By: Abigail Cerra and Paul Ostrow
In our August opinion piece, Brady is a Constitutional Imperative—here is how to fix it in Minnesota, we outlined a few basic steps to improve Brady disclosure. The Hennepin County Attorney’s Office’s new Brady policy released in mid-October does not pass constitutional muster and fails to take the steps needed to ensure justice for defendants in Hennepin County.
Disciplinary files do not capture most police misconduct in Minneapolis
The new policy states that “it is now an expectation that law enforcement agencies disclose to the HCAO any disciplinary information proactively and voluntarily” (emphasis added). City leaders and the MPD doubled-down on making discipline optional and keeping this data from the view of the public and the courts by codifying the practice of “coaching” as a non-disciplinary and “nonpublic” sanction for a sustained violation in 2022. The MPD rarely issues discipline, even when internal investigations sustain a complaint of misconduct. Derek Chauvin is the most notorious example of lax discipline policies. He was sentenced to decades in federal prison for assaulting a 14 year boy, but he did not receive any discipline—not even a reprimand—for such egregious misconduct.
“Disciplinary information” does not encompass the universe of Brady material that exists for certain police officers. The policy should include as Brady material any sustained violation even if the sanction imposed is not defined as discipline by the law enforcement agency. This is a major gap in the new HCAO Brady policy. To meet their Constitutional obligation, the HCAO must proactively gather all evidence of police misconduct.
Subpoena is too late to look for Brady material
The HCAO does not start looking for Brady material until an officer is “subpoenaed to testify in court.” This is too little, too late. Most criminal matters are resolved by plea bargain before any witnesses are called to testify. By waiting until an officer is subpoenaed, this means that most criminal defendants will decide to give up their trial rights and enter a guilty plea before examining crucial evidence in their cases.
The Minnesota Department of Human Rights notes another problem with this timing:
“Furthermore, in preparation for criminal trials, prosecutors will also sometimes choose to simply remove a police officer from a witness list instead of producing impeachment evidence related to that officer. This means that even if a case proceeds to trial, an individual accused of a crime may be denied impeachment evidence about an officer who had a role in their arrest because a prosecutor simply removed that officer from the witness list.”
The HCAO can remedy this problem by establishing a continuous process for gathering, reviewing, and disseminating police misconduct data. This could be creating and maintaining a “Brady list”, an internal database, excel spreadsheet, or even a manila folder with newspaper clippings. Whatever the receptacle, the HCAO must keep police misconduct information up to date and easily accessible for staff.
Then, prosecutors must delve into those files at the outset of each criminal case. They should review Brady material when making charging decisions, or, at the latest, when preparing discovery for the pre-trial Omnibus Hearing. This is consistent with the Minnesota Rule 11 of Criminal Procedure, which requires discovery to be completed before the Omnibus Hearing.
No look-back
The Minnesota Department of Human Rights found that Minneapolis procedures for gathering Brady data and providing it to the HCAO were “woefully lacking” before 2017. Even when Minneapolis implemented a new internal process in 2017, there were still major gaps in obtaining and disseminating Brady data. “Of particular concern is the fact that the City [of Minneapolis] failed to provide [Hennepin] County prosecutors with any updated impeachment information about MPD officers from the beginning of 2020 through at least the fall of 2021.”
Despite these damning findings, the new HCAO Brady policy does not mention any sort of look-back or conviction review.
Now that we know that prosecutors did not have any Brady data from 2020 through at least 2021, and that Brady data was incomplete years before that, any criminal convictions from Minneapolis and Hennepin County are suspect. The systemic Brady violations over the past decade undermines the public confidence of 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 around the Hennepin County Courthouse that Brady is not necessary because Criminal Procedure Rule 9 should take care of all discovery issues. That is wrong.
Rule 9 only pertains to materials “within the prosecutor’s possession or control”. In contrast, SCOTUS specifically mandated that prosecutors have an affirmative duty to go out and get Brady material—even if another agency is withholding it. If a prosecutor follows Rule 9 but not Brady, they will violate the Constitution and special ethics rules for prosecutors.
In this way, Rule 9 incentivizes law enforcement agencies to withhold data. If they do not turn it over to the prosecutor, then the prosecutor will not turn it over to the defense. Brady, on the other hand, ensures police transparency and accountability by mandating data disclosure.
A recent e-mailed notice filed in a criminal matter in in August by the Hennepin County Attorney’s Office advised the Court and defense counsel of the existence of “nonpublic data” pertaining to an MPD officer. The “notice” further stated that the HCAO “does not possess the data, and because it is nonpublic, has not reviewed it for a determination of materiality.” Despite language stating that “this email is meant to serve as notice of our awareness of the existence of the non-public data,” it is abundantly clear that a claim of ignorance does not meet the requirements of Brady.
Partnership with police leadership is critical
The new HCAO policy places an emphasis on the prosecutor’s role to alert supervisors in the County Attorney’s office of potential police misconduct. The creation of an accurate, up-to-date Brady list, however, is most dependent upon a transparent police discipline system and a sharing of both public and nonpublic Brady material by the MPD and other agencies. The public comments of the new Chief of the MPD Ryan O’Hara promising greater transparency are a hopeful sign.
What a good Brady policy looks like
Brady policies are the backbone of equitable and just prosecutions. The essential elements are these.
- Ongoing investigation, review, and disclosure of Brady data
- Centralized database to store confirmed and potential Brady data
- All evidence of police misconduct, regardless of discipline status, included
- Brady database easy to access and search by approved personnel
- Prosecutors consult Brady database when making charging decisions and throughout litigation
- Brady data disclosed by Rule 11 Omnibus Hearing or prosecutor requests continuance
- Brady data disclosed for all officers involved in the case, regardless of who may testify
- Look-back process and conviction review whenever breach of Brady is discovered
*
Editor's note: This piece was written prior to election day 2022.
By Abigail Cerra and Paul Ostrow
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 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.