Brady Cops

Published On January 1, 2014 | By Pete Eyre | Articles

testilying-copblockSelf-proclaimed “authorities” dictate that it’s a crime for you to lie to a police employee, but it’s permissible for that police employee to lie to you. This is demonstrative of the double-standards upon which today’s policing institution is based.

Police employees lie in conversations on the street (when soliciting information), in their own reports (to make their version of the “truth” fit the scenario), and in legaland (a practice so commonplace that it’s been coined ‘testilying’).

Testilying

  1. telling lies under oath; standard operating procedure for police officers acting as witnesses in trials (UrbanDictionary.com)
  2. police perjury is the act of a police officer giving false testimony (Wikipedia.org)

Apparently, while you are secondary to the police employee when on the street (despite claims that they work for you), in legaland, should a police employee be caught lying, the facade of objectivity of the criminals justice system is made a higher-priority, as the name of the police employee is recorded on a list known as the “Brady list.” From the Brady v Maryland entry on Wikipedia:

Police officers who have been dishonest are sometimes referred to as “Brady cops.” Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity

Recently we received an email from a gentleman in Michigan who questioned how Brady lists could be obtained. I didn’t know. I looked and didn’t find a step-by-step process outlined (surprise!). Thus I was motivated to write this post in the hope that you, the reader, would have some information helpful to answer this question.

Should a FOIA request be sent to each state attorney general (as they are atop the police hierarchy in each state), or to each county attorney (as the prosecutor, who’d then be privy to such info), or to each police outfit (who possess the files necessary for the Brady classification to be made), or is there another, less-laborious means?

I did inquire of a lawyer bud in NH, who noted that there, the list isn’t called a “Brady list” but a”Laurie list” after the case State v. Laurie. He said each defendant had the right to such information for those who were going to be called to testify in their case at legaland, and that he questioned whether police outfits would release such information to the public, noting that it may be claimed it’d violate the police employee’s personnel file.

Also, another friend is inquiring of his lawyer friend based in California on how best to proceed.

Hopefully between those leads, and the input generated from this post, a process can be determined, and the names of all known Brady cops can be acquired and posed here to CopBlock.org.

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About The Author

Pete Eyre is co-founder of CopBlock.org. As an advocate of peaceful, consensual interactions, Eyre seeks to inject a message of complete liberty and self-government into the conversation of police accountability. Eyre went to undergrad and grad school for law enforcement, then spent time in DC as an intern at the Cato Institute, a Koch Fellow at the Drug Policy Alliance, Directer of Campus Outreach at the Institute for Humane Studies, Crasher-in-Chief at Bureaucrash, and as a contractor for the Future of Freedom Foundation. He later hit the road as co-founder of the Motorhome Diaries and Liberty On Tour, and now resides in the 'shire.
  • Alvin

    If they are willing to lie on the stand, what makes you think they are going to give you a “list” of their habitual liars? Further, if they were compelled by law to provide said “list”, what makes you think they will help you obtain it?

  • John Q Public

    Its not a FOIA request per se. It looks like its part of a discovery request. It’s not only police, but witnesses in general.

    The prosecutor must disclose an agreement not to prosecute a witness in exchange for the witness’s testimony.
    The prosecutor must disclose leniency (or preferential treatment) agreements made with witnesses in exchange for testimony.
    The prosecutor must disclose exculpatory evidence known only to the police. That is, the prosecutor has a duty to reach out to the police and establish regular procedures by which the police must inform him of anything that tends to prove the innocence of the defendant. However, the prosecutor is not obligated to personally review police files in search of exculpatory information when the defendant asks for it.
    The prosecutor must disclose arrest photographs of the defendant when those photos do not match the victim’s description.
    Some state systems have expansively defined Brady material to include many other items, including for example any documents which might reflect negatively on a witness’s credibility.
    Police officers who have been dishonest are sometimes referred to as “Brady cops.” Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity.

  • John Q Public

    Oh yeah. This new format SUCKS.

  • truthspew

    Well – here’s some advice. Lean on your city councilors, state representatives and senators, federal elected representatives and senators. Pass a law that all Bray nee Laurie list items need to be publicly posted on a web site and include the ORI of the department (They all have one!) and the office name, rank and serial along with a reason for inclusion.

    It’s 2013 – we should have transparency into police forces.

  • Shawn

    @JQP

    “Police officers who have been dishonest are sometimes referred to as “Brady cops.””

    Here is a good question. Why aren’t they referred to as unemployed? Why, if cops are such a noble group, is someone who lied in a report or on the stand allowed to keep his position?

  • Common Sense

    I took a peak at the “list” from MCSD. Its goes back 15+ years and a vast majority of those on the list have been terminated or resigned.

    I don’t think the list means what you think it means…

  • RadicalDude

    “John Q Public says:
    January 1, 2014 at 4:02 pm

    Its not a FOIA request per se. It looks like its part of a discovery request. It’s not only police, but witnesses in general.

