A 2News investigation reveals some Utah prosecutors and police departments are failing to keep “Brady lists” intended to keep track of police officers who have documented histories of dishonesty.
Utah doesn’t have a system in place to ensure prosecutors are fulfilling their constitutional obligation to disclose Brady information to criminal defendants and their attorneys.
What’s more, the public has no way of knowing about misconduct because personnel files and disciplinary records of police officers in Utah are private records. Defense attorneys merely have to serve the prosecutor with a request pursuant to Rule 16 of the Utah Rules of Criminal Procedure to review disciplinary records.
Personnel files are not automatically disclosed to prosecutors and police departments have discretion on whether they share them at all. During our investigation, we heard a troubling pattern from several criminal defense attorneys, including David Ferguson, who claims Brady information is not being disclosed to them by prosecutors.
“I’ve never received any kind of record at all on any case unless the media had already publicly exposed the officer's misconduct," Ferguson said.
We also found that not every county attorney keeps a Brady list and, in the state's most populous county, who’s on the list is a well-kept secret.
In 1963, the U.S, Supreme Court in Brady v. Maryland ruled that police and prosecutors cannot withhold exculpatory evidence, which is evidence that’s favorable to the accused and might show innocence.
As a result, prosecutors began maintaining “Brady lists” to track law enforcement officers with integrity concerns.
In 1971, the U.S. Supreme Court in Giglio v. United States also requires prosecutors to disclose an officer’s dishonesty while on the job, prejudice, racial bias, and criminal convictions to defense counsel in criminal cases. Defense attorneys can use this information known as “impeachment evidence” that bears on an officer’s credibility as a witness during court proceedings to discredit the officer.
A judge reviews the information. The jury will then consider if the testimony and evidence from that officer with a documented history of untruthfulness in their personnel file is credible.
Our investigation also found that some police department top brass either don’t know about the misconduct or know about it but fail to investigate and hold their own accountable. Sometimes they fail to turn that information over to county attorneys who are required to disclose this information under Supreme Court case law. Prosecutors also have an ethical duty to disclose this information under Utah Rules of Professional Conduct.
2007 TROOPER OF THE YEAR
One such officer was former Utah Highway Patrol Trooper Lisa Steed who arrested innocent people for driving under the influence. Steed was admired for the number of arrests she made and was ultimately awarded 2007 Trooper of the Year. But a storm of internal controversy was brewing. UHP knew something wasn’t quite right with her arrests.
Top brass knew they had a problem, but the department didn’t tell prosecutors about it for 12 months.
In an internal memo dated May 14, 2010, Sgt. Rob Nixon who was Steed’s supervisor at the time, indicated the Salt Lake City Justice Court declined to prosecute one of her cases due to insufficient evidence. Nixon began a review of 20 of her 2009 DUI-drug reports where the subject was allegedly impaired on marijuana.
Nixon noticed her reports were marked with many signs of impairment, so he checked them against toxicology lab reports and found 11 of the 20 arrests showed no impairing drugs in the system and four had nothing at all. He wrote:
I completely understand that we will get someone that shows nothing in their system from time to time.
I know that there are cutoff levels that the toxicology lab will not show if it is too low. However, I feel this is a pattern.
He warned that, “This is something that needs to be addressed before defense attorneys catch on and her credibility along with the DUI squad’s credibility is compromised.”
The accusations of wrongful arrests continued to mount as cases were dismissed due to insufficient evidence. What’s more, Steed had a documented history of being untruthful on the witness stand. Criminal defense attorney Joseph Jardine didn’t mince words following a court hearing he called Steed a “liar” and said it was “merited.”
At least three judges dismissed cases she was involved in saying Steed had credibility issues including Judge Robert Faust of the Utah Third District Court and Judge L.G. Cutler of the Salt Lake Justice Court.
As it pertains to disclosing Brady material, the earliest known communication between UHP and prosecutors about Steed was twelve months later when the Salt Lake County District Attorney’s office sent a letter requesting internal documentation UHP kept on Steed after the office received information that raised concerns about Steed’s DUI investigative methods.
The letter made clear the DA's office had a duty to disclose this information. That was March 22, 2011. It wasn’t until early 2012 that Steed landed on the Davis County Attorney’s Brady List. That's according to Davis County Attorney Troy Rawlings, who recently confirmed this to 2News.
Criminal defense attorney David Ferguson, a member of the Utah Association of Criminal Defense Lawyers, said the state dropped the ball in the Steed matter.
“That’s when Utah woke up, and there is such a thing as a full-on dirty cop," Ferguson said.
THE DANGER OF A LYING COP
Jensie Anderson is the legal director of the Rocky Mountain Innocence Center and is a clinical professor of law at the University of Utah's S.J. Quinney College of Law. She says prosecutors’ failure to disclose Brady material can lead to wrongful convictions. What’s the harm?
The danger of a lying cop is it’s almost unfathomable. The danger is multi-fold a lying cop can make it so that an innocent person gets convicted of a crime that they didn’t do. And not only do they then send the innocent person to prison, but the real perpetrator may still be on the street and may still be committing crimes,” Anderson said.
