Brady Violations – Why It Matters

Recently a letter was shared publicly that was written by the Dept of Justice to the Tehama County District Attorney in regards to a Brady concern.

There are many questions regarding the relevance of this letter. Right now, as we go into this election, the decision of relevance lies with the voter. That may change in January when SB2 goes into effect, but for now, it’s simply one piece of information that we need to evaluate to decide if we as individuals think it’s an issue. This post is intended to educate you on this issue and offer resources for you to do your own research and make your own decision.

What Is A Brady Violation?

A ruling by the United States Supreme Court in Brady v. Maryland (1963) and subsequent rulings (i.e. giglio) requires that organizations:

In the 1963 Brady v Maryland case, John Brady argued that information pertinent to his defense had not been disclosed by the prosecution.

Brady and another individual had been convicted of murder and sentenced to death. The other person had made a statement that it was he, not Brady, who committed the murder. The prosecution did not give that statement to the defense.

The Supreme Court held that withholding exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment.”

Exculpatory evidence is evidence that might exonerate the defendant.

Congress later passed the Freedom of Information Act [FOIA; 1967] making these Brady Disclosure(s) part of the public domain.

Read more about Brady v Maryland and other pertinaent cases: Brady material

Officer Misconduct

Per the DOJ, “It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. (18 U.S.C. §§ 241, 242). ‘Under color of law’ means that the person doing the act is using power given to him or her by a governmental agency (local, State, or Federal). … The types of law enforcement misconduct covered by these laws include excessive force, sexual assault, intentional false arrests, theft, or the intentional fabrication of evidence resulting in a loss of liberty to another.”

Dept of Justice – Addressing Police Misconduct

Office of Justice Programs – Police Officer Truthfulness

“In the performance of their duties, police officers frequently engage in a significant amount of deceptive conduct that is essential to public safety. Although lies justified by necessity, lies told in jest, and white lies may be acceptable forms of deception in law enforcement, malicious lies are the true evil of officer misconduct. Intentional deceptive conduct can include deceptive action in a formal setting, failure to bring forward information, or creation of false evidence.”

https://www.ojp.gov/ncjrs/virtual-library/abstracts/police-officer-truthfulness-and-brady-decision

What is a Brady (or Giglio) List?

When officer misconduct incidents are investigated by the DA’s office and sent to the Dept of Justice for review. Should the findings be substantiated and it is determined the individual should be not be called as a witness, the District Attorney is responsible for writing a letter stating that fact and should keep a list of anyone who has been given a letter.

It is the District Attorneys responsibility to disclose those offenses to the defense any time the individual is expected to be called as a witness. Not doing so is cause for removal of their license to practice law.

The website https://giglio-bradylist.com is a nationwide platform designed to maintain these disclosures in a comprehensive and standardized manner to help agencies manage their Giglio-Brady lists.

The Giglio-Bradylist is not an open forum where anyone can share information publicly. Informational on this site primarily comes directly from District Attorney’s offices and the Dept of Justice.

Individuals can submit concerns or complaints for review, however there must be specific documentation proving the incident is valid to be included on the list.

The following statement is taken from this website:

Senate Bill No. 2 –

In January of 2023 Senate Bill 2 will take effect. In a nutshell the purpose of this bill is to increase accountability for police officer misconduct.

Peace Officers Standards and Training (POST) has been tasked with reviewing matters of this nature and decertifying those officers which meet the requirements set forth in the bill.

Learn more about SB2: https://post.ca.gov/sb-2

The new law adds Penal Code section 13510.8, which authorizes the Commission to suspend or revoke certification of a law enforcement officer who has committed “serious misconduct.”

That section defines “serious misconduct” to include the following acts:

• 8(b)(1): dishonesty related to the reporting, investigation or prosecution of a crime
• 8(b)(2): abuse of power, including but not limited to intimidating witnesses, knowingly obtaining a false confession or knowingly making a false statement
• 8(b)(3): physical abuse (unreasonable/excessive use of force)
• 8(b)(4): demonstrating bias based on race, national origin, religion, gender identity, etc.
• 8(b)(7): participation in a law enforcement “gang”
• 8(b)(8): failure to cooperate with an investigation into potential police misconduct
• 8(b)(9): failure to intercede when seeing another officer use excessive force

The information below is from the POST Presentation: Decertification, Investigations & Reporting Obligations. POST will be reviewing investigations prior to Jan 2022.