A bill that would allow officers to appeal being placed on a list used by prosecutors that lets them know if an officer has been caught doing something dishonest is back for another try this legislative session, this time without a controversial measure that would have kept the list a secret.
The bill 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, 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 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.
“This bill has about a four-year history,” Jack Lunsford, a lobbyist for the Arizona Conference of Police and Sheriffs, told the House Military Affairs and Public Safety Committee, adding that House Bill 2295 has had the most iterations of any bill he has worked on in 40 years.
The 2020 version also 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, also tried to pass a similar version of the bill in the past.
“It’s basically a very simple due process bill to give officers an opportunity to be heard before a… hearing,” Joe Clure of the Arizona Police Association told the committee. Clure said that the bill would not interfere with a prosecuting agency’s ability to make a Brady List disclosure.
Defense attorneys disagree.
“If that is what this was, then that would be fine,” Armando Nava, a criminal defense attorney who also represents Arizona Attorneys for Criminal Justice, told Arizona Mirror. “You don’t see any other group getting this sort of treatment.”
Nava said other people who end up in similar databases or lists, such as a gang database, don’t get notifications of placements on those lists and are not allowed to appeal.
“It treats somebody differently for no other reason than their employment,” he said.
Additionally, the bill could hurt how prosecutors do their jobs and handle cases, Nava said.
Not all Arizona county prosecutorial agencies have Brady Lists, and if the measure were to pass, Nava worries that the additional bureaucratic work the bill would create would lead more places to avoid creating a list.
Nava said he understands that officers shouldn’t be falsely accused of misdeeds and should be able to have due process, but said “tinkering” with Brady List disclosures will have consequences on due process for everyone else.
“It’s the same reason people go grocery shopping with a grocery list,” Jared Keenan, an attorney who focuses on criminal justice issues for the American Civil Liberties Union Arizona, said. “It is a tool to make it more likely that a prosecutor will have the information they need.”
Keenan said many officers in Arizona are also still employed while on Brady lists in Arizona. An investigation by ABC15 found that 220 Arizona officers on Brady lists are still employed and no statewide list exists. Roughly 1,400 Arizona officers are on the lists.
“We’ve worked extremely hard on this bill,” Payne said before voting yes in committee to advance the bill to the full House of Representatives.
The bill moved forward along party lines with Rep. Jennifer Jermaine, D-Chandler, voting present due to concerns over the bill.
“I’m just very unsure on this bill so I am going to vote present,” Jermaine said.
Some of her Democratic colleagues, such as Rep. Daniel Hernandez, D-Tucson, signaled that they could be in support of the bill if it is amended on the House floor.