed, a defendant’s due process rights were at the core.
During Baldwin’s trial, his defense counsel asked the court to dismiss the case based on the prosecutors’ lack of disclosure about dummy ammunition that was related to the case but not disclosed to the defense. The judge granted the dismissal “to ensure the integrity of the judicial system and the efficient administration of justice.”
This national case has local echoes in how evidence beneficial to the defendant is shared, or not shared, with the defense team by Marion County law enforcement and prosecutors. Specifically, local cases involve police officers and deputies whose credibility in court could be challenged by defendants because of documented concerns over their honesty in prior cases.
Despite decades of legal precedent, The National Association of Criminal Defense Lawyers, described violations of the Brady rule to be “among the most pervasive forms of prosecutorial misconduct.”
Clearwater-based defense attorney Denis M. deVlaming explained obligations for complying with Brady principles in 2018 material still used by the criminal section of the Florida Bar: “That court holding along with United States v. Bagley and Kyles v. Whitley have predominately dictated the requirements of the prosecution to turn over all material that include the following: (1) all information that would exonerate the accused; (2) all exculpatory information; (3) all information that would lessen the punishment; (4) all material impeachment of the government’s evidence or witnesses; and (5) any evidence that would support a valid defense.”
In the Brady training material deVlaming said the law implied upon a prosecutor the “duty to learn” of Brady material that needed disclosure.
“That duty to learn means that the government cannot just sit back and turn over whatever Brady material is given to them, but they must go out and affirmatively search for it. And perhaps the reasoning behind that stringent requirement can be found in United States v. Bagley: “By requiring the prosecutor to assist the defense in making its case, the Brady rule represents a limited departure from a pure adversarial model. This is because the prosecutor’s role transcends that of an adversary. The prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty…Whose interest… in a criminal prosecution is not that it shall win a case but that justice shall be done,” according to deVlaming.
Local application of Brady
Brady rules regarding disclosure are not limited to physical evidence; they also relate to information that could be used to impeach a witness, and this is where disclosure of information becomes murky.
For example, exculpatory evidence about law enforcement personnel who would be called to testify could diminish the credibility of their testimony. Customarily, the state will disclose that information to defendants early on during the discovery stages, in writing, not at trial as in the case of Baldwin.
Who, then, is responsible for keeping lists of personnel who may have credibility issues with their testimony?
Across the country, states have placed the burden squarely on prosecutors. For example, in 2019, the State of California Supreme Court removed an exemption for deputies’ personnel records, ruling the Los Angeles County sheriff must give prosecutors the names of deputies who have committed misconduct, such as lying, tampering with evidence or using unreasonable force.
Walter Forgie, spokesperson for Gladson, said the office relies on law enforcement to disclose to prosecutors any officers who may have credibility issues.
Prior to an incident in which an Ocala Police Department sergeant was allowed to resign following an incident with a juvenile during a neighborhood Halloween dispute, Gladson had written a letter to OPD stating that the officer had a history of being dishonest and was not a credible witness.
The “Gazette” asked Gladson’s office for the list of other law enforcement officers in Marion County who have been similarly identified as having credibility issues. Forgie initially told the “Gazette” that no such list existed.
When asked how the state attorney identified officers who may have credibility issues to meet the disclosure requirements, the “Gazette” was provided a policy that primarily related to adding Brady information to a database. No written criteria for how prosecutors would make such a determination was given.
The “Gazette” revised its request and asked for a list of officers in Marion County who had Brady notes in the state attorney’s directory for the last 10 years and received a list of 31 names. The “Gazette” cross-referenced those names against lists of employees who work at Marion County Sheriff’s Office and the OPD.
The “Gazette” identified a handful of officers still working locally who are on the state attorney’s list but also noticed that some officers who had been found to be dishonest through internal investigations were not on the list.
The “Gazette” asked Forgie for an interview so he could answer questions about or give context to the inconsistencies in the application of their policy. The interview request was denied.
What’s at stake for officers on the Brady list
The conversation about who ends up on a Brady list and what the criteria are for inclusion are also a matter of law enforcement officers’ rights.
In a 2019 article on Police1.com, it explained that being added to a Brady list can significantly impact an officer’s career, and it’s not always for the right reasons. The article listed a few of the reasons why some officers have alleged prosecutors have “Brady listed them:” Criticizing the district attorney in the newspaper; Supporting the wrong candidate in the district attorney’s race; Investigating corruption within the prosecutor’s staff; Providing testimony that is truthful, but unhelpful to the prosecution; Complaining to city officials about corruption in the police department; Failing to apologize to the prosecutor for some perceived slight.
