by Dale Chappell
Los Angeles County Sheriff Jim McDonnell wants to give a secret list of approximately 300 untrustworthy cops to the Los Angeles County District Attorney’s Office, so prosecutors know who not to call as a law enforcement witness in a criminal case. The police union, however, is fighting McDonnell in court to keep the list secret.
The list is known as the Brady list, after the seminal U.S. Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963), which held that a prosecutor’s withholding of favorable evidence from a defendant violates his due process rights under the U.S. Constitution. The list was started in 2014 to track law enforcement officers who have a history of misconduct that could affect their credibility as a witness in a trial. It has grown over the years to include the names of several hundred officers.
California is among 22 states that keep officer discipline records secret from the public eye and is the only state that blocks prosecutors from seeing police personnel records. While the list comprises but a small percentage of the roughly 9,400 sworn officers in the department, officers on the Brady list were used in more than 62,000 cases since 2000, according to district attorney records. Under Brady, the concealment of a law enforcement witness’ past conduct may affect many of those cases.
The union representing L.A. County deputies argues that giving prosecutors the names on the Brady list could jeopardize numerous criminal prosecutions. “Do we go back and overturn every conviction now?” asked Elizabeth Gibbons, one of the union lawyers. Well, yeah, if those officers can’t be trusted to be truthful on the witness stand. What’s right is right, and the sheriff, to his credit, wants to disclose the names on the list to prosecutors.
In July of 2017, a court of appeal ruled that the names on the list can be kept secret, even in pending criminal trials where the officers on the list will testify. The court ruled that the defendants can gather the information they need by asking the judge to review the officer’s file for details that could help the defendant or negatively affect the case. However, state law bars judges from disclosing information more than five years old.
Does this violate the Supreme Court’s holding in Brady? Under Brady, if the prosecution (which includes law enforcement) has evidence that a defendant could use to impeach a state witness, it must be disclosed to the defense. This question will be decided by the California Supreme Court in coming months. It has decided to rule on whether the Brady list must be disclosed to prosecutors and defendants.
Being on the Brady list, however, does not seem to affect an officer’s career much. “For me it wasn’t a big deal,” said Orlando Macias, who retired in March with a $115,000 pension. Macias was convicted in 2011 of soliciting an undercover officer on Backpage.com for sex and was ordered to pay a $654 fine. The Sheriff’s Department suspended him for 15 days.
Casey Dowling was accused of molesting a 14-year-old girl after she said he put his hand under her bra and touched her breast in his patrol car. The district attorney found “several circumstances which support the conclusion that Deputy Dowling has committed the violation alleged,” but found insufficient evidence to charge him. Dowling was promoted to sergeant and earned $189,000 last year.
Scott Maus pulled over a woman, and as she sat in his patrol car with him, the woman said he put his hand on her head and “guided her” to perform oral sex on him while he groped her. The woman told investigators that she felt intimidated by Maus, and she did not consent to the sex. Investigators found semen in the patrol car and on Maus’ uniform. The county agreed to pay the woman $150,000 as a settlement, and the county urged the department to fire employees who commit “wrongful acts” on duty. Maus kept his job, earning $210,000 last year.
Jeffrey Moore’s wife told investigators that he put a gun in her mouth and threatened her. In a subsequent incident, she said he cut up her clothes and held a knife to her. Moore admitted to the accusations to investigators and was suspended for 15 days, but even that slap on the wrist was set aside when Moore agreed to take anger management and other classes. He made $181,000 last year as a sergeant.
Jose Ovalle admitted to fabricating evidence in a jailhouse brawl, but his act of dishonesty was kept secret. He was suspended for 30 days. By the time prosecutors found out about his crime, the statute of limitations had expired, so he could not be charged. In 2008, he testified in a drug case that he saw the defendant throw a gun. When defense counsel learned about Ovalle’s past, the state dropped the charges and allowed the defendant to plead to a lesser charge. Ovalle remains employed as a sergeant, earning $235,000 last year.
Unfortunately, most defendants will never learn of a troubled officer’s past, though, unless the California Supreme Court does the right thing and permits the sheriff to disclose the Brady list to prosecutors.
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