By John V. Berry, www.berrylegal.com
One of the latest issues for law enforcement officers, which has come under increasing review involves Giglio-type or Brady-type lists that are compiled by prosecutor's offices and law enforcement employers. The existence of these lists have been both known and unknown to officers, but as the media has increased scrutiny over law enforcement officer-related media events/cases, these types of lists have come under renewed scrutiny. I have also seen cases where prosecutors have disliked a law enforcement officer and unjustly placed them on such a list knowing the employment ramifications for such officers. Frankly, even if well-intended, it is difficult for prosecutors to keep such a list accurate or evenly applied, in our experience. Additionally, if such a list has been developed, it is important to develop strong due process procedures that permit the law enforcement officer to challenge their placement or continued listing on the Giglio-type lists.
What is a Giglio list?
A Giglio or Brady list is a list compiled usually by a prosecutor's office or a police department containing the names and details of law enforcement officers who have had sustained incidents of untruthfulness or some type of candor issues. As most law enforcement officers know, Giglio and Brady are two Supreme Court cases which touch upon the duties of prosecutors to turn over key materials to defense attorneys. These types of lists are used sometimes for disclosure purposes to defense attorneys in connection with prosecutions. When a police officer testifies as a government witness, the prosecutor has the same obligation as with other government witnesses to seek out and disclose Giglio/Brady type information. As a result, prosecutors seek out such information. The prosecutor may then use such information in a case and/or also maintain a file of that information for future cases.
If an officer falls on a Giglio or Brady-type list, prosecutors may decline to take any criminal cases associated with these officers forward in the future. They can still do so, but often choose not to because some prosecutors are risk adverse. These types of lists, unfortunately seem to often be inconsistent, too broad and are not applied evenly through law enforcement employers. Furthermore, these types of lists can lead to employment issues without meaningful redress by the officer. Sometimes when a jurisdiction maintains a computerized Brady or Giglio list, more problems arise because data is not input in the same manner or with the same consistency by each prosecutor. As a result, an officer could be potentially Giglio-impaired, but still not on the list and then not be disclosed. This can cause problems later if a conviction results.
Giglio Lists Have Become Too Broad, Inconsistent and Usually Lack Due Process
Many Giglio lists have started to become far too expansive. In some cases, we have seen officers alleged to have Giglio issues because they have engaged in conduct unbecoming or simply did not follow orders; items having nothing to do with their honesty or credibility. We have seen other prosecutors attempt to get ethics opinions from local state ethics counsel to confirm their belief that they would need to turn over negative information about law enforcement officers. This can be unfair because the officer, in many cases (jurisdictions) has no ability to challenge (or even be heard) before such determination is made. The determination is too often in the eye of the beholder, leaving situations where officers may be placed on such a list and others not placed, even if based on the same or similar conduct.
Some jurisdictions have provided special protections for officers, but officers nationwide deserve (at the very least) the ability to challenge an alleged Giglio or Brady issue. There needs to be legislation requiring that an officer have the ability to challenge such a determination, either administratively, or through the courts. Otherwise, the process given to a law enforcement officer is just not fair considering the serious risks that they take everyday to protect the public.
Proposed Resolutions for Congress and the States
In order to protect law enforcement officers, they need the absolute right to challenge Giglio materials (or placement on a list), be it on a case by case basis in the courts or through an administrative process. One proposed process would be to provide the following rights to a law enforcement officer:
Step 1: A federal, state or local prosecutor identifies a potential Giglio or Brady issue involving an officer;
Step 2: The law enforcement officer is placed on a Giglio or Brady list identifying him or her as having potential credibility issues;
Step 3: The law enforcement officer is notified by the prosecutor's office that there is a potential Brady or Giglio issue regarding their testimony in a particular case, or in general;
Step 4: The law enforcement officer is provided the basis and evidence for the Brady or Giglio allegation;
Step 5: The law enforcement officer is given the opportunity to respond to the Brady or Giglio issue before an impartial judge;
Step 6: If the impartial judge finds that their is no Giglio or Brady issue, he or she then notifies the prosecutor that they have met their Brady/Giglio duty to investigate and that such information need not be provided because no credibility issue exists; and
Step 7: If mitigated, the law enforcement officer will then have no further duty to disclose the issue and the prosecutor will have met their burden of providing of due diligence without damage to the officer's career.
The difficulty with the present system is that many officers get placed on a Giglio or Brady list right now, but have no ability to challenge such an allegation made by the prosecutor. As a result, it is often the case that the prosecutor then notifies the officer's employer that they will never use the officer's testify again and the officer is then terminated but has no or little ability to challenge the allegation that they are Giglio or Brady impaired. The system presently in place for most law enforcement officers in this regard is completely unfair and unjust. The system of protection for law enforcement officers must change to enable them to challenge false or suspected Giglio or Brady allegations.
Law enforcement officers and their unions should be aware of Giglio or Brady issues that affect them and their careers. Our law firm advises and represents law enforcement officers in these types of matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here.