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Police Officers may be Liable for Failure to Disclose Exculpatory Information under the Brady RuleManaging Risks

Jack Ryan

The law with respect to a prosecutor’s duty to disclose exculpatory evidence to a defendant is very clear. The United States Supreme Court made this obligation clear in Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 514 U.S. 419 (1995). This rule has extended to any information which may bear on the credibility of a witness and includes evidence that is known to the police but not known to the prosecutor. Kyles v. Whitley, 514 U.S. 419 (1995).

While the rules with respect to a prosecutor’s obligation have been clear, it has not been clear how these rules affect a police agency and individual officers with respect to civil liability. A number of recent cases establish that officers have a duty to disclose exculpatory evidence to a defendant, through the prosecutor. Where officers fail in this obligation they may be civilly liable under 42 U.S.C. § 1983.

In Burge v. Tammany Parish, 336 F.3d 363 (5th Cir. 2003) (cert. den’d 157 L.Ed. 2d 895 2004), the United States Court of Appeal overturned a ruling against the Sheriff of St. Tammany Parish, in his official capacity which had upheld a jury award exceeding 4 million dollars. The case involved a 1980 homicide which was investigated by Detective Hale of the St. Tammany Parish, LA. Detective Hale took several statements during the investigation, including one from the murder victim’s mother, Jean Frierson. In Frierson’s initial statement, she indicated that when her son went out on the night of the homicide, she did not see who he left with. When the case was prosecuted, Frierson’s original statement was not in the discovery package that the defendant’s attorney received. Frierson testified at trial that she saw her son leave with the defendant, Burge. Burge was convicted of the murder. Following the conviction, Detective Hale showed his supervisor paperwork that was stored in the trunk of his car, including Frierson’s original statement. When the lieutenant asked Hale why the paperwork was in the trunk of the car, he responded: “If I would have turned this in, it would have caused us to lose-it could have caused us to lose the case.”

Four years after Burge’s conviction, Frierson’s original statement came to light. Burge’s conviction was overturned and Burge filed suit against several officers and the Sheriff’s Department. While the Sheriff’s Department ultimately prevailed because Burge could not prove that the Department had a policy or practice of violating rights by withholding exculpatory evidence, Detective Hale was found to have violated Burge’s due process rights. The judgment against Hale was for over 4 million dollars and this portion of the jury verdict was not challenged on appeal.

In Gregory v. Thomas, 2004 U.S. Dist. LEXIS 7046 (W.D. Ky. 2004), the United States District Court in Kentucky refused to dismiss an officer from a lawsuit alleging that the officer violated a defendant’s rights by withholding exculpatory evidence. In that case, Detective Tarter of the City of Louisville Police Department investigated William Gregory for two rapes that occurred in the apartment complex where Gregory lived. Following Gregory’s arrest, two additional rapes occurred in the area. Continued Next Page

The third rape was disclosed at the trial, however the fourth rape was not. Gregory was convicted and spent a number of years in jail before proving his innocence through DNA evidence.

Following his release, Gregory filed a lawsuit, alleging among other things, that Detective Tartar knew of the fourth rape and failed to disclose it to the defendant in violation of Gregory’s due process rights. Detective Tartar sought summary judgment of the suit against him arguing that Gregory could not prove that Tartar knew about the fourth rape.

In rejecting Detective Tartar’s argument that he should be dismissed from the suit the court cited deposition testimony of a police officer who indicated that he had spoken to Detective Tartar about the fourth rape. The court determined that a jury should decide if Detective Tartar violated Grergory’s civil rights by failing to disclose the fourth rape.

Even federal law enforcement agents are not beyond the reach of these lawsuits for failing to disclose exculpatory information. In Manning v. Miller, 355 F.3d 1028 (7th Cir. 2004) the United States Court of Appeal for the 7th Circuit reviewed a trial courts refusal to dismiss a suit against two federal agents for their conduct and alleged failure to disclose exculpatory information during the investigation of Steven Manning, a former Chicago Police officer and informant.

In his lawsuit, Manning alleged that after he ceased being an informant, the two agents set about to frame him for kidnapping and murder in retaliation for his refusal to continue being an informant. Manning alleged that his conviction rested on the perjured testimony of a jailhouse informant, known as a liar to the agents, following his arrest based solely on a suggestive identification. Manning was convicted for the kidnapping and later convicted of murder, for which he was sentenced to death. He prevailed on appeal and his convictions were overturned.

The United States Court of Appeal affirmed the lower court’s decision in denying summary judgment and qualified immunity to the agents. The case was returned to the lower court for trial where a jury would determine if the agents were aware of exculpatory information, including the suggestive identification proceeding and the unreliable informant. If so, the agents could be liable for their failure to disclose this information.

These cases make clear that individual officers and law enforcement agencies have an obligation to disclose exculpatory evidence to defendants in criminal prosecutions. Where an officer or agency fails to disclose such information, liability may follow. One area of existing exculpatory evidence may be agency disciplinary files. Any sustained disciplinary action against an officer [who is going to be a witness in a criminal prosecution] which touches upon the honesty/credibility/integrity of an officer would constitute “Brady” material since it may impact the officer’s credibility as a witness. As such this information must be forwarded to prosecutors or expose the agency to liability. This issue has led many law enforcement agencies to take the position that officers who violated department rules and regulations impacting honesty must be terminated.

Action Steps:

Training: Officers must be trained that it is their obligation to disclose any exculpatory evidence to prosecutors prior to a criminal prosecution. This training is particularly important for agency investigators responsible for investigating and preparing cases for criminal prosecution.

Policy: Agency policy should mandate the disclosure of any and all potentially exculpatory information to prosecutors prior to any criminal prosecution or at the point that exculpatory information comes to the attention of the officer if the prosecution is already underway or has concluded.

Agency should review all officers files to determine if any officer has a disciplinary history that would impact the officer’s credibility as a witness. This information should be made available to prosecutors before the officer is allowed to testify in a criminal prosecution.

Agency policy should make it clear to law enforcement personnel that acts of dishonesty will have an impact on their ability to act as a witness in a criminal case and may force the agency into a position where termination is the only appropriate response to such disciplinary actions.

Training and policy should inform officers that in addition to potential disciplinary proceedings, they may be personally liable for a violation of civil rights where they fail to disclose exculpatory information/evidence that is material to a defendant’s conviction.

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