In our August commentary, we outlined some basic steps to enhance Brady’s disclosure, which is the constitutional requirement that prosecutors fully disclose all evidence defense relevant.
The Brady policy recently issued by the Hennepin County Attorney’s Office fails the constitutional appeal and fails to take the necessary steps to deliver justice to the defendants in Hennepin County.
Disciplinary files do not record most police misconduct in Minneapolis
The new policy states that “it is now an expectation that law enforcement will disclose to HCAO any disciplinary information proactively and voluntarily”. (Emphasis added.)
In 2022, however, the leaders of the city and the Minneapolis Police Department doubled down on making discipline optional and keep this data from public and court view by codifying the practice of “coaching” as a non-disciplinary, “non-public” sanction for sustained violation.
The MPD he rarely issues discipline, even when internal investigations support a misconduct complaint. Derek Chauvin is the best-known example of lax disciplinary policies. He was sentenced to decades in federal prison for assaulting a 14-year-old boybut he received no discipline – not even a reprimand – for such serious misconduct.
“Disciplinary information” does not include the universe of Brady material that exists for some police officers. The policy should include any sustained violation as Brady material, even if the penalty imposed is not defined as discipline by law enforcement agencies. This is a major loophole in the new HCAO Brady policy. To fulfill its constitutional obligation, HCAO must meet proactively everything evidence of police misconduct.
The subpoena is too late to search Brady’s material
HCAO does not begin searching for Brady’s material until an agent is “subpoenaed to testify in court.” This is too little, too late. Most criminal matters are resolved by plea bargain before witnesses are called to testify. By waiting until an officer is subpoenaed, this means that most criminal defendants will decide to waive their procedural rights and enter a guilty plea before examining crucial evidence in their cases.
Minnesota Department of Human Rights detects another problem with this timing:.
“In preparation for criminal trials, prosecutors also sometimes choose to simply remove a police officer from a witness list instead of producing impeachment evidence relating to that officer. This means that even if a case proceeds to trial, an individual accused of a crime may be denied impeachment evidence on an officer who played a role in their arrest because a prosecutor simply removed that officer from the list of impeachments. witnesses.
HCAO can remedy this problem by establishing an ongoing process for the collection, review and dissemination of data on police misconduct. This could be creating and maintaining a “Brady list”: an internal database, an Excel spreadsheet, or even a manila folder with yellowing newspaper clippings. Whatever the receptacle, HCAO must keep information on police misconduct up-to-date and easily accessible to personnel.
So, prosecutors must delve into those files at the start of every criminal case. They should review the Brady material when making prosecution decisions or, at the latest, when preparing the discovery for the Preliminary Omnibus Hearing. This is consistent with the Minnesota Rule 11 of Criminal Procedurewhich requires discovery to be completed before the omnibus hearing.
No looking back
Minnesota Department of Human Rights to found that Minneapolis’ procedures for collecting Brady data and providing it to HCAO were “woefully lacking” prior to 2017. Even when Minneapolis implemented a new internal process in 2017, there were still large gaps in obtaining and disseminating Brady data . “It is of particular concern that the Municipality [of Minneapolis] failed to deliver [Hennepin] County prosecutors with all up-to-date impeachment information on MPD officers from early 2020 through at least the fall of 2021.
Despite these damaging findings, the new HCAO Brady policy does not mention any type of retrospective review or sentencing.
Now that we know prosecutors didn’t have Brady data from 2020 until at least 2021, and that the Brady data was incomplete years earlier, any criminal convictions from Minneapolis and Hennepin County are suspect. Brady’s systematic violations over the past decade undermine public trust in all convictions, even those that followed the letter of the law. This requires a comprehensive review of criminal convictions in Hennepin County.
Rule 9 does not govern a prosecutor’s Brady obligation
There is a certain line of reasoning surrounding the Hennepin County Courthouse that Brady is not needed because Rule of criminal procedure 9 should take care of all discovery problems. This is wrong.
Rule 9 pertains only to materials “in the possession or control of the prosecutor”. In contrast, the US Supreme Court in particular mandate that prosecutors have a affirmative duty to go out and get Brady’s material – even if another agency is holding him. If a prosecutor follows Rule 9 but not Brady, he will be violating the Constitution e special ethical rules for prosecutors.
In this way, Rule 9 incentivizes law enforcement to withhold data. If they don’t turn it over to the prosecutor, then the prosecutor won’t turn it over to the defense. Brady, on the other hand, ensures police transparency and accountability by enforcing data disclosure.
A recent e-mailed notice in a criminal case in August from the Hennepin County Attorney’s Office alerted the court and defense attorney to the existence of “nonpublic data” relating to an MPD official. The “notice” also stated that HCAO “does not own the data and, because it is not public, has not reviewed it to determine its relevance.” Despite the language stating that “this email is intended to serve as an alert of our awareness of the existence of non-public data,” it is abundantly clear that a claim of ignorance falls short of Brady’s requirements.
Cooperation with the police is essential
The new policy places emphasis on the prosecutor’s role in alerting HCAO supervisors to potential police misconduct. The creation of an accurate and up-to-date Brady list, however, depends heavily on a transparent police disciplinary system and the sharing of both public and non-public Brady material by the MPD and other agencies. New MPD chief Ryan O’Hara’s public comments promising more transparency are a sign of hope.
What a good Brady policy looks like
Brady’s policies are the backbone of fair and just prosecutions. The essential elements are these.
- Investigation, review and ongoing disclosure of Brady data.
- Centralized database to store confirmed and prospective Brady data.
- All evidence of police misconduct, regardless of disciplinary status, included.
- Brady database that is easy to access and search by authorized personnel.
- Prosecutors consult the Brady database when making charging decisions and during litigation.
- Brady Data Disclosed by Rule 11 Omnibus Hearing or prosecutor requests prosecution.
- Brady data disclosed for all officers involved in the case, regardless of who may testify.
- Retrospective process and sentencing review whenever a Brady violation is discovered.
A version of this comment first appeared in Minnesota Lawyer.