By Randy Mize and Mara W. Elliott
More than 50 years ago, the U.S. Supreme Court created the “Brady doctrine,” establishing criminal defendants’ right to see all of the evidence in law enforcement’s possession that could be used to exonerate them at trial.
This doctrine is so ingrained in our legal system that few people can imagine an America before Brady v. Maryland, when police departments and prosecutors could withhold exculpatory information from a defendant and his attorney.
Today most prosecuting agencies even keep lists — known as “Brady lists” — of police officers with incidents of misconduct, including dishonesty or bias, in their past. Those lists help prosecutors quickly locate information about police officer misconduct that must be disclosed whenever one of those officers was involved in the arrest or investigation of a defendant.
Brady lists are a powerful tool for protecting the rights of people accused of crimes. Thousands of agencies keep them. Brady disclosures often lead to cases being dismissed and defendants being exonerated. That’s justice in action.
Yet in the current political climate, when lies are so often told with impunity, there is now a campaign in San Diego to discredit agencies for keeping Brady lists. Those leading the campaign feign outrage that there are “secret lists” of bad cops, and misinform a public anxious for criminal justice reform about the true reasons behind this doctrine. They never use the term “Brady,” of course, for fear that people will research the term and discover its genesis.
This is unfortunate. At a time when honest information about the criminal justice system has never been more needed, this shameless distortion of reality is distracting our community from the real campaign for criminal justice reform.
We hope this commentary helps people understand the truth.
One of its authors is the San Diego County Public Defender, whose office represents San Diegans when they are accused of a crime and cannot afford an attorney. These public defenders handle as many as 60,000 cases each year and they frequently use Brady information to successfully defend their clients.
The other author is the City Attorney of San Diego, whose office gathers Brady information and discloses it to defense attorneys, including the Public Defender. The City Attorney’s Office reviews all Brady information before determining whether a case should be filed. Cases based on unreliable witnesses or information are routinely dismissed.
Our offices cooperate closely on Brady disclosures as well as on restorative-justice programs designed to keep people out of the criminal justice system and give them fresh starts without a conviction on their record.
Brady disclosures of police officer misconduct can range from misdemeanors like off-duty drunk driving to serious felonies like tampering with evidence. The misconduct need not have occurred during the arrest or investigation of the defendant to be germane. It can be used, for example, to impeach the credibility of a police officer caught lying in a previous case.
Under state law in California, which is highly protective of law enforcement personnel information, a citizen is not allowed access to a police officer’s personnel files under most circumstances. But under the Brady doctrine, that information can be disclosed for the purpose of ensuring a fair and honest trial.
The City Attorney’s Office takes seriously its obligations under Brady, as does the Public Defender’s Office. Both offices train their attorneys on Brady disclosures to ensure that every citizen’s rights are fully protected.
It is unfortunate this disinformation campaign has reached so many people who are fighting for fairness and equality. We hope this sideshow ends soon, so our city can move forward with the hard work of meaningful and permanent criminal justice reforms.
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