By Jeff McDonald
'Brady index' identifies untrustworthy witnesses for prosecutors, but not the public..
District Attorney Bonnie Dumanis keeps a list of law enforcement officers that her prosecutors do not trust as witnesses in criminal trials, and the office will not say how many people are on the list or which agencies employ them.The so-called Brady Index is a closely guarded secret that includes officers and deputies with a track record of lying or other misconduct that could undermine credibility on the witness stand.The DA’s office rejected U-T Watchdog’s request for the list, saying the public interest in effective law enforcement outweighs any benefit to disclosing names on the index or even which agencies employ them.
“Any information that may lead to the identification of the officers, including the information you requested as an alternative to the names, is also confidential,” appellate division chief Laura Tanney wrote in response to a California Public Records Act request.
Many prosecutors maintain a Brady Index to help ensure cases are not overturned on appeal due to dishonesty or misconduct in the backgrounds of officers testifying at trial.The lists are named after a landmark U.S. Supreme Court ruling from 1963 that found prosecutors wrongly withheld exculpatory evidence from lawyers representing a murder defendant.Under Brady v. Maryland, prosecutors must tell defense lawyers if they know that an officer or deputy has a history that could impeach his or her testimony.The U-T requested Brady information from other Southern California prosecutors, which also did not release the names.
In San Diego, Tanney released three internal documents specifically requested by the Watchdog that detail how the Brady Index is maintained and updated, but nothing in those records spells out the extent of any misconduct or which departments are affected.
The Watchdog sought the information in advance of a civil trial requested by a woman known as Jane Doe, who was fondled in a 7-Eleven bathroom by former San Diego police officer Anthony Arevalos.
The case, scheduled to begin Aug. 12 in U.S. District Court, focuses on police trustworthiness and officer misconduct.
Among other things, Doe and her lawyers allege San Diego police command staff knew about previous complaints against Arevalos and did nothing to stop him from preying on young women.The city has paid $2.3 million to settle 12 lawsuits filed by victims of Arevalos, who is now serving eight-plus years in prison, although that may be reduced because the most serious charge against him was overturned on an evidentiary issue.
Doe wants more than money.
She is asking a federal judge to impose an independent monitor on the department, which she claims is fraught with cronyism and protects officers rather than investigates misconduct allegations.Linda Workman, one of the lawyers representing Doe in the federal lawsuit, said she could not discuss what she has learned while preparing for trial due to a court order.She noted that tens of thousands of pages of evidence have been sealed at the city’s request. She also said the proper handling of the Brady Index and transparency with the information it contains is critical to maintaining public confidence in police agencies.After going through full discovery in the Jane Doe case, we have serious concerns that both the letter and spirit of the Brady law are complied with in San Diego,” she said. “The Brady process is important. It makes sure trials have integrity.”The three documents Dumanis released were the Brady File Review Protocol, the Brady Index FAQs and the Legal Policies Guide.
Each of those records was referenced in a federal lawsuit filed in 2010, when a former sheriff’s deputy sued Dumanis because he could not find a job after being placed on the list.Former sheriff’s deputy Stephen Tillotson admitted lying to his boss about participating in a firearm-qualification exercise in 1998, and was fired a few months later.
Tillotson was hired by the Sycuan tribal police in 2000 after disclosing his lie. He applied for a position at the Coronado Police Department in 2008, but landed on the Brady Index after Coronado police asked the District Attorney’s Office about the 1998 incident.Tillotson lost the Coronado opportunity and was fired by Sycuan; he also was turned down by law enforcement agencies in San Diego, Oceanside and Riverside County.
In February 2012, U.S. District Judge William Q. Hayes denied Tillotson’s claim that Dumanis violated his right to pursue his chosen profession by placing him on the index.“The evidence shows that the Brady Index contains the names of 6 to 10 individuals who are still employed as police officers despite their placement on the Brady Index,” the ruling states.The 10 or fewer names on the Brady Index represent a fraction of the 5,000-plus officers and deputies employed by law enforcement agencies in San Diego County.
Several criminal-defense lawyers declined to discuss the index publicly, citing their need to work with the District Attorney’s Office in the future. But they privately questioned whether prosecutors are including all the officers that they should on the list.The number of officers on the countywide list may be low, given the public misconduct allegations within the San Diego Police Department alone.In addition to Arevalos, San Diego police have wrestled with the alleged cover-up of a detective who crashed his city-owned car while drunk in 2012; the arrests this spring of husband-and-wife officers on drug charges; a sexual-battery case against another officer earlier this year; and nine separate misconduct investigations in 2011.
Two years ago, the South Florida Sun-Sentinel reported that 137 current and former officers were on a Brady list in Broward County, home to less than about 2 million people.
In January 2014, the newspaper obtained a current list and posted it online. It contained 146 names and their respective offenses, including sexual battery, falsifying records and attempted murder.The internal Brady Index records provided by the San Diego District Attorney’s Office explain why the list exists, how officers are added to or removed from the list and how disclosures to defense attorneys work.
“The San Diego County District Attorney Brady Index is a centralized repository for potentially discoverable impeachment information about law enforcement witness,” the eight-page FAQs states. “The Index helps prevent discovery failures that might result from communication gaps via time, or the reassignment of officers of (deputy prosecutors).”
A committee of senior prosecutors meets regularly to consider whether officers should be added to or removed from the index. Officers are invited to submit their own evidence to the committee.Decisions are made case by case, and many officers evaluated by the committee are not placed on the list. The panel keeps extensive files on officers — some totaling hundreds of pages — whether they land on the list or not.“There is no master list of things that get officers on the index,” the FAQs say. “While there are at least 18 kinds of potentially discoverable impeachment noted in case law, they are not all honesty-based.”When officers on the index are asked to testify, prosecutors share details about the witness’ past with the defense team. That way criminal defense attorneys can’t easily compare notes or create their own list.The full Brady Index never leaves the District Attorney’s Office and computer access to the records can be traced internally.San Diego attorney Michael Marrinan built his practice suing police agencies on misconduct matters. He said people have a right to know if certain officers are not trusted by prosecutors.“These officers and deputies work for us — they are essentially our employees,” Marrinan said. “The idea of not allowing the public to know about employees who are dangerous or repeat offenders or are costing us in legal damages to me makes no sense.”
Margaret Dooley-Sammuli, policy director for the San Diego American Civil Liberties Union, said the public should be concerned that police known to be less than forthright are protected by prosecutors.“It’s very troubling that officers would become known to the District Attorney’s Office as being unreliable witnesses,” she said. “If officers are unreliable in court, are they reliable in our communities?”In her statement to the Watchdog, prosecutor Tanney said there is good reason for withholding the names and departments of individuals on the Brady Index.“The records are ‘official information’ as defined by Evidence Code section 1040 and 1043, and as such are recognized as being among the most sensitive and confidential of records,” she wrote.
Staff writer Greg Moran contributed to this report.
