Top Court In Massachusetts Says Prosecutors Must Provide Info On Bad Cops To Criminal Defendants

from the finally,-an-obligation-that's-actually-an-obligation dept

Cops lie. Cops lie enough there's a term for it: testilying. Honest prosecutors don't want lying cops on the stand dirtying up their case with their impeachable testimony. Unfortunately, police unions are powerful enough to thwart this small bit of accountability. "Brady lists" are compiled by prosecutors. They contain the names of officers whose track record for telling the truth is so terrible prosecutors don't want to have to rely on their... shall we say... misstatements in court.

Unfortunately, these lists are often closely-guarded secrets. Judges aren't made aware of officers' penchant for lying. Neither are defendants in many cases. But they're called "Brady" lists because they're supposed to be disclosed to defendants. The "Brady" refers to Brady v. Maryland, where it was decided prosecutors are obligated to turn over possibly exculpatory information to defendants to ensure their right to a fair trial. This includes anything that might indicate the cop offering testimony might not be telling the truth.

The Massachusetts Supreme Judicial Court has ruled [PDF] prosecutors have an obligation to inform defendants of officers who have made their "Brady" lists. Two cops who made false statements in a use-of-force report were granted immunity for their testimony in front of a grand jury. The district attorney prosecuting a different criminal case handed this information over to the defendant. The cops challenged this move, claiming their grand jury immunity should have prevented this exculpatory information from being given to the defendant and discussed in open court. (h/t Matthew Segal)

The cops argued there's no constitutional duty to disclose this information (under the US Constitution or the Commonwealth's) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed. The Supreme Judicial Court says that argument is wrong under both Constitutions.

First, prosecutors have more than a constitutional duty to disclose exculpatory information; they also have a broad duty under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose "[a]ny facts of an exculpatory nature." This duty is not limited to information so important that its disclosure would create a reasonable doubt that otherwise would not exist; it includes all information that would "tend to" indicate that the defendant might not be guilty or "tend to" show that a lesser conviction or sentence would be appropriate.

[...]

Second, even if prosecutors had only their constitutional obligation to disclose, and not the broad duty under our rules, we would not want prosecutors to withhold exculpatory information if they thought they could do so without crossing the line into a violation of the defendant's right to a fair trial.

The acceptable standard under the Constitution is not "see what you can get away with." This is an obligation, not a nicety to be deployed at the prosecutor's discretion.

A prosecutor should not attempt to determine how much exculpatory information can be withheld without violating a defendant's right to a fair trial. Rather, once the information is determined to be exculpatory, it should be disclosed -- period. And where a prosecutor is uncertain whether information is exculpatory, the prosecutor should err on the side of caution and disclose it.

In this case, the information was definitely of the possibly exculpatory variety. Lying cops who've admitted before a grand jury they falsified reports should definitely be considered impeachable witnesses. Whether or not the information is determined admissible at trial is beside the point.

[T]he ultimate admissibility of the information is not determinative of the prosecutor's Brady obligation to disclose it. Where the information, as here, demonstrates that a potential police witness lied to conceal a fellow officer's unlawful use of excessive force or lied about a defendant's conduct and thereby allowed a false or inflated criminal charge to be prosecuted, disclosing such information may cause defense counsel, or his or her investigator, to probe more deeply into the prior statements and conduct of the officer to determine whether the officer might again have lied to conceal the misconduct of a fellow police officer or to fabricate or exaggerate the criminal conduct of the accused.

The cops also argued their immunity from prosecution during their grand jury testimony should shield them from any adverse consequences. Wrong again, says the court. The immunity only covers prosecution for the admitted crimes. It is not a shield against reputational damage that may result from this information being made public or handed over to defendants.

An immunized witness, like others who are not immunized, may prefer that the testimony not be disseminated by the prosecutor, especially if it would reveal the witness's dirty deeds, but that preference does not affect whether the information is exculpatory or whether it should be furnished to other defendants. Once disclosed, the immunized testimony may be used to impeach the immunized witness, provided that the testimony is not being used against the witness in a criminal or civil prosecution other than for perjury. In sum, a prosecutor's obligation to disclose exculpatory information is the same for immunized testimony as for all other testimony. There is no higher Brady standard applied for a prosecutor to disclose immunized testimony.

The Court wraps this up by laying down the law: this is Brady info and it needs to be disclosed to defendants. The SJC is not fucking around.

