How Brady Policies Can Build Transparency and Trust and Support Good Policing
By Abigail Cerra and Paul Ostrow
Anyone who watches crime shows regularly or is an occasional student of constitutional history is aware of the Warren Court’s landmark decisions in Gideon v. Wainwright and Miranda v. Arizona guaranteeing every accused the right to counsel and the right to be advised of constitutional rights at the time of arrest. Without Brady v. Maryland, however, these cases are like a stool with two legs—the rights of defendants to procedural due process don’t survive without full disclosure of all evidence relevant to their defense.
One of us is a former public defender and the other is a veteran prosecutor. No doubt if we were across the counsel table from each other in a major case we would be fearless advocates for our position. Importantly, however, we would share the obligation and the commitment to make sure the defendant received a fair trial.
This same level of commitment is not expected of attorneys in a civil case. Countless hearings are held in civil cases to determine the scope of discovery. Attorneys are expected to formally request documents and to serve interrogatories on the opposing party. Absent a request for discovery or a court order there is no legal requirement that an opposing party provide information to the “other side” harmful to its case.
Remarkably, the same rules of hide and seek applied to criminal cases before the Brady ruling in 1966. The facts of Brady were so egregious it is hard to believe that the prosecutor’s failure to disclose the co-defendant’s confession to the defense was not even the primary issue in the appeal. Justice Douglas famously added one sentence at the conclusion of the opinion: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 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 the administration of justice suffers when any accused is treated unfairly.”
For any prosecutors reading this article, special attention should be paid to Kyles v. Whitley, which made it clear that a prosecutor has an affirmative duty to disclose evidence to the defense even absent a specific request. To take it one step further, the Court also stated that a prosecutor “has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” The Court went on to state that “unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility” and that otherwise confidence in the result would be destroyed.
Any good prosecutor is aware of the standards set by the American Bar Association and the Minnesota Rules of Professional Conduct—Special Duties of Prosecutors. Those rules make clear that the prosecutor is not only “a zealous advocate” but also an “officer of the court” and “an administrator of justice.” Those special duties command the prosecutor to “seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.” Our hope is that commitment to fairness and integrity in the criminal justice system will alone suffice, but, if not, prosecutors should be aware that Brady violations can have serious ramifications. The former Carleton County Attorney was recently disbarred because of systemic Brady violations that resulted “in conduct that is prejudicial to the administration of justice.”
The Minnesota Government Data Practices Act (MGDPA) dictates that police misconduct data is not public unless there is discipline, and so a critical mass of police misconduct information was concealed.
In 2020, we both discovered that City officials use “coaching” as a response to confirmed acts of police misconduct, rather than formal discipline. The Minnesota Government Data Practices Act (MGDPA) dictates that police misconduct data is not public unless there is discipline, and so a critical mass of police misconduct information was concealed. As chair of the Police Conduct Oversight Commission, Abigail Cerra raised these issues and obtained information confirming these concerns. As a former board member of the Minnesota Committee on Government Information (MCCOGI), Paul Ostrow worked with a litigation team ultimately resulting in the commencement of MNCOGI v. City of Minneapolis, et.al. (The ACLU is representing MNCOGI and the matter is in discovery).
Most troubling was information that, contrary to representations of city staff, coaching is being used for all levels and types of misconduct, including excessive force, false statements, and inaccurate information in police reports. Data requests show many complaints are listed as “closed no discipline” which is the designation used for sustained violations when the only sanction is coaching. The “Schedule of Discipline” in the MPD Policy and Procedures Manual expressly makes coaching an option for all levels of conduct, even those levels of conduct that would support termination. A new discipline matrix effective June 1, 2022, does state that “non-disciplinary corrective action and coaching” are to be used in “limited circumstances” but continues to give the chief discretion on when coaching may be used.
Currently the Hennepin County Attorney’s Office reviews internal affairs disciplinary procedures only when “discipline” has been imposed. The city’s own data shows that coaching is the result in 90% of sustained complaints. In other words, for the purposes of Brady, 90% of sustained violations are not being disclosed to the court or to defendants. The Minnesota Department of Human Rights recently concluded that “the city systematically fails to provide individuals accused of crimes with Brady data.” The report added that the city’s Brady protocols were “woefully lacking before 2017” and that “the problems persist today.” The report concludes that “public defenders and county prosecutors stressed that inappropriately narrowing [Brady data to discipline only, not coaching], means that neither the 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.
