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Investigation Shows Uneven Compliance With Brady List

MARK BRODIE: A 1963 ruling from the U.S. Supreme Court found prosecutors and police are required to disclose all evidence in a case even if it could help the defense. That includes past incidences of untruthfulness and lack of candor by police officers. The so-called Brady list, named after the plaintiff in that lawsuit, is made up of officers who've had convictions, cases of dishonesty or other issues that would bring their credibility into question. But the process of compiling and maintaining that list is not done uniformly, and as  investigation by ABC15 has found, is mainly voluntary, with no repercussions for an officer or agency failing to disclose behavior that would land an officer on the Brady list. Investigative reporter Dave Biscobing has been digging into this story and is producing a five-part series on it; it will culminate in a half-hour special on [Aug. 13]. And Dave, let's start with the basics here. How exactly does an officer end up on the Brady list?

DAVE BISCOBING: That is the scary part. There is no set standard for what requires placement on a Brady list. All 15 counties keep their own lists in their own ways, and that's part of the problem that we discovered. But in theory, it's any time an officer has been dishonest, committed a crime or has something that would affect his integrity or credibility. So that when that person comes into court, that officer comes into court, the jury can know whether or not they can trust his word.

BRODIE: So you mentioned that counties do this differently. In theory, is there supposed to be a uniform way that all counties and all states handle this?

BISCOBING: So two years ago, there's a council of the county attorney's offices. It's a semi-public agency, and they put together some best practices. But our investigation found no one is really following them all the same. Everyone's using pieces of this. Some counties aren't even keeping lists. Some counties just gave me some names. "Oh, hey, we have four officers that we kind of keep an eye on for disclosure, but we don't keep an official list." And these are counties that have long histories of questionable law enforcement conduct from their police agencies. They should have more than four officers. In fact, we found multiple cases where officers have stopped working in one county, go work in another county, and they're in one county's list and not in another where they're currently working. That's a huge problem. And so the standards, there are some guidelines. They're not required. Not everyone's following them. No one's sharing all of these names together. And so all of this exists in this problematic system where officers are slipping through the cracks all the time.

BRODIE: So obviously, there are repercussions for that in the work that the police do. And you profiled a few of them. Is there sort of an overarching theme to what you found in terms of officers who should be on the list or maybe are on the list and nobody knows about it, continuing to go about their day-to-day police work?

BISCOBING: So that's maybe the biggest problem of all this system. It is based on trust and voluntary reporting. So if you have an officer that does something wrong, here's the steps to get on the Brady list: You have to hope and trust that, A, the police department recognizes the misconduct, initiates an investigation into the misconduct, investigates it, sustains it, self-reports it to the county attorney's office, then the county attorney's office recognizes that misconduct as Brady-level, and then puts it on the list and then discloses that to defense teams after those arrests are made. Those are all the steps that have to exist for an officer to get on the Brady list. And there's no one independent of the police and prosecutors actually making sure that any of it happens. And it doesn't happen a lot.

BRODIE: So what do police departments and county attorneys and county prosecutors say about the fact that they're not really doing, it sounds like what they ought to be doing here?

BISCOBING: So really, what's been interesting so far, is no one is challenging this reporting in any way. What we found in terms of big picture ideas and again, these are undercounts based on the data we could get. And there is a lot of data out there that doesn't exist because there isn't great enough reporting. We found since 2000 something like 400, at least, cases that, where officers were sustained for Brady-level misconduct, but they weren't sent to the AZ state police board, which could decertify those officers. And at the same time, in Maricopa County, we found 175 times at least where officers were put on the list, but not for months or even years after they had that misconduct occur. Which means how many cases, thousands, perhaps, where defendants were not notified of this necessary disclosure. So no one's challenging those, those facts. And in fact, the county attorneys all agree that this is an issue. They put together these best practices. They say they're working on a statewide list. And yet those have been in the works for years and it hasn't gotten done. We put together a statewide list. We're a news organization. We had to gather this information through public records over the course of months, through a lot of persistence — we'll call it professional pestering. And yet they have access to this information. They could do it very quickly and they haven't. The police departments, to be honest with you, they're not necessarily always giving the most direct answers when it comes to this. Some departments do take this more seriously than others. So we've gotten a whole bunch of variety of different responses. Prosecutors all admit this is a problem. They're the ones that are really at the heart of this. They're the gatekeepers. They're the ones that have to disclose. It's the county attorneys. They don't disagree this is a problem. So now what we're doing is keeping pressure on them with our questions to make sure that they follow through on their promises, which is to make sure that these officers get disclosed, that they create a statewide list that they promise is going to be public, and those promises have been around for a couple of years and so we want to ensure that if that's what they're promising, that, that it happens.

BRODIE: So if there are promises to put together a list and the prosecutors around the state are putting out best practices, but they're not really being followed, it seems like that might be the kind of thing that lawmakers might step in and, and say, "This is what has to happen or you're in violation of state law."

BISCOBING: That is something that we are actually drafting up for the lawmakers now to let him know. We've informed them about our series. We have told them that once it is done airing, we want to hear their takes about how they can correct some of the deficiencies that we're finding and to ensure that the county attorney's offices do what they've promised to do.

BRODIE: Do you have a sense of whether or not this is a problem in other states?

BISCOBING: It absolutely is. It is a uniform problem. Brady v. Maryland, U.S. Supreme Court case, 1963 was really the first step. It requires disclosure of these types of things. In every case, everywhere, every state does it different, and then even at a more minute level, every county within these states can do it differently and the departments within those counties can report things differently. There needs to be uniformity here, because not only can officers leave one town and go to the other and this type of misconduct, maybe not follow them appropriately so defendants are notified, they can leave states and go to other states — and they have. And so really, this is a problem that everyone has to address and no one's gotten together at a comprehensive level to actually address it.

BRODIE: All right. That is Dave Biscobing, he's an investigative reporter with ABC15. Dave, thanks for your time. I appreciate it.

BISCOBING: Thank you.

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Mark Brodie is a co-host of The Show, KJZZ’s locally produced news magazine. Since starting at KJZZ in 2002, Brodie has been a host, reporter and producer, including several years covering the Arizona Legislature, based at the Capitol.