A bill that would allow law enforcement agents to appeal being placed on a list of dishonest officers cleared another hurdle on its way to becoming law, despite concerns from Maricopa County prosecutors.
The bill, which is the latest iteration of measures from previous years, would require 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, commonly known as the Brady List.
The Brady List 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.
The bill introduced by Rep. Kevin Payne, R-Peoria, 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.
Former Rep. Anthony Kern, who himself is on the Brady List, also tried to pass a similar bill in the past.
The legislation has the backing of police unions, which said during a Senate Judiciary Committee hearing Thursday that the bill would not prohibit prosecutors from making necessary disclosures.
But Maricopa County prosecutors disagreed, as did the Arizona Association of Counties, a lobbying group that represents all 15 county attorneys offices.
Rebecca Baker, the legislative liaison for the Maricopa County Attorney’s Office, said that the 10-day mandatory notice that a prosecuting agency would have to send could create issues in due process for defendants, as it would prohibit their office from sending Brady List information out until that 10-day period is over.
Baker said her office communicated their concerns to Payne “multiple times” and were engaged in multiple stakeholder meetings about the bill, but those concerns were not addressed.
MCAO manages a Brady List database that Baker said is used by “thousands” of prosecutors, and the bill would delay the ability for prosecutors to use that database for 10 days, depending on the situation, and delay giving exculpatory evidence to defendants.
Additionally, the agency is asking for clarification on a section of the bill that opponents of the measure say could make the Brady List confidential.
In prior years, legislation aimed to make the Brady List exempt from public records. That provision is missing from this year’s version, but a section of the bill requiring that prosecuting agencies only use the Brady List to make reports as required by law has left some worried that it would exempt the list from public records.
“Some clarity on that subsection would be helpful,” Baker said to the committee.
Proponents of the measure pushed back on MCAO’s objections.
“Bad cops will still be fired and prosecutors will still have their Brady disclosures,” Sean Mattson with the Arizona Fraternal Order of Police said, adding that the bill isn’t intended to remove the list from the public record.
Others saw another problem that could arise with the bill: overturned convictions.
Melinda Kovacs, an attorney in Phoenix, said she is concerned with how delays in disclosure could impact convictions, adding that being placed on the Brady List is a “minimal intrusion to police officers.”
Committee Chairman Warren Petersen, R-Gilbert, said he won’t support the bill on the Senate floor unless it is amended to address some of the concerns brought up by MCAO and other prosecutors. But others said it was bad policy and couldn’t be fixed.
“There are broader problems here that will not be addressed just by amending this bill,” Sen. Kirsten Engel, D-Tucson, while voting no on the bill. Her colleague Sen. Martin Quezada, D-Phoenix, agreed, adding that the Phoenix Police Department currently employs more than 100 officers who are on the Brady List.
The bill passed out of committee along a party-line vote and will head to the Senate floor for a vote.
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