The lack of transparency and lack of police discipline in Minneapolis has had tragic consequences. Numerous complaints against Derek Chauvin prior to the murder of George Floyd were “closed no discipline.” In pretrial litigation, the Minnesota 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 disciplined. Incredibly, one of un-disciplined acts was Chauvin’s violent assault of a 14-year-old boy. Chauvin was later sentenced to decades in federal prison for that assault even though he did not get so much as a reprimand from the MPD. Chauvin was a witness in dozens of criminal cases after that egregious assault, but his Brady data was not disclosed in any of those cases.
Of course, it is not only the court, prosecutors, and defense attorneys that need to have access to records of police misconduct, it is also the public that has a right to the information. Chauvin’s misconduct was ramping up in the years before he committed murder. If his misconduct, i.e. his Brady data, had not been kept secret, public outcry if nothing else would have required the MPD to act. George Floyd would be alive today.
Brady violations rarely are litigated. Most cases are resolved short of trial. Defense attorneys don’t know what they don’t know, and certainly have a hard time proving that they don’t have something the State may claim doesn’t even exist. Following the acquittal in the case of Jaleel Stallings, defense counsel has stated that he was not given significant Brady material. Those issues will never be litigated. This calls into question every criminal conviction in Hennepin County, as well as continuing to cover up police misconduct.
We believe that as constitutional and ethical imperatives several concrete actions should be taken.
First, Minneapolis elected officials should address these issues. They should invest in a Brady database to address the concerns raised in the report from the Minnesota Department of Human Rights. The authors wrote a letter requesting such an action to the Minneapolis City Council several months ago supporting the creation of such a data base. The authors also appealed to the city council and mayor to include language in the recent labor negotiation with the Minneapolis Police Federation making clear that any sustained violation is a public record and constitutes discipline. (To be clear we believe that the requirements of the MGDPA control and that even if “coaching” records are not public data, the requirements of Brady require disclosure in criminal cases.)
Second, Minnesota should join with most states that conform the Rules of Criminal Procedure to the requirements of Brady. Currently Rule 9 only expressly requires disclosures “upon request” and only evidence “within the prosecutor’s possession or control”. The rule should be changed to create an affirmative duty, without a request, to obtain and disclose evidence favorable to the defense from all parties involved in the prosecution—including police.
Third, judges should take a more active role by confirming at the omnibus hearing that all discovery has been disclosed including any Brady material or relevant information of police misconduct. This policy would ensure conformity with Rule 11, which provides for “complete discovery procedures so far as possible by the Omnibus Hearing.”
Stricter compliance with Brady is good for good cops. We believe most police officers want more transparency.
Stricter compliance with Brady is good for good cops. We believe most police officers want more transparency. It is important to note that these “coaching” policies were decisions of police supervisors and administrators—not rank and file police. Furthermore, “coaching” and lack of discipline have been used to hide internal misconduct 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. That cloud must be lifted.
We strongly believe that as attorneys we have a calling to strengthen our institutions by increasing transparency and trust. Ensuring procedural due process through comprehensive Brady reform in Minneapolis and throughout Hennepin County is a noble effort we must all join.
Abigail Cerra
Abigail Cerra was awarded 2021 Minnesota Attorney of the Year, Outstanding Service to the Profession, for her work on the Minneapolis Police Conduct Oversight Commission. She has been quoted in media outlets ranging from the BBC and TIME Magazine to the Minnesota Reformer and neighborhood newspapers. She has served as a Hennepin County Public Defender and Chair of the Police Conduct Oversight Commission. Abigail is currently senior counsel and enterprise pro bono coordinator for Wells Fargo. She also writes articles, participates on panels, and presents CLEs regarding criminal law and public safety.
Paul Ostrow
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Paul Ostrow has over 25 years of experience as a criminal prosecutor and currently serves as an Assistant Anoka County Attorney. Paul works closely with the Anoka Hennepin Violent Crime Enforcement Task Force. Paul served three terms on the Minneapolis City Council representing northeast Minneapolis. During his service on the Council he served as City Council President and Ways and Means/Budget Chair. Paul has also served as chair and board member of the Civic Caucus, Minnesota Committee on Government Information and No Labels Minnesota.