A bill that is being championed by the local police union would allow officers to appeal being put on a list used by prosecutors that lets them know if an officer has been caught doing something dishonest – and make the entire list secret.
The Brady List, as it’s commonly referred to, gets its name from a 1963 U.S. Supreme Court case in which the court ruled that a defendant has his due process violated when prosecutors suppress evidence that is favorable to the defendant.
In response to the ruling, prosecutors around the United States often keep lists of officers deemed not trustworthy as witnesses due to internal affairs investigations or other issues. That list must be provided to defendants and their attorneys.
House Bill 2114, introduced by Phoenix Republican Rep. John Allen, adds an appeal process for officers prior to even being put on that list as well as other additions, such as making it so an agency can’t use the list in hiring or firing practices.
It would also exempt the list from Arizona’s public records law.
The largest law enforcement union in Phoenix, the Phoenix Law Enforcement Association, helped craft the bill and is its primary advocate.
“This is a huge scarlet letter for officers,” PLEA Executive Director Joe Clure said.
Currently, a prosecuting agency can put an officer on the Brady List after an internal affairs investigation or disciplinary action has been taken against that officer. The bill would require the prosecuting agency to send a written notice to the officer of their intent to put them on the Brady List
The prosecuting agency must also include all corroborating evidence from the investigation and information on the appeal process, and the officer can appeal within five business days.
The officer’s name could not be put on the list until after the appeal process is complete.
“This bill, in my mind, is problematic, in terms of how it handcuffs the prosecutors who may be trying to make sure that a case is being fairly prosected,” Ryan Tait, a former Maricopa County prosecutor, told Arizona Mirror.
Tait is running for Maricopa County attorney in 2020 as a Democrat.
Tait said HB2114 could create a situation in which prosecutors could have cases overturned due to them not being able to fully comply with the rules of criminal procedure because they would be unaware of an officer’s possible misconduct that could be tied up in a lengthy appeal process when a case goes to trial.
Clure said Tait’s fear “is unfounded,” and that the union’s priority was finding a remedy for officers who he said unfairly wind up on the Brady List.
Clure gave an example of an officer who had been disciplined for joking about planting evidence on a suspect and put on the Brady List, only to later have it proven that he had never planted evidence on the suspect in question and was only speaking in jest.
Years later, the officer was in a different department in a different state and was taken off the witness stand due to being on the Brady List in Arizona. Clure said when the local county attorney was able to get a copy of the internal investigation and saw the officer was cleared of wrongdoing, the issue was dropped. Having the ability to appeal landing on the list in the first place would keep situations like this from happening again, he said.
Tait sees things a bit differently.
“I don’t know what harm ensues to innocent police officers, like the good officers who are doing their jobs right,” Tait said. “I don’t know what harm is done to those officers to make it known that, ‘Hey, this is an officer in this database that needs to be reviewed.’”
An investigation by USA Today last year found that many prosecutors across the country aren’t even properly using or tracking officers on the Brady List, sometimes leading to wrongful convictions.
Currently the Brady List in Arizona is not exempt from public record but this bill would make it so any officer who is put on the list and the list itself would become exempt.
Clure said that a “smart reporter” could get a copy of a historical list and see if an officer was on it, call the prosecutors office and ask if their office still has to disclose if that officer is on the list as a way of finding out if an officer is on the list or not.
“There is a risk that disclosing misdeeds of an officer could result in a backlash from the public, and I understand that concern,” Tait said, “it just stands to reason that the public deserves the right to know who they are giving that power to.”
Last year, the Arizona chapter of the American Civil Liberties Union and a dozen other organizations, along with some state lawmakers, asked the Maricopa County Attorney’s Office to create a more thorough list of officers accused of misconduct.
Their letter asked the office to create a “no call” or “exclusion” list that would prevent officers who have been found of misconduct from testifying in court.
Then-Maricopa County Attorney Bill Montgomery, who has since been appointed to the Arizona Supreme Court, said the existing Brady List served the same purpose, so a new list was not needed.
The letter was in reaction to reports of 75 active Phoenix Police officers who were discovered to have posted violent and at times racist messages on social media as well as to a high profile arrest that caught national attention when a Phoenix Police officer drew his gun on a black mother holding her infant child after an alleged shoplifting incident.
Allen, the sponsor of the bill, did not respond to requests for comment.