Don't destroy your career: The Brady list and the ruinous impact of a lie
The underlying offense being lied about is oftentimes less serious than the covering lie which results in a worse disciplinary penalty
By Terrence P. Dwyer, Esq.
You are the duty supervisor and your shift is dull, nothing is going on, and in order to release some steam and bond with your subordinates you suggest to goof around and make some prank calls. The calls are made, you and your COs have a good laugh and life goes on except for one small problem: The individual (or organization) did not share in your mirth and joy. An internal investigation ensues and you, the person next up on the promotion list, deny any knowledge or involvement during an internal investigation interview. Clearly you have lied, but you did so to protect your career—what is the worst that can happen to you?
The above scenario is similar to the facts of one of the underlying cases in King v. Erikson, 89 F.3d 1575 (D.C. Cir.,1996) which was appealed to the U.S. Supreme Court and resulted in LaChance v. Erikson, 522 U.S. 262 (1998).
In LaChance the Supreme Court held that a government agency can take adverse administrative action against an employee because the employee made false statements in response to an underlying charge of misconduct.
As an attorney handling disciplinary cases for well over a decade, I have time and again seen disciplinary charges wherein an individual is charged with lying during an internal interview and severely punished, sometimes even terminated for that lie. This is a frustrating aspect of disciplinary cases to deal with for two reasons.
First, is the fact that the underlying offense being lied about is oftentimes less serious than the covering lie which results in a worse disciplinary penalty than originally contemplated.
Secondly, the law enforcement profession requires integrity and trust and someone who lies violates that trust and tarnishes the integrity of the profession.
As a matter of public policy courts have routinely supported administrative sanctions, including termination, for individuals who are found to have lied during the course of their employment.
What happens to those individuals who are not terminated, who are disciplined but allowed to resume their careers? They are for the most part tarnished by their placement on Brady lists.
In the 1963 case of Brady v. Maryland the U.S. Supreme Court placed upon prosecutors an affirmative obligation to disclose to the defense all exculpatory information, otherwise it amounts to a due process violation. The evidence to be disclosed includes statements of witnesses, physical evidence and any evidence that would impeach a prosecution witness.
Eleven years later Chief Justice Burger, writing for the majority in Giglio v. United States, said, “When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule.” The general rule he was referring to was exculpatory disclosure announced in Brady v. Maryland.
Any law enforcement officer who has been proved to have lied during a disciplinary investigation, or in any other context, will be placed on a Brady list which is then provided to prosecutors. If an officer on the list is scheduled to testify in a case, a prosecutor will be notified by the agency so that the appropriate disclosure can be made. However, despite the half-century since the Brady decision the concept of Brady lists is of more recent vintage, dating back only about fifteen years.
Many agencies are either still trying to formulate some policy on how to deal with this type of Brady disclosure or are just not strictly adhering to the requirements. This latter policy choice has severe implications for the integrity of criminal prosecutions and creates a subsequent appeal issue if an officer who provides key testimony is later found to have a sustained disciplinary outcome or other finding of dishonesty or untruthfulness in his or her personnel file.
A 2011 federal district court case from Connecticut is instructive in this regard. A criminal defendant was not provided information until his scheduled sentencing hearing about a testifying officer’s prior disciplinary record for theft and falsification of a police report. None of this information was made available at the trial when it could have been used by defendant’s attorney to impeach the testimony of the officer.
The district court, upon the defendant’s motion, granted a new trial as to one of the key criminal counts because if the officer’s “misconduct been known to the defense and disclosed to the jury through cross-examination, the jury would have had a reason to doubt [his] credibility and thus his testimony.” (United States v. Cummings, 2011 U.S. Dist LEXIS 43364.)
Aside from the potential of an appeal of a criminal conviction, individual officers and their agencies can be civilly liable for failure to disclose Brady/Giglio material to the prosecutor.
Aggrieved criminal defendants have been granted access to the courts in bringing federal civil rights claims for such failures. Various courts have held that it violates clearly established law to fail to disclose Brady material (see eg., Newsome v. McCabe, 256 F.3d 747, 752-3 (7th Cir., 2001); Moldowan v. City of Warren, 578 F. 3d 351, 382 (6th Cir., 2009); Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 401 (4th Cir., 2014)).
Others have denied the qualified immunity defense for a failure to disclose Brady material (see, Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir., 1988); Ricciuti v. New York City Transit Auth., 124 F.3d 123 (2nd Cir., 1997)).
While termination of the lying officer is certainly not an unexpected or unusually severe result in some agencies, not all jurisdictions treat such behavior similarly.
California has a statute, part of the Public Safety Procedural Bill of Rights, which prohibits an agency from taking any adverse action simply because an officer has been placed on a Brady list (CA Gov. Code §3305.5(a)). However, this does not foreclose a California agency from disciplining the officer for the underlying conduct which led to the officer being placed on the list. Other agencies across the country, without similar statutory restrictions, do consider an officer’s disciplinary record and whether or not that officer has been placed on a Brady list in making promotions.
No one wants to be accused of being a liar or branded as one. It is especially stigmatizing in the law enforcement profession wherein officers routinely submit reports and are called upon to testify in various judicial proceedings. Law enforcement officers know the devastating impact of a lie, in fact they often warn suspects not to lie to them because the officer will find out the truth. For the officer facing an administrative disciplinary issue this is sound advice to follow.