    The prosecutor must disclose an agreement not to prosecute a witness in exchange for the witness’s testimony.
    The prosecutor must disclose leniency (or preferential treatment) agreements made with witnesses in exchange for testimony.
    The prosecutor must disclose exculpatory evidence known only to the police. That is, the prosecutor has a duty to reach out to the police and establish regular procedures by which the police must inform him of anything that tends to prove the innocence of the defendant. However, the prosecutor is not obligated to personally review police files in search of exculpatory information when the defendant asks for it.
    The prosecutor must disclose arrest photographs of the defendant when those photos do not match the victim’s description.”

    Wow. This secrecy of the police is a major due process issue. Why should their files be secret if they are public servants? So it’s up to a prosecutor to decide what evidence is “exculpatory”? When by legal ethics they are not SUPPOSED to be neutral. They are supposed to actually be prosecuting “cases” on a good faith belief in the allegations they are making. So how is it that it should be up to them to determine what is or isn’t exculpatory when their job is to PRESUME YOU GUILTY? ?This is one of the worst conflicts of interest built into the judicial system. Of course, it is loaded with contradictions and conflicts of interest, how could a violent monopoly provide justice on an optimal level of efficiency? It is never subjected to the competitive marketplace of ideas like voluntarily provided services are, so what is the incentive to improve the system? Especially when one considers that those who would stand to benefit the most from maintaining the status quo are those who run the system and violently enforce their monopoly?

  • Alvin

    CS, I’m curious to know. Just what percentage of those on that list is acceptable to you for them to retain their jobs? Is it 50%, 33%, 25%, or 10%. For me, ANYONE granted the trust of the public should be held to an utmost standard. If even one officer has been proven to be a liar and he is allowed to maintain his employment, that is one too many in my view. These police officers don’t grant any leniency or leeway to the public, the public should match same with same in this regard.

  • John Q Public

    RD, I don’t make up the law or SCOTUS decisions. All I did was look up the process, which is the same thing Pete could have easily done. There isn’t a whole lot of research done by the authors on this site, that’s for sure. I’m sure each state has their own bylaws based on the Brady decision. Just look at your state’s law and see how it works. If you don’t like it, there are ways to change it. What you need to do is petition your local lawmakers to encourage them to put pressure on local law enforcement for transparency and to edit or change laws that apply to this. If you don’t like the elected officials in office, vote them out or run against them yourself. Most, if not all stated follow Federal FOIA guidelines. Here’s the list of FOIA exceptions.

    http://www.fbi.gov/foia/foia-exemptions

    The Freedom of Information Act [5 USC 552], or FOIA, generally provides that any person has a right—enforceable in court—of access to federal agency records, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions. When a portion of a record is withheld from public release, the subsection of the FOIA law describing that exemption or exemptions may be found listed in the margin next to the space where the withheld text would have been found. The list below describes the type of material withheld under each subsection of the FOIA.

    Exemptions:

    (b)(1) (A) Specifically authorized under criteria by an executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified to such Executive Order #12958 (3/25/03).
    (b)(2) Related solely to the internal personnel rules and practices of an agency.
    (b)(3) Specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
    (b)(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential.
    (b)(5) Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.
    (b)(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
    (b)(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

    A. Could reasonably be expected to interfere with enforcement proceedings;
    B. Would deprive a person of a right to a fair trial or an impartial adjudication;
    C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
    D. Could reasonably be expected to disclose the identity of confidential source, including a state, local, or foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
    E. Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or;
    F. Could reasonably be expected to endanger the life or physical safety or any individual.

    (b)(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
    (b)(9) Geological and geophysical information and data, including maps concerning wells.

  • RadicalDude

    Thanks for the info John Q. To address/clarify Pete’s inquiry with another question:
    Is there even necessarily an “official” Brady list, or is the “Brady list” as such just something defense lawyers circulate amongst themselves on a more informal basis?

  • John Q Public

    RD, that is something I’m not sure of. I couldn’t find a public list for my state. I’ve studied a bit more and it all points to the discovery process for a trial. I did find this from 2007:

    http://thefoiablog.typepad.com/the_foia_blog/2007/02/brady_disclosur.html

    The Court of Appeals for the D.C. Circuit has specifically ruled that an agency’s Brady obligations in Criminal Discovery and its disclosure obligations pursuant to a FOIA request are not co-extensive. In Boyd v. Criminal Division of the United States Department of Justice, et al., Appellant Boyd argued that there was information that the government should have released to him during the pendency of his trial pursuant to Brady v. Maryland, 373 U.S. 83, 86 (1963) that he was entitled to pursuant to his FOIA request.

    For years, requesters have made this argument. However, the Court disagreed, and stated that “the disclosure obligation that Brady imposes at a defendant’s criminal trial is not the same disclosure obligation as imposed under FOIA by Congress.” slip op. at 13-14. Thus, I believe the effect of this opinion is that it will make it more difficult for requesters to get information under the FOIA that they and their counsel did not receive during criminal discovery.

