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Anyone who regularly watches crime shows or occasionally studies constitutional history is aware of the landmark decisions of the Warren Court in Gideon v. Wainwright and Miranda v. Arizona, guaranteeing each defendant the right to counsel and the right to be informed of constitutional rights upon arrest.
Without Brady v. Maryland, however, these cases are like a two-legged stool – defendants’ due process rights do not survive without full disclosure of all evidence relevant to their defense.
One of us is a former public defender and the other is a former prosecutor. There is no doubt that if we came face to face in a major case, we would be fearless defenders of our position. Above all, we would share the obligation and the commitment to ensure that the accused receives a fair trial.
This same level of commitment is not expected of lawyers in a civil case. Countless hearings are held in civil cases to determine the extent of discovery. Lawyers are required to formally request documents and serve examinations on the opposing party. Absent a discovery request or court order, there is no legal obligation for an opposing party to provide information to the “other party” detrimental to its case.
Remarkably, the same hide-and-seek rules applied to criminal cases before the Brady ruling in 1966. Brady’s facts were so egregious that it’s hard to believe that the prosecutor’s failure to release the confession of the co-accused to the defense was not even the case. main issue in the appeal. Judge William Douglas famously added a phrase at the end of the opinion: “We now find that the suppression by the prosecution of evidence favorable to an accused on request violates due process when the evidence is material either to guilt, either for the penalty, regardless of the good or bad faith of the Crown”.
In a sentence that speaks to the current need to build trust in the criminal justice system, he added: “Society wins not only when the guilty are convicted, but when criminal trials are fair; our system of administration of justice suffers when an accused is treated unfairly.
For any prosecutor reading this article, particular attention should be paid to Kyles v. Whitley, who made it clear that a prosecutor has an affirmative duty to disclose evidence to the defense even in the absence of a specific request.
Going further, the Court also said that a prosecutor “has a duty to hear any favorable evidence known to other persons acting on behalf of the government in the case, including the police.” The Court went on to state that “unless, indeed, the system of adversarial prosecution descends to a gladiator level unmitigated by any duty to prosecute for truth’s sake, the government simply cannot avoid responsibility” and that otherwise confidence in the outcome would be destroyed.
Any good attorney knows the standards set by the American Bar Association and the Minnesota Rules of Professional Conduct—Special Duties of Attorneys. These rules specify that the prosecutor is not only “a zealous advocate”, but also an “officer of justice” and “an administrator of justice”.
These special duties command the prosecutor to “seek to protect the innocent and convict the guilty, to take into account the interests of victims and witnesses, and to respect the constitutional and legal rights of all persons, including suspects and accused”.
Our hope is that a commitment to the fairness and integrity of the criminal justice system will be enough on its own, but if not, prosecutors should be aware that Brady’s violations can have serious ramifications. . The former Carleton County prosecutor was recently disbarred due to systemic violations by Brady that resulted in “conduct prejudicial to the administration of justice.”
In 2020, the two authors found that Minneapolis officials were using “coaching” as a response to confirmed acts of police misconduct, rather than formal discipline. The Minnesota Government Data Practices Act (“MGDPA”) states that data on police misconduct is not public unless there is discipline, and therefore a critical mass of information about police misconduct has been concealed. As chairman of the Police Conduct Oversight Commission, Cerra raised these issues and obtained information confirming these concerns.
As a former board member of the Minnesota Committee on Government Information, Paul Ostrow worked with a litigation team, which ultimately led to the opening of MNCOGI v. City of Minneapolis, et.al. (The
ACLU represents MNCOGI and the case is under discovery).
Most disturbing was the information that, contrary to representations from city staff, coaching is used for all levels and types of misconduct, including excessive force, misrepresentation and inaccurate information in reports of police.
Data requests show that many complaints are listed as “closed without discipline”, which is the designation used for persistent violations when the only sanction is training. The “Discipline Schedule” in the MPD Policy and Procedures Manual expressly makes coaching an option for all levels of conduct, even levels of conduct that would warrant dismissal.
