“I think there’s a lot of burying your head in the sand,” said one defense attorney. “The DA’s not going to ask if an officer’s got problems, because once they know about it they have to disclose it to the defense.”
BROCKTON — When a police officer accused of misconduct testifies in court, prosecutors have a legal duty to disclose that their witness has a potential credibility issue.
This doctrine, established by the 1963 Supreme Court ruling in Brady vs. Maryland, can be an important check on the power of law enforcement, enabling both prosecutors and defense attorneys to identify police officers whose testimony could lead to a wrongful conviction.
But Brady disclosures, as the practice of sharing police credibility issues with defense attorneys came to be known, are handled differently by each of Massachusetts’ district attorneys, the elected prosecutors that turn arrests into criminal convictions in court.
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In Suffolk, Norfolk and Middlesex counties, which encompass Boston and its immediate suburbs, district attorneys keep public lists of law enforcement officers with potential credibility issues, sending letters to the defense outlining the accusations and convictions against any listed officers that plan to testify.
Suffolk District Attorney Rachael Rollins released her office’s Law Enforcement Automatic Discovery database in September, naming 136 law enforcement officers, primarily from the Boston Police Department and the Massachusetts State Police.
“When the credibility of law enforcement is in question, all participants in the system — and the public — should be aware of that,” Rollins said. “The people of Suffolk County deserve to know that the public officials they rely on for their safety are truly invested in it. Anything less is a betrayal of their trust and our obligation to serve.”
Defense advocates say lack of Plymouth County Brady list is problematic
Progressive district attorneys across the country have released similar information under different names, such as Brady, Giglio, disclosure or do-not-call lists.
But in some Massachusetts jurisdictions, including Plymouth County, where the vast majority of Brockton’s criminal cases are tried, prosecutors have taken a less rigorous approach to exposing potential credibility issues among local law enforcement.
A spokesperson for Plymouth County District Attorney Timothy Cruz indicated the office does not keep a Brady list tracking misconduct allegations against officers at the 27 police departments in the county, which includes the Brockton Police Department and its 187 officers.
Instead, the spokesperson said prosecutors handle Brady disclosures on a “case by case” basis.
“All of our prosecutors are aware of their obligations and requirements as members of the Massachusetts Bar to disclose potentially exculpatory evidence,” said Beth Stone, Cruz’s spokesperson.
Cruz’s office did not respond to further questions about how individual prosecutors can consistently access information regarding law enforcement officers whose credibility has been questioned. Stone did not make Cruz available for an interview.
Criminal defense advocates say relying on prosecutors to make private decisions about if and when to question an officer’s credibility can be problematic.
Numerous defense attorneys practicing in Plymouth County’s courts say they have never received a Brady disclosure from Cruz’s office. And without a public Brady list to reference, there’s little way of knowing whether local prosecutors are making the appropriate disclosures in a given case.
In an internal survey by the Committee for Public Counsel Services, Massachusetts’ public defender agency, three of the six attorneys who responded in Plymouth County said Brady disclosures “never occur” in the courts there.
Among the three attorneys who had received Brady disclosures, one said, “In my experience, this happens exceedingly sparingly in Plymouth, and only happens once the issues become public knowledge regarding specific officers.” Another said they received a Brady disclosure once, for a state trooper that had been criminally charged for their role in the overtime abuse scandal. The third indicated only that they receive Brady disclosures “sometimes.”
Three of four private defense attorneys who try cases in Brockton that were interviewed by The Enterprise say they have never received a Brady disclosure regarding a police officer’s credibility. One of them, Patrick Noonan, has practiced in the city for nearly a decade. Another, Brian Kelley, said he’s handled more than 300 cases in the county.
“In some other counties, the DA’s view their role as a check and a balance against police power,” Kelley said. “The prosecution in this county has a symbiotic relationship with police.”
Joseph Krowski Sr. was the only private defense attorney who said he had received a Brady disclosure. Still, the veteran Brockton lawyer questioned the frequency with which they’re sent out.
“There’s been a lot of burying heads in the sand when it comes to Brady obligations,” he said.
Why might a district attorney not keep a list?
