In 2019, a national report found that St. Louis Police Department officers had made racist Facebook posts. Shortly after, St. Louis prosecutor Kimberly Gardener announced that she was adding those police employees to her office’s Brady list – the “do not call” list of police whose credibility issues would undermine any case in which they are involved.
“When a police officer’s integrity is compromised in this manner, it compromises the entire criminal justice system and our overall ability to pursue justice,” Gardener told reporters.
“The creation of [Brady lists] is a well-settled best practice and is common among prosecutors’ offices nationwide, including at the local, state and federal level,” wrote a group of nearly 60 current and former prosecutors, law enforcement officials, and experts from across the country in a 2019 letter supporting Gardener’s Brady list. “We believe that the creation of a Brady list – such as the one maintained confidentially by the St. Louis Circuit Attorney’s office – is a necessary and recognized way to meet the prosecutor’s important role and ethical obligations as a minister of justice.”
Last month, Middlesex County, Massachusetts, prosecutor Marian Ryan said of her Brady list, which includes 124 police with histories of misconduct, theft, overtime abuse, false reports, excessive force, harassment, problematic police chase, assault, and more: “We are ensuring the integrity of our prosecutions. This is serious work that we're doing. We're sometimes taking people's liberty away — taking some of their resources. We need to be certain that we are doing that in a way that is substantiated.”
Or, as Boston prosecutor Rachael Rollins said of her Brady List, “When the credibility of law enforcement is in question, all participants in the system — and the public — should be aware of that.”
The results of an ACLU of Connecticut investigation suggest that Connecticut prosecutors are not following the leads of those colleagues across the country, but are instead relying on cops to self-report wrongdoing.
Since the 1963 U.S. Supreme Court case Brady v Maryland, prosecutors have been required to disclose pertinent information that might be favorable to the defense in a criminal case, including information about whether a police employee involved has credibility problems. For decades, legal scholars and practitioners have interpreted Brady as requiring prosecutors to keep track of police whose histories prevent them from being credible witnesses. The idea is that if prosecutors aren’t keeping track of and regularly updating these lists, they won’t be able to fulfill their obligation to provide information to the defense whenever a prosecution arises involving the non-credible cop. In addition, under Connecticut state law, prosecutors must disclose any exculpatory information in their possession to defendants without being asked.
This month, the ACLU of Connecticut sent a Freedom of Information request to all state’s attorneys offices in the state’s prosecutorial arm, called the Division of Criminal Justice (DCJ). Our request, which also went to the chief state’s attorney, sought copies of both Brady lists (police officers who should not be called as witnesses) and policies (protocols ensuring the discovery, maintenance, and disclosure of problem police).
Based on the responses that we received, no Connecticut state’s attorneys are keeping lists of problem police officers. Only three have any Brady policy, and none of those policies seems designed to fully inform prosecutors about police.
Based on the responses that we received, no Connecticut state’s attorneys are keeping lists of problem police officers. Only three have any Brady policy, and none of those policies seems designed to fully inform prosecutors about police.
A long, slow road to disclosure
Brady has been in effect since 1963, and Connecticut’s state law requiring unprompted disclosure of exculpatory information since 1978. In 1985, the legislature tasked the Division of Criminal Justice (DCJ) with creating universal policies for all prosecutors statewide. It is unclear if Connecticut prosecutors have a statewide Brady policy today, but as recently as 2014, it seems they did not.
In 2009, more than half a century after Brady and more than two decades after the DCJ was tasked with creating uniform policies, Connecticut’s state’s attorneys chose not to have a statewide Brady policy, instead leaving it up to each state’s attorney and their judicial districts. It is unclear if any state’s attorneys did so. By September 2013, state’s attorneys seemed, once again, to be discussing whether to adopt a statewide policy. Three months later, prosecutors decided to ask police for their input, with Chief State’s Attorney Kevin Kane reaching out to the Connecticut State Police and the Connecticut Chiefs of Police Association, a police lobbying group. Five months later, in February 2014, the Division of Criminal Justice responded to a Freedom of Information request by asserting that it did not have a Brady policy – 51 years after the Supreme Court ruling.
In July 2014, Connecticut prosecutors were considering “whether a formal policy should be adopted.” In September 2014, state’s attorneys seemed intent to distribute a draft policy amongst each other before sharing with line-level prosecutors, but the public trail of information seems to stop after that moment, and it is unclear when or if prosecutors ultimately adopted a statewide policy.
What we found
Today, based on the response to our 2020 FOI request, only three prosecutorial offices in Connecticut – the Division of Criminal Justice, New Haven Judicial District, and New Britain Judicial District – seem to have any Brady policy. No state’s attorneys seem to be keeping Brady lists.
