WILMINGTON — For the last seven years, the District Attorney’s office overseeing New Hanover and Pender counties has compiled a list of law enforcement officers whose personal or professional misconduct threatens to invalidate their potential testimony in court — but the list is confidential under state law.
The District Attorney’s office maintains a committee that consults this list, along with Internal Affairs files for any officer that testifies, but that doesn’t always mean the information is divulged to the defense. Even when it is, it doesn’t always make it admissible in court.
Still, despite its limitations and restrictions, the list represents a catalog of law enforcement officers whose conduct makes them untrustworthy in the eyes of the courts. For some law enforcement agencies, this would make an officer ineffective — but many such officers remain employed.
The list would certainly be of interest to defense attorneys and, moreover, the general public — who might well ask why these officers were still on the force. But North Carolina’s restrictive personnel records laws mean that the list, and much of the information about officer misconduct, will never see the light of day unless those laws are changed. The District Attorney’s office would not even release depersonalized information, for example, the total number of officers on the list, or statistics on the seniority, race, age, or gender of those officers.
While the policy in the Sixth District, covering Pender and New Hanover counties, was recognized as one of the nation’s ‘best practices’ by an article in the Stanford Law Review, the Brady-Giglio list is a tool for protecting Constitutional rights — not increasing public transparency.
The Wilmington-area Brady Giglio list
The list is compiled under what’s called Brady-Giglio, a pair of United States Supreme Court rulings that requires law enforcement and prosecutors to turn over any evidence or information that could be exculpatory (i.e. beneficial) to the defendant in a criminal case. Giglio, the second of the two rulings, specifically deals with ‘impeachment information,’ including the past misconduct of officers who will serve as witnesses in court.
In 2013, District Attorney Ben David instituted a policy for handling the potential disclosure of this information in criminal cases in New Hanover and Pender counties. Under this policy, devised by former Ohio trial judge and Sixth District Assistant District Attorney Tom Old, much of the gathering and evaluation of this material is handled by a Brady-Giglio committee of at least three prosecutors; this committee oversees potential testimony from officers and civilian employees (for example drug or forensic lab employees) from both county’s Sheriff’s Offices, along with the Wilmington Police Department and other municipal police departments.
Here’s how it works:
- Any time a law enforcement officer testifies in New Hanover or Pender county court, the DA’s office contacts their agency to request their Internal Affairs (or Professional Standards) file
- If there is evidence of misconduct from the IA file, from criminal records (felony or serious misdemeanor charges or convictions), or from result of an investigation by the DA’s office, then the committee will consider whether or not it is “material” to the validity of the testimony — in other words, whether not the information would ‘impeach,’ or render questionable, the officer’s testimony in court
- That material can include any of the following:
- The honesty and veracity (or dishonesty and inaccuracy) of the officer in the past (including inconsistent testimony)
- A bias, or conflict of interest or motive
- Felony or serious misdemeanor convictions (under N.C.G.S. § 8C-I, Rule 609)
- Evidence questioning an expert witness’s expertise
- Evidence of a racial, religious, or personal bias against a defendant (either specifically or as a member of a certain group)
- The committee ‘looks back’ at least ten years for this information
- The decision on whether or not to release the information is made by the committee — not releasing the information must be a unanimous decision, and if there’s an impasse the District Attorney decides
Once the Brady-Giglio committee decides that ‘impeachment’ evidence should be released, the name of that officer goes on a list. While the committee looks back ten years, once an officer is on the list, they stay on the list permanently.
Limitations to the list
The list only covers officers who testify, not all officers involved in a case.
Here’s a worst-case scenario: Ten officers are involved in a use-of-force incident. Nine of them have incidents of excessive force documented in their personnel files. The one officer with a clean IA record can still testify, and nothing about the other officers is required to be disclosed by the prosecution because Giglio applies to witnesses.
The list also only includes officers whose misconduct was found to be material to the testimony they are going to give in a particular case. Not all misconduct is disclosed.
Here’s an example from the Sixth District’s 2013 policy:
There will be instances in which material would be turned over in one type of case and not another. For example, a sustained complaint for use of force that showed a potential bias against Native Americans would not be Brady/Giglio material in cases not involving excessive force or Native Americans. However, a sustained violation involving honesty less than ten years old would be disclosed. In the instance involving conduct that might only be disclosed in rare cases, the prosecutor should consider seeking a protective order.
It’s worth noting that defendants, and their attorneys, don’t get a seat at the Brady-Giglio committee table. Decisions about what to disclose are made by prosecution alone, so those prosecutors must balance their desire to win cases with their Constitution requirement to disclose information, even when those two are in direct conflict. (This doesn’t mean defense attorneys can’t file motions to get access to that information, but North Carolina case law can make this difficult.)
The process of evaluating officer misconduct also includes room for negotiation: both the officer and the head of their agency (i.e. a Sheriff of Chief of Police) may be invited to provide written comment or additional information. It’s important to note, however, that this is not the case where officers have had sustained IA violations, criminal charges or convictions, or been terminated.
The Brady-Giglio list’s limitations explain how and why some officers might remain employed, despite misconduct that would invalidate their testimony.
Some officers are barred from all testimony. These officers and the head of the agency that employs them receive what is sometimes called a ‘death letter,’ indicating that the DA’s office will no longer accept their testimony in any case. There’s no set ‘limit’ that triggers such a letter, it is sent at the discretion of the DA’s office.
Even though death letters represent severe misconduct, they still aren’t public and there’s no public record of which officers have received them. There’s anecdotal evidence, however, that some ‘death letter’ recipients remain employed — often, but not always, moved to desk jobs where they are unlikely to be involved in incidents requiring them to give testimony.
Constitutional rights vs. transparency
For decades, Brady-Giglio has forced a battle between law enforcement agencies and prosecutors’ offices. While often ‘law and order’ work hand in hand, when it comes to personnel information about officers, that’s not the case.
Under the Brady-Giglio rulings, prosecutors have a Constitutional obligation to provide defendants with information about officers who will testify against them. But law enforcement agencies, especially in states with strict personnel records privacy laws, have used “litigation, legislation, and informal political pressure” to prevent the release of this information, according to a 2015 article in the Stanford Law Review.
Police disciplinary records are public in just 12 states. In 15 states, their release is restricted to only the most severe incidents leading to suspensions and terminations. In 23 states, including North Carolina, disciplinary records are almost completely confidential. Even in cases where officers are suspended for gross misconduct, law enforcement agencies are still restricted by state law. In some cases, this allows those agencies to duck public accountability but, by the same token, it also hamstrings those agencies that do want to publicly address misconduct.
However, the sometimes fraught relationship between prosecutors and law enforcement agencies when it comes to Brady-Giglio material is rarely about transparency — it’s about Constitutional rights.
And, while most would agree that upholding the Constitution is an admirable goal, those who want a deeper sense of accountability and transparency from law enforcement can’t rely on court procedures that still have to abide by state statutes that frequently keep officer misconduct in the dark.
Send comments and tips to Benjamin Schachtman at email@example.com, @pcdben on Twitter, and (910) 538-2001