The Enterprise interviewed several criminal law experts and former prosecutors to better understand why Brady lists have become a thorny issue for some district attorneys, while others have been eager to create them.
Rashaan Hall, the director of the ACLU’s racial justice program in Massachusetts, served as an assistant district attorney in Suffolk County for eight years during the 2000s, a decade when he said prosecutors took a more narrow approach to disclosing police misconduct.
“When I was in the office, I had the mindset that what we’re doing is keeping communities safe, and the misconduct or bad behavior of police officers that is not connected to a particular case isn’t relevant,” said Hall.
Now, Hall says the narrative about the “inherent integrity” of law enforcement has changed, encouraging prosecutors in some counties to maintain a more critical relationship with local police departments in order to satisfy their constituents. Brady lists are one of the best ways to make sure prosecutors are keeping tabs on local police with misconduct issues, Hall said.
“It would be a Herculean task, on top of all the other responsibilities that prosecutors have, to know all the incidents of misconduct, mistruth and bias that police officers in a jurisdiction have been engaged in,” Hall said. “Having a Brady list takes the responsibility out of the hands of an individual prosecutor.”
But oversight alone can’t explain why district attorneys treat Brady obligations so differently between Massachusetts’ counties. Hall said many decisions are affected by the biases of the prosecutors in the office.
“It’s not to say that people will hide exculpatory evidence or intentionally refuse to turn it over,” Hall said, “but it’s more in that gray area of not seeing police misconduct as potentially exculpatory evidence because of those blinders and biases that prosecutors have.”
David Rossman, a professor of criminal law at Boston University, said it “goes against human nature” to discredit your own witnesses when building a case.
“In the year I was a prosecutor, the hardest thing I had to do was hand over evidence that would hurt my case,” he said. “Prosecutors aren’t prosecuting people they think deserve to get off, they’re prosecuting people they think deserve conviction. It’s like calling your own fouls. It would be unrealistic to expect people to do a good job doing it.”
Internal lists of officers with credibility issues, which many district attorneys keep, can encourage prosecutors to hand over information they might otherwise doubt the relevance of, Rossman said.
But when it comes to publishing that Brady list for public view, Rossman said prosecutors face another personal hurdle: getting blowback from the police officers they work with to secure convictions. That can create enough tension to discourage some prosecutors from releasing the information.
Rossman said there are important benefits to consider as well.
“The advantage is that you put pressure on the police to change,” he said.
Bay State doesn’t require district attorneys to keep such lists
Massachusetts has no statutes requiring district attorneys to compile the names of officers for whom they must disclose credibility issues. Four of 11 district attorneys have voluntarily done so.
Committee for Public Counsel Services Deputy Chief Counsel Randy Gioia, the state’s highest-ranking public defender, said defense attorneys don’t have access to the internal affairs records they’d need to compile accurate Brady lists of their own in counties where district attorneys don’t provide them.
“We have to rely on the prosecutors and the police who have this information readily available,” Gioia said, “and that’s what the law says, too.”
A Sept. 8 opinion from Massachusetts’ Supreme Judicial Court clarified that prosecutors must go further than previously understood to disclose police credibility issues to the defense. Chief Justice Ralph Gants offered a specific comment on Brady lists in the ruling, one of the last opinions he wrote before his death about a week later.
“We do not possess the authority to require the Attorney General and every district attorney in this Commonwealth to promulgate a comparable policy,” Gants said, “but we strongly recommend that they do.”
In that case, the court upheld a judge’s decision allowing the Bristol County district attorney’s office to release previously sealed grand jury testimony to defense attorneys handling cases associated with two Fall River police officers who admitted to filing false use-of-force reports to protect a fellow officer.
In the wake of the ruling, several district attorneys have announced changes to their Brady policies. A spokesperson for Bristol County District Attorney Thomas Quinn said the office is “reviewing and updating our protocols.” Berkshire County District Attorney Andrea Harrington released a Brady list the same month.
Stone, the Plymouth County district attorney’s office spokesperson, didn’t respond to further requests for comment, but the office has not publicly indicated any changes to its policies.
Staff writer Ben Berke can be reached at [email protected] Support local journalism by purchasing a digital or print subscription to The Enterprise today.