'Brady's Blind Spot: Impeachment evidence in police personnel files'

Here's an academic article by Stanford law prof Jonathan Abel titled, "Brady's Blind Spot: Impeachment evidence in police personnel files and the battle splitting the prosecution team." It reminds me of debates surrounding the newly implemented Michael Morton Act in Texas, which bolstered defense counsel's access to prosecutors' files. Prosecutors have complained of extra expense and hassle involved in making their files available. But less attention has been paid to the fact that - particularly in the case of impeachment evidence  - that there's a gaping hole in the discovery process when it comes to police misconduct. Here's the abstract from the paper:

The Supreme Court’s pronouncements in Brady v. Maryland and its progeny place a constitutional obligation on prosecutors to disclose any evidence that would be favorable and material to the defense. But in some jurisdictions, even well-intentioned prosecutors cannot carry out this obligation with respect to one critical source of impeachment material: police personnel files. Such files contain invaluable material from internal affairs investigations and disciplinary reports — information that can destroy an officer’s credibility and make the difference between a defendant’s acquittal and conviction. But, while some jurisdictions make these files freely accessible, others employ a welter of statutes and local policies to keep these files so confidential that not even the prosecutor can look inside them. And, even where prosecutors can access the files, police officers and unions have used litigation, legislation, and informal political pressure to prevent prosecutors from disclosing Brady information in these files. While suppression can cost defendants their lives, disclosure of this information can cost officers their livelihoods, as "Brady cops" may find themselves out of work and unemployable.

Using original interviews with prosecutors, police, and defense attorneys, as well as unpublished and published sources, this Article provides the first account of the wide state-to-state disparities in Brady’s application to police personnel files. The Article argues that the widespread suppression of material in these files results not simply from prosecutorial cheating, but from the state statutory and local institutional constraints that give society’s imprimatur to the withholding of Brady material. It further challenges the doctrinal assumption that prosecutors and police officers form a cohesive "prosecution team," and that, in the words of the Supreme Court, "the prosecutor has the means to discharge the government’s Brady responsibility if he will" by putting in place "procedures and regulations" to bring forth any Brady material known to the police. Finally, the Article contends that the confidentiality these files currently receive is not only undeserved as a normative matter, but also incompatible with core tenets of the Brady doctrine.

The article provides a good discussion of the issues, but regrettably fails in its survey of states to comprehend the two-tier structure of police personnel files in Texas, mistakenly claiming they're always subject to state open records law, which is false. "That these records are public removes the obligation on the prosecutor to discover and disclose them under Brady," Prof. Abel opined

But in cities which have opted in to the state civil service code (Ch. 143 of the Local Government Code), most of the file is secret so that argument doesn't hold water.

It's true, for most of the state's 2,600+ law enforcement agencies, police personnel files are available through an open records request. But about 73 law enforcement agencies have adopted the state civil-service code (most of them many decades ago in the '40s and '50s before police unions won the closed records provision at the Lege in 1989), including three of the state's five largest cities and many of the larger, regional population centers.

In those cities, disciplinary records are governed by Ch. 143 of the Local Government Code instead of the open records act. That statute lets civil service cities keep two personnel files: A public one where they keep commendations and brief summaries of disciplinary actions (defined only as suspensions or demotions), and closed files that include most workaday disciplinary violations, reprimands, reassignments, and arguably other information that should be turned over to the defense under Brady v. Maryland and/or the Michael Morton Act.

Your correspondent has long held that if cities like Dallas and El Paso, which have not adopted Ch. 143, can operate with police personnel files as open records, that's a clear indication that secrecy is unnecessary and unwarranted in civil-service jurisdictions. This article provides additional ammunition to bolster that case from both normative and legal perspectives.

Similar concerns to those described in the article regarding impeachment material in police personnel files were raised in May at the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit in the context of implementation of the Michael Morton Act. Judge Barbara Hervey pledged to explore the issue further at a future meeting of the court's Integrity Unit.

Regular readers know I think it's too early for the Lege to revisit the Michael Morton Act in 2015. I've argued that, "The Lege should give the law a couple of years to get its legs under it, for prosecutors and cops to train on it, for judges to rule on it, for appellate courts to interpret it, for analysts to study more than anecdotes, before looking to alter a law that at most needs tweaking." But if the Legislature does decide to revisit the issue, bolstering defense access to impeachment material in Ch. 143 personnel files should be near the top of the list of issues to correct.

Indeed, the best solution wouldn't require messing with the Michael Morton Act at all: Just eliminate closed records provisions in the civil service code and have all police departments play by the same rules. That would improve accountability and relieve prosecutors of the burden of searching civil service files to which they don't have access. Bottom line: The state should never have closed those files in the first place.