A new discipline matrix effective June 1, 2022 states that “non-disciplinary corrective action and coaching” should be used in “limited circumstances”, but continues to give primary discretion on when coaching can be used .
Currently, the Hennepin County District Attorney’s Office only reviews internal case disciplinary proceedings when “discipline” has been imposed. The city’s own data shows that coaching is the result of 90% of sustained complaints. In other words, for Brady’s purposes, 90% of the violations suffered are not disclosed to the court or to the defendants. The Minnesota Department of Human Rights recently concluded that “the city consistently fails to provide those charged with crimes with Brady data.”
The report added that the city’s Brady protocols “were sorely lacking prior to 2017, and the issues persist today”. [Brady data to discipline only, not coaching]means that neither prosecutors nor public defenders have the information they need to properly prosecute or defend a case.
The lack of transparency and lack of police discipline in Minneapolis has had tragic consequences. Numerous complaints against Derek Chauvin before the murder of George Floyd have been “closed without discipline”. In pretrial litigation, the Attorney General filed a Spreigl motion revealing to the public for the first time that Chauvin had committed numerous acts of excessive force that were never punished. Incredibly, one of the unruly acts was Chauvin’s violent assault on a fourteen-year-old boy. Chauvin was later sentenced to decades in federal prison for the assault, although he was not reprimanded by the MPD. Chauvin was a witness in dozens of criminal cases after this egregious assault, but his Brady data was not released in any of those cases.
Of course, it’s not just the court, prosecutors and defense attorneys who need access to police misconduct records, it’s also the public who has the right to be informed. Chauvin’s misconduct escalated in the years leading up to his murder. If his misconduct, i.e. his Brady data, had not been kept secret, public outcry would have compelled the MPD to act. George Floyd would be alive today.
Brady’s violations are rarely challenged. Most cases are resolved before trial. Defense attorneys don’t know what they don’t know, and certainly have a hard time proving they don’t have something the state can pretend doesn’t even exist. Following the acquittal in the Jaleel Stallings case, the defense attorney said he was not given any material information about Brady. These issues will never be the subject of litigation. It challenges every criminal conviction in Hennepin County, while continuing to cover up police wrongdoing.
We believe that as constitutional and ethical imperatives, several concrete steps should be taken.
First, elected officials in Minneapolis should address these issues. They should invest in a Brady database to address the concerns raised in the MDHR report. The authors wrote a letter requesting such action to the city council several months ago supporting the creation of such a database. The authors also called on the city council and mayor to include language in recent labor negotiations with the Minneapolis Police Federation that any sustained violation is a public record and constitutes discipline. (To be clear, we believe the MGDPA requirements control, and that while “coaching” records are not public data, the Brady requirements require disclosure in criminal cases).
Second, Minnesota should join most states that conform criminal procedure rules to Brady’s requirements. Currently, Rule 9 only expressly requires disclosure “upon request” and only of evidence “in the possession or control of the prosecutor”. The rule should be amended to create a positive, no-demand obligation to obtain and disclose evidence favorable to the defense of all parties involved in the prosecution, including the police.
Third, judges should take a more active role in confirming at the omnibus hearing that any findings have been disclosed, including any Brady material or relevant information about police misconduct. This policy would ensure compliance with Rule 11 which provides for “full discovery procedures to the extent practicable by the omnibus hearing”.
Tighter compliance with Brady is good for good cops. We believe that most police officers want more transparency. It is important to note that these “coaching” policies were decisions of police supervisors and administrators – not the rank and file police. In addition, “coaching” and lack of discipline have been used to cover up the internal faults of some officers against their own colleagues. By failing to disclose information about police misconduct to the public or to the courts in criminal proceedings, MPD has unfairly placed all officers under a cloud of suspicion. This cloud must be lifted.
We strongly believe that as lawyers, it is our calling to strengthen our institutions by increasing transparency and trust. Ensuring due process through comprehensive Brady reform in Minneapolis and throughout Hennepin County is a noble effort that we must all join in.
This commentary has been reprinted with permission from Minnesota Lawyer.