“Officers have also contended their own command staff have colluded with prosecutors to use Brady listings to get around the “red tape” necessary to have an officer investigated, progressively disciplined and finally terminated. In some jurisdictions, once an officer is Brady listed, they can be deemed unfit for duty or unable to perform an essential job function (testify) and can be fired without internal disciplinary processes. An officer’s federal civil rights lawsuit making such a claim resulted in reinstatement and a $812,500 settlement,” the author wrote.
When the issue was raised of whether law enforcement could provide Brady information to the state prosecutors in California in 2019, the “Los Angeles Times” reported that union representatives argued the disclosure could be used by departments to retaliate against officers who were politically unpopular.
A review of the 31 officers on the Fifth Circuit State Attorney’s Brady list left questions for the “Gazette” because there were officers not on the list who had been investigated internally for dishonesty. Others were on the list, but internal investigation files reflected their errors were more mistakes than dishonesty.
The “Gazette” asked MCSO and OPD what their policy was about disclosing personnel who may have discipline histories that would undermine their credibility. Attorney for the sheriff’s office, Marissa Duquette, general counsel for MCSO emailed the sheriff’s policy and wrote by email, “The Commander who oversees the Office of Professional Standards is responsible for notifying the State Attorney’s Office. Our agency does not maintain a Brady list, as it is ultimately up to the prosecution to determine whether an individual’s conduct met the criteria.”
OPD said the agency maintains no Brady list but cited a policy “effective 7/1/2023 in accordance with F.S.S. 112.536, any sustained and finalized Internal Affairs Complaints for both sworn and non-sworn members relevant to truthfulness (F.S.S. 90.608. 90.609. or 90.610) will be forwarded to the State Attorney’s Office.”
Attorneys
When obtaining the Fifth Circuit State Attorney’s Brady list, the “Gazette” asked Fifth Circuit Public Defender Michael Graves if he had it. He did not, so the “Gazette” forwarded it to him.
Graves said his office was aware of the fingerprint examiners on the list and that when he became aware, his office independently had specific fingerprints reexamined. However, Graves could not speak to what private defense attorneys knew about the situation.
Local criminal attorney Jack Maro told the “Gazette” his office was not aware of the list but said it would be a good practice to disclose the list and along with the reasons the law enforcement personnel were on the list so that no one could say they didn’t know.
Noting that other online sites like volusiaexposed.com were attempting to publish it, Maro added, “I could see how publishing the list could preempt Richardson hearings.” Richardson hearings can be requested to determine whether both parties have adequately and fairly shared information so that they can be prepared for trial.
WBAL-TV News in Baltimore reported that Baltimore prosecutor Ivan Bates has chosen to publish his list of “do not call as witness” police officers on a website. According to that report, Bates’s list included 11 officers who were currently employed and 49 former officers.
In that report, Bates explained his reasoning for establishing criteria for being on the list and why he was publishing it.
“The few in uniform who gamble with the credibility of the department and the integrity of my prosecutors’ cases must be identified for the sake of accountability,’’ he said. “This is critically important because of the history of Baltimore and the not-too-distant stain of corruption within our police department.”
In the report, Bates clarified that the criteria for police officers being placed on the list was due to more than simply making a mistake. “Officers make mistakes all the time,’’ he noted. “We all do, we’re human.”
Example – not on the list
There is evidence of officers who have been allowed to resign and seek work at other departments who were investigated internally for dishonesty but who are not on the state attorney’s Brady list, even though Gladson’s office did the investigations.
As reported by the “Ocala Star-Banner” in 2015, two officers were investigated for making untrue statements. “In his report, (Detective Joseph) Tussey wrote that in going to (Matthew) Timm’s hotel room he announced himself as a MCSO deputy before he used a manager’s key to open the door. (Detective Edward) Tillis also wrote that Tussey said he was deputy before he opened the door. The body camera video, prosecutors said, clearly shows that Tussey did not announce himself as reported, which could raise questions about the legality of the entry.”
At the time of the incident, body cameras were new to the MCSO. Those body cameras reflected Tussey announcing: “Maintenance. I know you have a do not disturb but I need to come for maintenance, are you available? Hello. Maintenance,” before entering the hotel room that he said was omitting a strong odor of marijuana. In an affidavit, however, Tussey indicated he announced “Sheriff’s Office” more than once before entering.
