March 14, 2017 (Fault Lines) — In an excellent article in Vice, which somehow went from being a porny magazine found at Urban Outfitters to the home of real journalism, Daniel Denvir recently explored the epidemic of Philadelphia police officers perjuring themselves in criminal proceedings and totally getting away with it. For those who don’t regularly practice at the Philadelphia Criminal Justice Center, it’s an eye-opening description of our dysfunctional system.
One particularly shocking revelation was the Philadelphia District Attorney’s Office’s concession that, despite several high-profile cases of perjury and other criminal behavior by police officers, it has no systematic way to review officer disciplinary history unless Internal Affairs “refers the cases” for criminal prosecution. In other words, the DA’s Office itself has no idea when officers have been caught lying, cheating, stealing or beating up the citizenry. It thus believes itself to have no obligation to disclose such evidence to the defense. When called out on its unconstitutional policy of hiding from so-called Brady material, (which will be defined below,) the DA’s office responded that “all internal police discipline is [not] automatically Brady material,” so it had no obligation to go looking for some in any particular case.
“Brady material” is a term that comes from Brady v. Maryland, which was a case where the Supreme Court held that a prosecutor violates a defendant’s right to due process when she fails to disclose evidence to the defense that is material either to guilt or punishment, irrespective of the good or bad faith of a prosecutor. As long as the Brady rule has been in place, though, prosecutors have been trying to avoid its implications. One favorite trick has been the old “I never learned anything bad so I don’t have to disclose anything.”
Unfortunately for both corrupt and merely lazy prosecutors, the courts have long ago decided that a prosecutor’s knowledge of exculpatory material goes to the whole “prosecution team,” which includes the police. As the Supreme Court explained in 1995 in Kyles v. Whitley, “the prosecutor has the means to discharge the government’s Brady responsibility” by learning all the pertinent facts known by the police. In the words of the Pennsylvania Supreme Court, “the prosecution’s Brady obligation clearly extends to exculpatory evidence in the files of police agencies of the same government bringing the prosecution.” This means that if a police officer on the team knows about material evidence that is favorable to the defense, even if the prosecutor herself has no idea, it is Brady material that must be disclosed. If the defense doesn’t know about it, the defendant’s right to due process has been violated.
If we look at the situation in Philly, the prosecution team is presumed to know about an officer’s disciplinary history. An officer involved in a case knows if he has previously been caught perjuring himself or brutalizing someone and then lying about it. He’s part of the prosecution team, so the prosecutor is presumed to know as well, even if she decides that she doesn’t want to ask the officer about his past for fear she might find out something she doesn’t like. In other words, the Constitution requires the prosecutor to ask her cops about their past, and share anything material with the defense.
Philadelphia prosecutors apparently never got that case update, however. And now they have been caught in a national publication defending their unconstitutional policies by relying on willful blindness.
But what about the notion that an officer’s personnel file isn’t automatically Brady material? That’s true, but not terribly helpful to the DA’s office. Let’s say the prosecutor asks an officer if he’s ever been disciplined. Arguably a past incident involving a violation of the grooming policy isn’t material to the defense, and thus wouldn’t be Brady material that needed to be disclosed. Fine. But if the officer mentions he’s had 75 allegations of excessive force, has been sued dozens of times, and has been disciplined for “dishonesty,” then all must go to the defense. No shit.
Unfortunately, even with the Philly DA’s admission of potentially systemic constitutional violations, this doesn’t necessary help the average defendant. Typically, Brady only works on the honor system. A prosecutor has an obligation to make these inquiries and disclosures. As long as the prosecutor takes that seriously, the system is better. But if the prosecutor just decides not to follow the rules, it is very difficult to sniff out violations. The defense can only show a violation if they find out about the suppressed information.
This means that as long as the line ADA stays ignorant, and the defense doesn’t miraculously stumble on a news article about the officer involved in their particular case having been caught committing perjury, the defense has very little chance of finding the dirt on the bad cops. If the only person in the room who knows about the disciplinary file is also a serial perjurer intent on keeping that fact a secret, a constitutional violation has happened but no one is able to do anything about it.
There is a silver lining, however. If an individual does discover a Brady violation that occurred in his case because of the prosecutors’ total lack of effort, he may very well be able to punish them with a civil suit. Civil suits for constitutional violations are all about damages – how much harm you actually suffered. If a cop does something illegal, but you’re no worse off for it, you might have a lawsuit but it isn’t worth much.
This general rule gives way, though, when you’re dealing with systemic malfeasance. If a constitutional violation occurred because of a municipality’s complete lack of oversight, for example, the damages available to a plaintiff grow significantly. Individual bad actors exist, no matter how good our system may be, and the damages for their misconduct may be low in the individual case. But if the system is such a train wreck that we let the individual bad actors thrive and multiply, then that systemic problem comes with systemic damages.
By going on the record to discuss both its total lack of effort and its absurd view that a cop’s prior misconduct is not really Brady material anyway, the DA has set the City up for a big problem in a civil action. Maybe if the City is forced to pay out a big enough civil award, the DA’s Office will rethink its position.