When DA doesn’t consider an officer reliable, should public know?

Why We Wrote This

How do you best maintain public faith in the U.S. justice system? More prosecutors are publicizing do-not-call lists of officers whose testimony they consider tainted, raising questions about due process.

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Chicago Police Officer Joseph McElligott prepares to testify during the first-degree murder trial of former Officer Jason Van Dyke for the shooting death of Laquan McDonald Sept. 17, 2018, in Chicago. Mr. Van Dyke was found guilty of second-degree murder.

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At a time when public faith in the U.S. justice system is wavering, some prosecutors are expanding and publicizing do-not-call lists of officers whose testimony is considered unreliable. But that has raised a crucial concern: balancing that push for greater accountability with due process and potential reputational harm to the officers.

These lists have shot into the public eye amid debate over when officers might be added to the lists and whether the lists should be made public. Critics of the lists have referred to them by a weightier name: blacklists.

Supporters say the lists can serve to foster a culture of honesty and integrity. In many agencies, if an officer is barred from testifying in court they are often reassigned and replaced by an officer who could be a credible witness in court.

Not maintaining, and enforcing, a do-not-call list “has the strong tendency to keep down officers who are 100% honest and truthful and diligent in favor of officers willing to cut corners,” says Philadelphia district attorney Larry Krasner.

“It’s important to recognize that there’s a heck of a lot of good, honest, decent, hardworking officers in the rank and file,” he adds.

When Larry Krasner took over as Philadelphia’s district attorney in January last year, the office was full of filing cabinets from the previous administration. In them, his staff found a red folder with the words “damaged goods” written on the front.

Those "damaged goods" were Philadelphia police officers with histories of misconduct that could render them problematic as witnesses in court. Mr. Krasner, who took office after a 30-year career as a criminal defense and civil rights lawyer in the city, was not impressed.

“In my opinion that list was nothing more than window dressing,” he says. “In no way was it a sweeping attempt to get at the truth” of the breadth of police misconduct and untruthfulness in the city.

Since then his office has been compiling its own such database. Prosecutor offices around the country keep lists of this nature, often referred to as a do-not-call list or a Brady list – the latter in reference to the U.S. Supreme Court’s 1963 decision in Brady v. Maryland that prosecutors must turn over to the defense any evidence that might exonerate the defendant. These lists have shot into the public eye in recent months amid debate over when officers might be added and whether the lists should be made public. Critics, often police unions, have referred to them by a weightier name: blacklists.

Police officers often provide some of the most critical testimony in a trial, and receive a presumption of trustworthiness that many other witnesses – especially criminal defendants – do not, experts say. At a time when public faith in the U.S. justice system is wavering, some jurisdictions are considering expanding and publicizing Brady lists to restore that faith. But that has raised a crucial concern: balancing that push for greater accountability with due process and potential reputational harm to the officer.

“A police officer’s value in the criminal justice system is their ability to tell the truth,” says Ronal Serpas, a professor at Loyola University New Orleans and former chief of the New Orleans Police Department. “That’s what they should be, a presenter of truth and facts. If they can’t do that, then one of the fundamental building blocks of criminal and civil justice is lost.”

Vilified forever?

Most states, in a variety of ways, keep police disciplinary records from public view. Some states, including New York and, until recently, California, keep police disciplinary records completely private. This has led activists to pressure prosecutors to create these Brady lists, expand them, and make them public.

California has some of the toughest laws in the country protecting law enforcement privacy. The state supreme court softened one of those laws last week, ruling unanimously that law enforcement agencies can alert prosecutors if an officer who is a potential witness has a history of misconduct that might affect the outcome of the case.

The court said it tried to “harmonize” state laws with Brady requirements, noting that law enforcement is required to comply with Brady just as prosecutors are.

“Law enforcement personnel are required to share Brady material with the prosecution,” wrote Chief Justice Tani Cantil-Sakauye. “The harder it is for prosecutors to access that material, the greater the need for deputies to volunteer it.”