[W]e conclude, as did the district attorney, that the prosecutors here have a Brady obligation to disclose the exculpatory information at issue to unrelated criminal defendants in cases where a petitioner is a potential witness or prepared a report in the criminal investigation. That obligation remains even though that information was obtained in grand jury testimony compelled by an immunity order. And the district attorney may fulfill that obligation without prior judicial approval; a judge's order is needed only for issuance of a protective order limiting the dissemination of grand jury information.

More broadly, we conclude that where a prosecutor determines from information in his or her possession that a police officer lied to conceal the unlawful use of excessive force, whether by him or herself or another officer, or lied about a defendant's conduct and thereby allowed a false or inflated criminal charge to be prosecuted, the prosecutor's obligation to disclose exculpatory information requires that the information be disclosed to defense counsel in any criminal case where the officer is a potential witness or prepared a report in the criminal investigation.

That's the standard in Massachusetts. And bad cops are on notice there's pretty much nothing they can do to escape the consequences of their own actions. This is as it should be. Now, if the courts could just make sure prosecutors and police departments are actually compiling Brady lists, we'd be set. At least in this Commonwealth.

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Filed Under: brady lists, defendants, lying, massachusetts, police, prosecutors


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  • icon
    That One Guy (profile), 17 Sep 2020 @ 4:05pm

    Even if they were right, they'd still be wrong

    The cops argued there's no constitutional duty to disclose this information (under the US Constitution or the Commonwealth's) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed.

    I'm not sure about other people but being informed that a given witness is a known liar would very much 'create reasonable doubt where none previously existed', and I would hope that would hold for others as well.

    'You cannot trust anything this person says' is a very important bit of information for a court case for all involved, and it's absolutely nuts that it took a state supreme court to confirm that information like that needs to be passed on to the defense.

    Now if every other state would follow up, that'd be great.

    reply to this | link to this | view in chronology ]

    • identicon
      Kitsune106, 17 Sep 2020 @ 4:10pm

      Re: Even if they were right, they'd still be wrong

      IT's only when its the cops... those brave men and women who sacrifice souls for us. to save us from small drug dealers.... wait.. people who they planted drugs on.

      It's just.. frustrating, but your word is your bond is such jobs. In a job, if your word cannot be trusted, you have issues.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Sep 2020 @ 7:54am

        Re: Re: Even if they were right, they'd still be wrong

        One would hope that Brady lists would force the cops to quit, since nothing they report or testify to can be trusted, but that's probably not going to happen. I can foresee a couple of things -- Brady lists not being compiled at all, the cops on the Brady list just never filling out reports or having someone else sign their names to it -- those cops just being used for their thuggishness without even the disguise of oversight or accountability.

        Yeah, this doesn't end well if things go that direction.

        reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 17 Sep 2020 @ 4:11pm

    The cops argued there's no constitutional duty to disclose this information (under the US Constitution or the Commonwealth's) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed.

    So how is that supposed to work?
    They do a trial, and if the accused is declared guilty then the liars are to be exposed?
    Or is the prosecutor supposed to guess the outcome of the trial with and without the disclosure, and only disclose if it makes a difference?

    You can't tell me this is an actual standard.

    ... (Reading the decision of the Court)

    Glad to know it actually is not.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 18 Sep 2020 @ 7:33am

      Re:

      Well, obviously they at least believe the outcome of the trial is predetermined. How else would they be able to know if any given piece of evidence will alter the outcome?

      reply to this | link to this | view in chronology ]

  • icon
    Ashigaru Spearman (profile), 17 Sep 2020 @ 4:28pm

    I dont see why this is even controversial

    I bet if more of these judges or their families were victims of this testi-lying, there'd be a prompt response in ensuring it stops.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Sep 2020 @ 4:38pm

    National Brady List

    I for one would welcome a National Brady list that allowed anyone being prosecuted to be free to search. If one or more of the officers involved in your case are on the list, it makes your job that much easier. It should in fact, make those people unemployable since none of their words or actions can be trusted or relied on in a court of law.

    reply to this | link to this | view in chronology ]

  • identicon
    Hieronymous Cowherd, 17 Sep 2020 @ 4:45pm

    The Brady List

    This Grand Jury
    Heard some cops who're shady
    As they testilied about exculpatories
    But the Massachusetts Court
    Wasn't impressed
    So it's going to revoke immunity

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 17 Sep 2020 @ 4:55pm

    Grand Jury approving lies

    I am wondering, after hearing that the cops were being given immunity for lying in the case they were hearing, how they justified actually rendering a true bill indicting the suspects? If there was enough 'other' evidence, then why did the prosecutor feel the need for the cops to testify at all?