DCJ was the only agency to respond directly to us. In an email, the DCJ forwarded us its own Brady request and disclosure policies (referred to by the DCJ as a “Giglio request policy,” after a different U.S. Supreme Court case on a related subject). It also sent copies of its ethics guidelines and policy, as well as the state courts’ rules of professional responsibility and criminal procedure, the latter two of which are not set by prosecutors. The DCJ also enclosed the Brady policies for the New Haven and New Britain judicial districts.
We asked the DCJ to clarify whether there were any other Brady policies or lists, and whether the DCJ’s response should be considered the response for all prosecutors in the state or just for itself. The DCJ confirmed that there are no other policies or lists, and that its response was on behalf of all the prosecutorial offices statewide.
Prosecutors who have no policy for discovering and maintaining information about untrustworthy cops are hamstringing their own ability to follow the law, calling into question prosecutors’ practices in the 11 of 13 Connecticut judicial districts that do not have Brady policies. And even among the three prosecutorial divisions that do have policies, all ultimately abdicate the responsibility to identify and track police whose credibility would undermine a case.
Police policing themselves
In all three policies prosecutors provided, Connecticut prosecutors have left it up to police to self-report their own bad behavior. In all three, the only way prosecutors identify police with credibility issues is by sending a letter to a police employee’s chief of police, and only then under certain conditions.
In all three policies prosecutors provided, Connecticut prosecutors have left it up to police to self-report their own bad behavior.
Across the country, other prosecutors have relied on news stories, investigating themselves to find evidence of racist behavior, criminal charges or convictions, municipal-ordered independent investigations, judges’ rulings, internal police investigations (including those that were not sustained or completed), other prosecutors’ lists, complaints of misconduct from members of the public, referrals from the Department of Children and Families, information from other non-police government agencies, records of civil lawsuits from members of the public; and evidence of bias or profiling based on race/gender/ethnicity/gender identity or expression determined by the prosecutor’s discretion. Others are less clear about sources but have potentially relied on high-profile cases of excessive force caught on video and more.
Connecticut prosecutors, however, are limiting themselves solely to information volunteered by police agencies, which itself has been filtered through self-serving internal disciplinary practices. Connecticut prosecutors tell police chiefs that they do not need to report allegations of misconduct or other problems unless they were considered to break the internal rules that each police department sets for, and applies to, itself. This is the only way mentioned in any Connecticut Brady policy for prosecutors to identify problem police – not through lawsuits, arrests, convictions, records of racist rants, or any of the other ways their colleagues across the country try to fulfill their legal responsibilities.
Police internal affairs (IA) investigations are conducted by police, for police, and as a result rarely end in misconduct findings. IA investigations often look solely at whether an employee violated an internal department policy, and those policies seldom include rules for how police treat the public. In Connecticut, a significant number of police contracts also guarantee disappearing discipline -- so while the system is designed to prevent officers from facing discipline for misconduct, in the rare situations when they do, many police departments ensure that disciplinary records disappear after certain amount of time.
The result is that Connecticut prosecutors are likely not gathering police credibility problems, in ways that defy commonsense. Take a 2019 example for practical effect.
A national civil rights group discovered that East Hampton police officer Kevin Wilcox was a member of the “Proud Boys,” a group that has associated itself with misogynist, far-right views as well as white supremacist violence and calls for political violence. Wilcox publicly admitted that he was a member. Yet after an internal affairs investigation, the police chief announced that there wouldn’t be repercussions and that an internal affairs investigation was “unfounded,” as Wilcox hadn’t violated any department policy. Wilcox retired from employment with East Hampton without repercussion.
Under the three Brady policies in Connecticut, which rely solely on police chiefs reporting sustained internal affairs investigations, if Wilcox were to become a police officer again, his membership in the Proud Boys wouldn’t even come up (nor, for that matter, would the excessive force lawsuit in his past unless his employer independently concluded that the allegations comprised violations of its rules). So, a prosecutor working on a domestic violence case, for example, would not know of Wilcox’s association with a group that espouses a paleolithic view of women.
By restricting themselves solely to sustained investigation records, Connecticut prosecutors have already severely undermined their ability to identify Brady cops. And in a state where even those records often go away, the likelihood that they are getting enough information to fulfill their responsibilities under the law is very, very small.
Why don’t prosecutors want to know about bad cops?