Matt Rourke/AP
Philadelphia District Attorney Larry Krasner speaks with members of the media during a news conference in Philadelphia, Feb. 6, 2019.

Mr. Krasner is one of several prosecutors elected in recent years on a platform of progressive policies to implement Brady lists, and this summer has brought demands from activists around the country for prosecutors to include officers who “exhibit racist or violent views.”

St. Louis Circuit Attorney Kimberly Gardner announced in June she was adding 22 officers to her “exclusion list” after the Plain View Project, a Philadelphia-based watchdog group, surfaced racist Facebook posts they had made.

Earlier this year, three candidates for district attorney in New York’s Queens borough said they would make its database of problem cops public. Melinda Katz, who won the election, said that while she would prosecute officers who lied on the stand, she would not make the database public, the Queens Daily Eagle reported.

Police unions have fought the maintenance of do-not-call lists. The California case stemmed from a lawsuit brought by the Los Angeles County Sheriff's deputies union arguing that allowing alerts to prosecutors would violate state law. In Philadelphia, the local chapter of the Fraternal Order of Police sued over Mr. Krasner’s database last November, saying that being on it could result in “lost wages, damages to reputation and professional harm to those police officers.”

“There’s going to be times when they’re not going to call an officer in certain cases,” the group's president, John McNesby, told the Philadelphia Inquirer, “but the bottom line is: Are they going to be vilified forever, are they going to be blackballed forever?”

A judge threw out the lawsuit last week. The union did not respond to a request for comment, but Mr. Krasner says the database both “changes almost every day” and allows officers to contest their inclusion on it.

“If they’re going to be added to the database they’re notified and given opportunity to, without an attorney, come in and state the reasons why they think they should not be,” he adds. “It’s simply not true they have no recourse, and it’s simply untrue that we’re unwilling to change things and don’t take people off.”

A “small” fix

Prosecutors are widely regarded as the most important actors in the criminal justice system, with the power to make charging decisions, negotiate plea deals, and dismiss cases altogether. Law enforcement, with the power to bring anyone it touches into the criminal justice system, is almost as powerful.

Brady lists can be an important tool in holding police and prosecutors accountable, but even if they become uniform and public, systemic issues will remain, says Kate Levine, an associate professor at Yeshiva University’s Cardozo School of Law.

“This is potentially emblematic of an extremely small problem in a world of just outlandish discretion and power on the part of both prosecutors and police,” she adds.

“If one person doesn’t end up getting in prison based on the lies of a police officer, that’s something,” she continues, “but what’s most important to stress for me is that the criminal legal system is fundamentally broken in ways that these small interventions will not fix.”

Some law enforcement experts believe that if agencies took a harder line against officers who lie or commit other serious misconduct, do-not-call lists wouldn’t be necessary. Mr. Serpas said that in seven years as chief of police in Nashville, Tennessee – a department of more than 1,200 officers, where you could be automatically fired for certain offenses – he only had 10 or 11 cases where an officer was dismissed.

“The idea that officers should be concerned that leadership is going to go off the farm and fire officers willy-nilly, that’s not what happens,” he says.

“My experience is other officers support that,” he adds. “My experience is they prefer to be in an organization with a reputation for truthfulness than not.”

Supporters of the lists say they can foster a culture of honesty and integrity. In many agencies, if an officer is barred from testifying in court they are often reassigned and replaced by an officer who could be a credible witness.

Not maintaining and enforcing a do-not-call list “has the strong tendency to keep down officers who are 100% honest and truthful and diligent in favor of officers willing to cut corners,” says Mr. Krasner. “We have 6,500 active police officers and we have a much, much smaller number in that database. The real effect of this is to elevate all the ones who aren’t a problem.”

“It’s important to recognize that there’s a heck of a lot of good, honest, decent, hardworking officers in the rank and file,” Mr. Krasner adds.

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