She cites the most recent report from the National Registry of Exonerations which shows official misconduct was the leading cause of wrongful convictions in 2019. The registry lists all known defendants who were convicted of crimes in the United States and then exonerated by new evidence since 1989. The registry contains 2,400 cases as of February 27, 2019.
In 1,296 of those cases, 54%, misconduct by government officials contributed to wrongful convictions. More than a third (35%) of all exonerations included misconduct by police officers and almost as many involved misconducts by prosecutors.
The report found that concealing exculpatory evidence contributed to the convictions of 44% of exonerees, more than any other type of official misconduct known of. Police officers were disciplined in 19% of the exonerations with police misconduct, about five times the rate for prosecutors.
Anderson largely blames it on the fact that police disciplinary records are concealed even when complaints pile up. “This lack of transparency in police departments with police records whether they’re investigative records or whether they’re records of police misconduct is something we’ve never been able to get.” Anderson further says, “There are systemic problems with holding police and prosecutors accountable.”
NOT ALL COUNTY ATTORNEYS KEEP BRADY LISTS
2News contacted all 29 county attorneys in Utah and found that eight county attorneys’ keep an active Brady list. Eight do not keep one. Twelve counties told us they would keep a list but currently don’t have any officers on it. One county did not respond to our repeated requests.
SALT LAKE COUNTY BRADY LIST
Salt Lake County District Attorney Sim Gill knows all too well about his duty to disclose Brady and Giglio material about the credibility of law enforcement witnesses. Gill says he keeps a Brady List but declined to give 2News a copy or divulge the names of the officers on the list. The reason: he says there are different kinds of misconduct on the list and not all are tied to issues of truthfulness.
“Our obligation is to ensure a fair process, not to create a list for ridicule," Gill said.
Gill, however, admits that there have been times when his office has failed to disclose Brady material to the defense.
“We can only turn over the information that is turned over to us, otherwise we don’t know what’s going on out there," he said.
This is why he says his office routinely reaches out to law enforcement agencies to remind them to turn this information over so he can meet his constitutional duty to disclose. He says there are times when they learn of things that have not been forwarded to his office, so they reach out to that agency.
There are instances when the Utah Peace Officer Standards and Training board takes action against an officer’s certification, and Gill's office finds out about it after the fact. The DA’s office also sends out an annual questionnaire for law enforcement officers to fill out.
Even so, Gill says he’s reliant on police chiefs to make sure they investigate their own and if there are documented instances of dishonesty, he says there might be a collateral consequence if they don’t share that information with his office.
A point Bountiful Police Chief Tom Ross agrees with.
We’ve seen cases play out in real life where critical, critical cases have been lost based on an officers’ character, competence,” Ross said. “We don’t want officers that are liars.”
He says some of the Brady information that comes forward is from other police officers which he respects in the sense that they are trying to do the right thing. However, in that same vein, Ross is concerned in ensuring that officers have due process in that there’s a marked difference between an accusation versus a sustained finding of this type of misconduct.
As president of the Utah Chiefs of Police Association, he believes that police chiefs are trying to do the right thing in terms of their requirement as part of the prosecution team to discipline dishonest officers and report sustained findings of untruthfulness to prosecutors. “In my dealings with our members in our association, I believe overwhelmingly that chiefs are wanting to do and are trying to do the right thing."
He said police chiefs know that they must hand over Brady material to prosecutors and chastised those who don’t.
Was it reported, if it wasn’t, then shame on the agency and or chief or sheriff or anyone that did not put that process in place.
Ross said chiefs, sheriff’s, officers, attorneys, and others spent over a year putting together a best practices document about the Brady disclosure requirements in an attempt to get everyone on the same page.
LAW ENFORCEMENT AGENCIES FAILED TO REPORT SOME MISCONDUCT
Key findings from a 2019 performance audit of Utah Peace Officer Standards in Training revealed discipline for peace officer misconduct appeared to be lenient.
The audit also found that peace officer dishonesty undermines credibility and effectiveness and law enforcement agencies failed to report some cases of misconduct to POST as required by law.
DISHONESTY AND DECEPTION
Several state lawmakers including Rep. Andrew Stoddard (D-Dist. 44) and Sen. Jake Anderegg (R-Dist. 13) are behind bills in the 2021 legislative session centering on police reform.
Stoddard’s bill goes to the very core of Brady v. Maryland and Giglio v. United States. Stoddard wants to give Utah Peace Officer Standards in Training council members more power to suspend or revoke a law enforcement officer's certification if the officer is found to have engaged in conduct involving dishonesty and deception.
If the finding was sustained, POST would make it public on its website. Stoddard says this is a “baby step” to eventually create a statewide Brady database for the public.
While Sim Gill will not make his Brady List public due to state law that restricts the release of disciplinary records and confidentiality rights, he believes it’s time for a change and his office is working with lawmakers on this very legislation.
Gill says he along with forty other prosecutors around the country, “In an open letter, we said that we should have both a federal database as well as a state database because then there’s no question that if you engage in this kind of behavior then you will go on that list and that list will be published.”