First, it works to prosecutors’ advantage to restrict and delay their own access to exculpatory information, because they undoubtedly view their duty to disclose it as only extending to information that they already have. Nationwide, very, very few criminal cases go to trial; about nine out of ten end in plea agreements, making the plea bargaining and evidence discovery phases particularly critical. If Connecticut prosecutors don’t know about misconduct, they don’t have to tell a criminal defendant, and by delaying their inquiry until the eve of trial, they can plea bargain without having to disclose. In all three policies prosecutors provided, prosecutors only attempt to identify problem police if a case is “trial-ready,” a term that has no defined meaning and varies from court to court but generally signifies that discovery is finished:
“Requests will not generally be made until a case is ready to proceed to trial.” -- New Britain judicial district Brady policy
Second, restricting what they know about police misconduct avoids ruffling cops’ delicate feathers. Police and prosecutors work together every day, and police are exceedingly touchy about suggestions that they ever commit misconduct. So it’s no surprise that the Division of Criminal Justice’s Brady policy prioritizes police employees’ “reputations”:
“Prosecutors shall ensure that special care is taken to protect the confidentiality of such information and the privacy interests and reputations of law enforcement agency employee-witnesses.” – Division of Criminal Justice Brady policy
This same philosophy has been rejected by the courts. In 2019, federal prosecutors were ordered to disclose records showing that New Britain police employee James Wozniak lied about receiving a motorist’s consent to search a person’s car. Although the New Britain police department’s “investigation revealed recordings of the incident which showed [that] Wozniak did not have consent and his incident report was false,” the New Britain department nonetheless—and incredibly—found no misconduct on Wozniak’s part. The government then dismissed the criminal case, but argued that Wozniak’s privacy interests supported the court forever sealing mention of his wrongdoing. Judge Vanessa Bryant soundly rejected that attempt by prosecutors to prioritize a police employee’s feelings over the legal system’s obligation to pursue justice, writing:
“The public has not only a right, but a need to know the contents of the records at issue because they document the violation of the Constitutional rights of a Connecticut citizen, by a public official acting in the course of his official duty to serve and protect the public.”
Importantly, some of Connecticut’s prosecutorial offices would have never discovered Wozniak’s problems, because they expressly tell police agencies not to report misconduct allegations that are not substantiated by the department itself. So when New Britain decided that lying is not really lying, it also ensured that Wozniak’s behavior would not be reported to state prosecutors in the future.
What’s ahead
While the U.S. Supreme court case after which Brady lists get their name was not based on a police witness, it set a precedent for how prosecutors must treat information about all witnesses, including police. Given the power and prevalence of police in the criminal legal system—including as arresting officers—prosecutors who are not tracking police across cases are willfully blinding themselves to one of the biggest evidentiary sources they have.
It is hard to know what the consequences of Connecticut prosecutors’ decisions to know as little as possible about bad cops has been. But history from other places paints a troubling picture.
In Philadelphia, the previous district attorney, unlike Connecticut prosecutors, did keep a Brady list. Like Connecticut prosecutors, however, he limited it to police with recent internal affairs findings of misconduct. He also did not share it with the public, nor did he share it with defense lawyers. As a result, Philadelphia has had hundreds of convictions overturned in the past five years, reflecting hundreds of people unnecessarily imprisoned because prosecutors both weren’t identifying and weren’t disclosing bad cops.
In their email to us, the Division of Criminal Justice was careful to state that there have been “no cases decided in the last five years on direct appeal that have found a state prosecutor has engaged in a Brady or Giglio violation.” But, as Philadelphia’s example has shown, criminal defendants don’t know what they don’t know, and prosecutors currently hold all the cards in a deck they’ve purposefully made small.
And while the Division of Criminal Justice’s carefully worded sentence might be technically correct, it’s not the whole truth. The Division of Criminal Justice itself was recently involved in a case in which its top prosecutor failed to disclose evidence that ultimately led to a man’s exoneration. In 2018, federal prosecutors dropped a case after a federal judge ordered a retrial due to Chief State’s Attorney Kevin Kane’s failure to disclose letters from a witness to the defense. The letters, which detailed the witness’s hope for a reward in exchange for his testimony, were only discovered after federal prosecutors searched Kane’s office.
“People don’t believe there’s any accountability for police officers who engage in misconduct on the job. And I really believe that that jeopardizes the legitimacy of our entire criminal justice system,” said New Britain State’s Attorney Brian Preleski recently, as he sought to become the first state inspector general tasked with investigating police misconduct.
And he’s right. The thing is, prosecutors are complicit in that lack of accountability.
When Connecticut prosecutors choose not to meaningfully discover or track police whose credibility issues could undermine a case, they have chosen to prop up a system that does not hold police accountable. They are giving a pass to police with histories of misconduct, and to the policing system that keeps those employees on the job. In doing so, prosecutors undermine the legitimacy of the criminal legal system.
But more importantly, they are risking sending people to prison based on the arrest or testimony of bad police. There were more than 73,000 criminal cases in Connecticut last year. There are 9,361 people incarcerated in Connecticut today, 70% of whom, because of systemic racism, are Black and Latinx. If even one person among those thousands faced incarceration or is imprisoned today based on an arrest or testimony from an untrustworthy police officer, it would be one too many.
