New law could keep police officers off Arizona’s ‘Brady list’

Police officers accused of misconduct will have a chance to appeal before they’re put on a “bad cops” list, under a new state law signed by Gov. Doug Ducey. 

The bill signed by Ducey requires that a prosecuting agency send a notice to any law enforcement officer at least 10 days before they consider placing them into a rule 15.1 database, also known as a Brady List database.

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’s due process is violated when prosecutors suppress evidence that is favorable to the defendant. 

In response to the ruling, prosecutors around the United States began keeping lists of officers deemed untrustworthy as witnesses because of internal affairs investigations or other issues. That list must be provided to defendants and their attorneys.

The bill, introduced by Rep. Kevin Payne, R-Peoria, adds an appeal process for officers prior to being put on the list as well as other additions, such as not allowing an agency to use the list in hiring or firing.

“It purports to fix a problem with Brady while getting that problem wrong,” Jared Keenan, Senior Staff Attorney at the ACLU of Arizona told the Arizona Mirror. “The real problem with Brady is it captures too few officers, not too many.” 

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. 

Roughly 1,400 Arizona officers are on some form of a Brady list, according to an investigation by ABC15, but no statewide list of dishonest officers exists. Each county prosecuting agency keeps its own “Brady list” as an internal record. 

“If the officer thinks they were wrongly accused of some misconduct, knock themselves out,” Rich Robertson, a certified private investigator told the Mirror. “They should be able to challenge those accusations in some form.”

Robertson said that he and others took issue with the bill’s previous versions, which tried to prevent the list from being a public record or tried to keep disparaging information on officers from being released. 

A previous version sought to exempt the list from public record law. The Phoenix Law Enforcement Association helped craft the bill and was one of its main advocates. 

Former Rep. Anthony Kern, who himself is on the Brady List, tried to pass a similar version of the bill in the past.

As for how it will impact Brady and disclosures? 

“This bill cannot change the constitutional duties that prosecutors have to disclose what is generally referred to as Brady material,” Keenan said. “At the end of the day this bill is a solution looking for a problem.”

Keenan said he is concerned about the message the bill sends to communities of color in the wake of last summer’s protests over the police killings of George Floyd in Minneapolis and Dion Johnson in Phoenix. 

“All of these things in the context of when they are happening is very troubling,” Keenan said. “Our legislature responding in this way is disheartening and quite frankly scary to those communities that have been impacted by these issues.” 

In his signing letter for the bill, Ducey said it offers “fairness and transparency” to officers before being placed on the Brady list. 

“This is an important step to continue fostering responsible and respectful law enforcement officers by ensuring good officers are not unfairly punished, while not tying the hands of law enforcement leadership from discipling officers who tarnish the reputation of law enforcement officials,” Ducey said.