Officer scores victory for Brady List due process – other states and prosecutors should follow suit

In April 2019, Officer Travis Hamilton responded to a knock on his front door in Iowa. It was a reporter asking him if he was part of the county attorney’s office. Brady listing. Thus began a more than three-year quest to clear his name and ensure that other officers did not experience the same nightmare as him.

Brady lists stem from U.S. Supreme Court cases that say prosecutors must disclose any exculpatory evidence to the defense — including evidence that could be used to impeach a prosecution witness. Impeachment evidence may include dishonesty, bias or other misconduct relevant to the facts of the case. To meet their Brady obligations, prosecuting agencies began keeping lists of officers for whom there was such evidence.

Agent Hamilton didn’t even know such a list existed. When he contacted the county attorney’s office, he was told there was no protocol for being listed and no way to appeal. He made a public records request and received a list with the names of 11 officers, including his own, but no explanation of why he was on the list. He requested a meeting to discuss the issue and received no response.

Being Listed Brady can end your career. A prosecutor’s office may order a police department not to forward any case with a Listed Brady officer as a witness. The police department can then fire the officer for not being able to perform an essential task – testifying.

That’s what happened to Hamilton. He was asked to resign and, with almost 20 years of experience, he has not been able to get a job in the police since. One boss said he was the most qualified candidate, but would not be hired because of the Brady SEO.

Hamilton got a security job that paid more and was less stressful, but he wanted to clear his name. He could not. There was absolutely no due process at the end of his career – no notice, no hearing, no opportunity to confront allegations. Travis Hamilton decided to change that. He didn’t want another officer to suffer what he had.

Agent Hamilton contacted me a few months before I first wrote about him. He has since reached out to people across the country to share his story and find out how Brady lists were processed in other states. Committed to advancing legislation that would provide officers with due process, he reached out to Senators and House Representatives, met with them, and shared his story and the information he had gathered. In June 2022, the Governor of Iowa signed into law a law establishing the procedural requirements for placing an officer on a Brady listing.

Officer Hamilton said,

It is gratifying to see some of the information I provided included in the Brady bill and I look forward to receiving my formal notification explaining why I have been listed and submitting my appeal. I am very grateful for the hard work of the Iowa House and Senate to pass this important bill.

LAW GIVES OFFICERS DUE PROCEDURE

The Iowa Laws prohibits an agency from threatening, sanctioning, or firing an officer solely because a prosecuting agency decides there is evidence of impeachment regarding the officer. It also requires that any prosecuting agency that maintains a Brady list to have policies that include, at a minimum:

1. The criteria used to place the officer’s name on the list.
2. The agent’s right to written notice and to provide comments before the Crown decides whether or not to list the agent’s name. The notice must also inform the officer of his right to request documents, records and other evidence in the possession of the Crown that are relevant to whether or not his name is listed.
3. The obligation of the public prosecutor to inform the officer of his decision.
4. The officer’s right to request a reconsideration and present evidence in support of the request.
5. Deadlines and methods of notification to the officer of the final decision of the public prosecutor’s office.

Officers whose names have been inscribed on a Brady listed before the legislation must be notified within 90 days of the effective date of the law and have the same process to request a review as agents listed after the law is enacted.

A CALL TO PROSECUTORS

As a former state and federal prosecutor, I urge prosecuting authorities to develop clear, precise and fair procedures Brady policies without waiting for a legislative mandate.

One September 2021 »Guide Brady Giglio for Prosecutors” generated by the American College of Trial Lawyers provides several resources to guide policy development. However, the guide itself only deals with the prosecution’s obligations to the defence. Although the guide recognizes Brady registration of an officer may end his career, it makes no mention of due process for officers.

The State of Washington adopted legislation in July 2022, requiring prosecutors to develop protocols for the type of conduct that would result in an officer being placed in a Brady list and under what circumstances officers can be removed, but did not address due process for officers.

I have already provided Maricopa County (AZ) District Attorney Brady Policies and procedures. another source for a model policy is the Los Angeles District Attorney’s Office.

One issue that I have not seen addressed in legislation or policy is the standard of proof regarding allegations that an officer is Brady listing. Michael P. Stonefounder of a police litigation firm, says it must be “clear and compelling”.

The Supreme Court has never said that the due process rights of defendants outweigh the due process rights of officers. Prosecutors should embrace and protect the rights of both. As the Supreme Court has declaredwe are, after all, “servants of the law” whose interest is “that justice be done”.

NEXT: Do Brady and Giglio trump officers’ due process rights?