    There seems to be a lot about this case that stinks, especially about the prosecutors behavior. Then there's the cops.

    reply to this | link to this | view in chronology ]

    • icon
      zyffyr (profile), 17 Sep 2020 @ 6:26pm

      Re: Grand Jury approving lies

      Two different cases. Go back and reread the story.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 17 Sep 2020 @ 6:33pm

        Re: Re: Grand Jury approving lies

        Doesn't matter. Cops got immunity and in front of a Grand Jury. Why would a DA present testimony to a Grand Jury that needed for the testifiers to have immunity for lying? I did not mention the Brady aspect.

        reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 17 Sep 2020 @ 8:37pm

    How will this help?

    If the police don't obey laws, why will they obey rulings or court orders?

    And why aren't Brady lists public?

    Isn't lying in court perjury? Isn't there jail time?

    If one law enforcement officer likes with impunity, it compromises the integrity of the entire court system, and de-legitimizes its authority. That means the justice system doesn't operate under consent of the people but because the police have guns and will shoot civilians.

    But it's not one officer, it's a Brady list.

    Again, we need to abolish the entire justice system. Law Enforcement, the prosecutors, the courts, the prisons. The whole thing. We won't get a fair system until we do.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 18 Sep 2020 @ 7:34am

      Re: How will this help?

      Yes, there is supposedly jail time for perjury. But most judges are so deferential to police, that they never order a perjury arrest. Those arrests are limited to peasants, not nobles.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 18 Sep 2020 @ 5:03pm

      Our systemically corrupt justice system

      And Justice Ginsberg just passed on from pancreatic cancer complications.

      It's entirely on brand for Trump and McConnell to try to get another Federalist Society shill (or one of Trump's selects, Senators Cruz or Cotton and hammer him onto the bench during a lame duck session (assuming he loses or the results are thoroughly obfuscated).

      I am beside myself. I'm not sure if it's better or worse if this sparks a flash.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 19 Sep 2020 @ 6:47pm

        Re: Our systemically corrupt justice system

        No worries, I distinctly remember a justice needing to be replaced at the end of Obama's second term only to have that held up until after the election because 'the people should decide', I'm sure the same people who stole- I mean delayed replacing a US supreme court seat back then will do the same thing this time as well, given they are most certainly not openly corrupt lying hypocrites.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 21 Sep 2020 @ 2:48am

        Re: Our systemically corrupt justice system

        "I am beside myself. I'm not sure if it's better or worse if this sparks a flash."

        With a possible 6-3 advantage to new-fangled alt-right republicans on SCOTUS I'm sure there'll be no shortage of sparks over the next twenty years or so.

        I can just imagine the current generation, many years down the row, having to tell disbelieving young people that "Once upon a time, america didn't actually suck".

        reply to this | link to this | view in chronology ]

  • identicon
    dadtaxi, 18 Sep 2020 @ 3:11am

    Officer of the court

    It makes me wonder what information the DA had outside of the specific testimony given within the Grand Jury. Outside of this ruling, why wasn't even just that Brady disclosed anyway?

    It seems to me that prosecutors have forgotten that their first obligation is as an officer of the court.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2020 @ 2:53am

    Silly me.

    ".........there's a term for it: testilying."

    And there was me thinking there is already a word for that. Purgery.

    Is testilying the new term for purgery that you don't get convicted for?

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 21 Sep 2020 @ 12:58am

      Re: Silly me.

      "Is testilying the new term for purgery that you don't get convicted for?"

      Not sure what "purgery" is, but it certainly resembles a more convenient way of enacting "perjury".

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2020 @ 3:06am

    Reasons not to disclose

    1. Cops don't lie.
    2. Well yes they do lie but not in police reports.
    3. Well yes they do lie in police reports, but not in court.
    4. Well yes they do lie in court, but absolute definitely didn't this time.....trust me I know this because I have absolutely no interest other than ensuring a fair trial. Honest.

    reply to this | link to this | view in chronology ]


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