  • John Q Public

    A little more… it seems that the “Brady list” isn’t anything official. There is nothing specific that says there must be a list of names. It seems that copblock is getting hung up on a footnote of the overall Brady case. Here is a pretty interesting read from 2004:
    http://www.fjc.gov/public/pdf.nsf/lookup/bradymat.pdf/$file/bradymat.pdf
    Here are some examples of Brady disclosure:
    The prosecutor must disclose an agreement not to prosecute a witness in exchange for the witness’s testimony.
    The prosecutor must disclose leniency (or preferential treatment) agreements made with witnesses in exchange for testimony.
    The prosecutor must disclose exculpatory evidence known only to the police. That is, the prosecutor has a duty to reach out to the police and establish regular procedures by which the police must inform him of anything that tends to prove the innocence of the defendant. However, the prosecutor is not obligated to personally review police files in search of exculpatory information when the defendant asks for it.
    The prosecutor must disclose arrest photographs of the defendant when those photos do not match the victim’s description.
    Some state systems have expansively defined Brady material to include many other items, including for example any documents which might reflect negatively on a witness’s credibility.
    Police officers who have been dishonest are sometimes referred to as “Brady cops.” Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity.

  • Ariel

    JQP,

    “Brady List” is an umbrella phrase for lists of police found to be untrustworthy. My state keeps one, my county keeps one, and IIRC it is kept by the State AG and the County Prosecutor. While the prosecutor may or may not be (I’m hedging because of likely state variation) obligated or responsible to review police personnel records, they are responsible if they know. The PD is also responsible if they know. As you pointed out.
    We are going through Milke again because it was known that Saldate had a problem with facts.
    What I don’t understand is why poison a case by not disclosing. I do however understand a mindset of certainty where hiding this or that isn’t important because, well, the guy is guilty and we know it damn it.

  • Common Sense

    1000-yard Alvin,

    Job retention has many variables. It all depends and its a case by case basis.

    If you are dreaming of some 100% honest utopia you live in a fantasy world. Everyone lies or has lied.

    There is a difference between “misleading statement” and a “lie.” When Bush declared “no new taxes” and then raised them, was that a lie? How about “keep your doctor/plan?” There is no profession or occupation that is saintly. Even the Catholic church routinely concealed abuse for decades.

    There is a legal standard that must be met for a perjury charge to apply. The police lying to a suspect in an interview and an officer lying on the stand are two different things.

    What was said? I recall there was a story from Davy V months ago about “officer’s lying” about a stop. But no one could present a transcript of what was actually said. Context means something and proving perjury is difficult. Was it a lie or a matter of perception?

    Perjury is a very serious charge. In some states it is a life felony to “bear false witness.” Its not something the state pursues for anyone very often because is so difficult to prove. Just look back to the man recently freed for rape/torture in Chicago. His own friends apparently lied to keep him in prison for decades, will they be charged? Highly unlikely.

    Officers are/have been in fact charged with perjury, but there is usually a great deal more evidence then a misstep on the stand.

  • Alvin

    Hmmm. Okay, so using your logic, it would be alright for the advocates of the most radical thought to just cast accusations upon the police. They wouldn’t be lying would they? I mean, according to you, just claim it for it can’t be “proven”. I guess you’d be alright with what happened to the Duke Lacrosse team members then. Accusations led to charges that led to real world harms and in the end everyone responsible for the lies gets off with minimal or no repercussions. Yep, that is the America you advocate for. No Thanks.

  • Common Sense

    1000-yard Alvin,

    “Radical accusations” have and will always be used against the police, or the government, the military, or anytime one sides feels its in the right and the other is in the wrong. Deciding what factual, misleading, misinterpretation, and false are all different things. An “activist” can claim anything, the “raping of their civil rights” but what actually happened usually changes as more information develops. Clearly, there are cases of police misconduct, no one will say different, but each incident needs to be looked at separately.

    Claims against the police, false claims, go back decades. Look at Tawana Brawley in the 1980′s. This was a huge deal, but in the end, the victim made it all up. All those who propped her up were all sued by those defamed by her false claims. Ironically, she too was sued by the officers and prosecutor but was never criminal charged.

    The DA/Prosecution has a legal standard during serious cases, including rape. Most states, if not all, forbid the state from administering a polygraph to a rape victim; so their statements are taken on face value. “He said, She said” can be the flip of coin on whom you, the court, or a jury will believe. You can draw a comparison between the Duke case (2005) and the Steubenville case (2012), the later had “digital evidence” and the former had scant evidence. In the end, the state dropped all charges of rape for the Duke players. Ironically, she (Magnum) had filed a previous claim of “gang” rape years prior and withdrew those claims as well. The zealous DA (up for re-election) was jailed and disbarred for his role in the case, but the “victim” was never prosecuted for making false claims. Why? Who knows. Sometimes the state pursues charges of “false report” or perjury, but sometimes they don’t. It all depends. Sara Ylen was in fact convicted of not one false rape report but two; freeing a man falsely convicted after serving 10 years for rape and sparing two more from prison. The cases do exist, they just don’t make national headlines. I think DA/Prosecutor’s have learned to not just run with what’s said by a “victim” but ensure that actual evidence exists.

    .nycourts.gov/press/old_keep/brawley.htm