“Tussey ended our conversation by stating that he knew the matter in regard to July 17th would eventually happen as a result of body cams and if not for them that situation would have never surfaced. He then added that he felt body cams are going to hurt the Sheriff’s Office more than help,” now-retired MCSO Internal Affairs Director Leo Smith wrote in a memo following a conversation with Tussey.
In a memo dated Nov. 13, 2015, prosecutor Richard Ridgway wrote in a memo to then-State Attorney Brad King that despite the findings of the sheriff’s office the state attorney’s office did not find “corrupt intent” and therefore filed no charges against the detectives.
Neither detective is on the state attorney’s database, and Tussey later went to work for OPD.
A review of cases where Tussey has been identified as a witness by the state attorney did not identify his negative discipline history to the defense.
Local example – finger print examiners
Two MCSO fingerprint examiners, Tiffany Nader and Jeana Starling, both of whom are still working at the agency, are on the state attorney’s Brady list. A review of their internal investigation files, which started with incidents from 2019 and 2020, found the two were “derelict in duty” but the department and the Florida Department of Law Enforcement attributed the mistakes to broken systems within the MCSO for processing fingerprints.
MCSO asked the FDLE to review the fingerprint issue when it came up in 2019.
Inspector Sgt. Julie Vowinkel, of the Office of Professional Standards at MCSO, wrote in a 2021 report that FDLE encouraged ongoing and/or additional training, identifying classes that would benefit the fingerprint examiners, but then seemed to accept FDLE’s conclusion that MCSO played a part in the errors due to faulty policy.
“The FDLE review also cited a lack of policies and procedures related to latent print examination and verification. Neither the Operations Directives nor the Forensics Internal Manual have procedures for latent examiners. Due to the aforementioned, I find there to be a policy failure. Policies and procedures from other agencies are currently being reviewed for adaptation to our specific needs,” Vowinkel wrote.
Nearly three years later, on Dec. 22, 2022, Calhoun wrote the state attorney’s office this update by email:
Mr. Forgie,
I want to get you up to speed on what we’ve done since the bad identification by the latent examiners that came to light in 2019. This involved examiners Tiffany Nader and Jeana Starling.
Morgan Hays … came to MCSO to evaluate the case itself as well as our internal procedures. Members of the Tampa FDLE Latent Unit also conducted an audit of other cases.
After the review by Mr. Hays and the audit by the Tampa FDLE examiners, the following recommendations were made and implemented:
A) New written procedures were implemented and added to the forensic unit manual that lay out the ACE-V process and provide a verification form for each identification and documentation on each identification to simplify the review by another examiner.
B) The examiners have been pursuing training in the use of Adobe Photoshop for latent print enhancement and are scheduled for a photoshop training class in January. They have also started using automation within the AFIS system that reduces plotting time.
C) The examiners have attended 4 training classes, including one in Examinations of Simultaneous Impressions, the issue in the misidentification. The examiners also visited the Seminole County Sheriff’s Office to review their procedures and use of Adobe Photoshop and case workflow.
D) The section will take part in yearly proficiency/competency testing.
E) Procedures involving verifications now also include technical and administrative reviews.
In addition to these steps, we also hired Tiffany Hightower who completed over 700 hours of intensive latent examiner training at the Ron Smith and Associates Latent Print Examiner Academy. She completed supervised casework with Mrs. Starling and Ms. Nader, learned our office workflow and procedures and is now a solo examiner. All three examiners take part in the verifications which includes technical and administrative reviews. All three examiners also passed proficiency testing in November 2022 with perfect scores.
Though it was a difficult process, the misidentification and resulting reviews and recommendations resulted in the creation of new written procedures and forms which will enable the examiners to consistently arrive at correct and consistent conclusions in a methodical manner. Continuing education and training will continue to keep them up to date on any trends or improvements in the latent examination field and to ensure the ongoing interaction and case work review with other professionals in their field. Yearly proficiency testing will also test our examiners and our own verification procedures. I am confident that the steps we have already taken, and continuing to look for new ways to improve, will strengthen the performance and professional reputation of each of our latent examiners going forward.
Arguably, this type of exculpatory evidence about the two fingerprint examiners would be disclosed in the state’s discovery material to the defense since 2019.
However, a review by the “Gazette” of numerous cases where both latent examiners are identified as witnesses since 2019 found multiple cases where the state’s discovery exhibit and supplemental discovery exhibits disclosed “none” for Brady material.
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