by Jayson Hawkins
Little Rock, Arkansas, is a typical American city. When two police officers there pinned down a suspect while a third, David B. Green, beat his face into the ground in 2011, it was not unlike incidents in other towns across the nation. That a bodycam video showed Green lied about the suspect resisting arrest was not unusual either. Nor was it unheard of that Green, despite having a record that included 19 offenses for which he received suspensions or reprimands, was allowed to stay on his job and continue making arrests for four more years.
Perhaps the least out-of-the-ordinary aspect of Green’s case is that his word was relied on to convict other people of crimes. An investigation by USA Today discovered that, over the past 15 years, officers who had committed crimes or lied about their actions on the job provided testimony in at least 4,000 cases in Little Rock. One officer, Kenneth Thompson, had been a sworn witness in nearly 700 criminal trials since being suspended in 2005 for knocking a suspect off a chair and then lying about it. Two others had each testified in more than 200 cases after committing serious offenses—one stealing a cellphone during an unreported off-duty arrest and then lying about it to internal affairs, the other recorded on a bodycam concocting a story about having to use force during an arrest.
If it seems like there should be a rule about officers with questionable characters providing sworn testimony against others, indeed there is: the 1963 U.S. Supreme Court ruling in Brady v. Maryland mandated that prosecutors must inform those accused of crimes about any evidence that could aid in their defense. This includes information about officers whose past actions cast doubts on their honesty.
Additional Supreme Court rulings have clarified that prosecutors must make defendants aware of cops’ backgrounds who may serve as witnesses. These rulings have consistently been interpreted as a requirement for prosecutors to keep a list of officers with credibility issues; however, no clear guideline exists for what sort of actions merit inclusion on the list. The consequences for failing to maintain or disclose the list are few, so prosecutors have largely been left to their own judgment as to how—or even if—they choose to meet the Brady requirement.
USA Today’s investigation uncovered little consistency in prosecutors’ Brady lists. Some included all officers who had committed crimes, while others were limited to those who had falsified evidence or lied under oath. Sometimes a guilty verdict from an internal investigation warranted inclusion; whereas, officers who had cases pending against them had their names added to others. Often prosecutors gave no indication as to why an officer’s name appeared on their list.
In Little Rock, Pulaski County Chief Deputy Prosecutor John Johnson said his office fully complies with the Brady requirements, “When this office is made aware of disciplinary actions by an officer (and) they’re going to testify as a witness, we disclose that to the judge and let the judge make an independent finding as far as whether or not something is admissible pursuant to Brady.”
Such a policy might appear to satisfy the Brady requirements, yet its effectiveness depends on the qualifying phase “when this office is made aware.” During legal proceedings in 2013, previous Little Rock Police Chief Stuart Thomas admitted that his department did not forward information about issues with officers to anyone. “I’m not aware that we provide a list or a continuing update or anything like that.”
The reluctance of police departments to pass on details that question the integrity of their officers in hardly unique to Little Rock. Some have voiced concerns that keeping a Brady list puts cops who committed minor infractions at risk of losing their jobs, yet the sole purpose of the list is to identify those whose testimony may be questionable.
That has not stopped law enforcement groups from taking extraordinary measures to avoid compliance. The sheriff’s deputies union for Los Angeles County filed a suit on behalf of 300 of its members to stop disclosure of their past misconduct. The California Supreme Court ruled against them in August 2019, but opposition from many officers’ unions to Brady requirements remains stiff.
The positions of prosecutors often reflected those of police. The USA Today investigation uncovered no fewer than 300 offices nationwide that made no effort whatsoever to maintain a Brady list.
“I do not have a so-called Brady list. I do not have a written policy,” Talladega County, Alabama, district attorney Steve Giddens, told USA Today. “I do not need one to follow the law.”
Out of dozens of law enforcement officials that USA Today contacted, only two county prosecutors showed a willingness to change their policies to meet the Brady requirements. Most others, from cities as large as Chicago to smaller areas like Columbia County, Pennsylvania, had no plans to start keeping a list.
Many places that claimed to have a list refused to make it available to the public, so it could not be judged if they were fully complying with Brady. Still others kept lists that were partial or out of date. The investigation found 1,200 cops who had been cited for dishonesty and other misdeeds yet were not included on any existing lists.
The key takeaway from the investigation was that thousands of individuals have either been charged with crimes or sentenced to prison on the basis, at least in part, of the word of cops with a history of dishonesty.
The National Registry of Exonerations has noted almost a thousand cases since 1988 where people have been wrongfully convicted due to some combination of police perjury, false testimony, and prosecutorial misconduct. Although the accused were eventually exonerated, they lost an average of a dozen years of their lives behind bars in the process. The rate of such exonerations has more than doubled over the past decade, which offers a shred of hope to those still battling wrongful convictions from inside their prison cells.
The movement toward criminal justice reform and revelations of police violence have swept new prosecutors into office who have promised transparency and change. Prosecutors in Baltimore added almost 200 officers’ names to their Brady list, while an updated list in Philadelphia has been labeled a “witch hunt” by the local police union. More concerning to the public, however, is the multitude of cities and towns whose refusal to meet Brady requirements leaves the door open for dishonest cops to continue racking up wrongful convictions.
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