Lane County DA explains how ‘Brady list’ protects your rights

Presenter: Former Eugene Police Officer Martin Siller was recorded making derogatory statements about women and Black people. The case raised questions about how the courts deal with bias in officers and other witnesses. At Eugene’s Civilian Review Board meeting in October, Lane County District Attorney Chris Parosa:

Christopher Parosa (Lane County, district attorney): In 1963, the U.S. Supreme Court had issued Brady v. Maryland, a decision that indicated that prosecutorial suppression of evidence that’s favorable to a criminally accused person violates that person’s 14th Amendment rights.

And since that time we’ve had numerous federal and state cases that have provided additional clarification.

Originally under Brady v. Maryland, it was just when the defense had made a request for such information. Since that time, it has become an affirmative obligation that we have as prosecutors, to provide that if we are aware that such evidence should exist.

Our obligation actually tracks with law enforcement’s obligation. So if law enforcement, for example, is aware of favorable information to a criminally accused person, they have an affirmative obligation (largely under our ethical obligations, but also our legal obligations) to provide that information to the accused and/ or their attorney, so that it can be used in their defense of their own case.

Really what Brady evidence is, is there’s kind of two categories and they’re similar in nature, really.

There’s exculpatory evidence, evidence that is favorable in some way to the accused with regard to the criminal act itself, and then there’s impeachment evidence—any evidence that we’re aware of that calls into question the integrity of the witness we may choose to call in a case of trial, we have to provide to the defense as an obligation and affirmative obligation.

So in the context, say, for example, of Brady evaluations, and particularly with regard to the law enforcement officers, exculpatory evidence is typically evidence that they’ve been untruthful, evidence they’ve committed a crime, evidence that they have some bias or interest in a case that they have investigated, or they have been some way influenced, or they’ve actively engaged in suppression of evidence.

There can be also a situation where an individual officer has a history of either recklessly or negligently excluding or failing to document exculpatory evidence.

Those claims can come to our attention as well and may implicate our obligations under Brady.

So, they’re fairly rare where there is a documented history of some kind of a person failing to preserve exculpatory evidence, but they do arise from time to time and we have to consider those.

Impeachment evidence is really just anything that under the Oregon Evidence Code – (Rule) 609 that demonstrates that a person or witness, a police officer, for example, may have a bias or interest against the person for whom they are testifying against.

This can include a racial animus of some kind. And sadly we’ve seen this example recently in our community, involving an officer that made some very disparaging racial comments.

But it can also include other interests they may have that are contrary to the accused person that they would then be a witness in criminal action.

In Lane County, the way we conduct these investigations ultimately is that my office has a three-person team that evaluates any allegations of Brady that come to us.

So usually what happens with regard to these investigations is that somebody will make an allegation that a person has lied, for example. That’s the most common kind of evaluation we do. And we generally will have to wait to find out from either the administrative investigation or from law enforcement giving us as much information as they can about the allegation that exists.

That an allegation, for example, of untruthfulness has been made and then we as a three-person team individually assess any documentation that exists regarding that incident and evaluate whether or not for example, there’s an opinion that may exist out there, that the person is untruthful, that would be potentially impeachment evidence that’s admissible under Evidence Code (Rule) 609 under Oregon law and we’d have to provide that information.

If the person, for example, has a reputation for being untruthful, that is something that then we would have to disclose as a part of our Brady obligations because it is impeachment evidence under Evidence Rule 609. So we as an office or a three-man panel, each independently evaluate that.

Then we come together to talk and decide whether or not there are Brady implications that exist with each and every case that happens. And we have basically a three-tier determination that we are making from that evidence.

The first tier is that there are no Brady implications that are evident within the record that we have before us, meaning that there is no evidence that there is exculpatory evidence or impeachment evidence that is associated with the investigation we have, and therefore we have no obligation under Brady to divulge that in any way to the defense.

Second tier is what we affectionately call ‘Brady Yellow,’ where we determine that there is an obligation to disclose the information to the defense, but it doesn’t prohibit that person from being a witness in our cases going forward.

We just have to make it clear to the defense that ultimately this material, this evidence exists out there and they can use it for whatever purpose they choose to use it for.

It doesn’t mean that we won’t ultimately challenge it in a motion before the court, whether or not it’s actually something that can be used in the context of a trial, but we must provide it to them so that they can ultimately evaluate it for themselves.

And then there’s the third or ‘Brady Red,’ as we call it, affectionately in Lane County. And that is that this is a person that we’ve made the determination cannot be called as a witness in any state case, that our concerns over this person are so significant that we will choose not to use them as a witness in any of our cases going forward.

When that occurs within an active criminal case, we of course divulge the information to the accused or their attorney. That is an obligation that we have to them. But we’ve made the decision. We’d rather just not use the person at all because we have significant concerns about the integrity of their information.

The most common form of Brady violation that exists for us in the context of law enforcement officers is allegations of dishonesty. Those are the most common ones we deal with, and there’s really kind of three levels of dishonesty that we have to deal with and that may implicate where they fall on our three-tier scale as far as what our obligations will be going forward with that officer.

The first is intentional and malicious deceptive conduct by a person. It’s going to likely result in disqualification of that person as a witness. If, for example, we see, intentional deception where it is repeated, habitual, or there’s a clear pattern that has developed of dishonesty or a lack of being forthright, we may qualify them as a Brady Red candidate as well.

And people should know that there are significant impacts associated with being designated by a prosecutor’s office on the Brady list at all, but specifically with regard to the Brady Red designation, because it effectively means they cannot go out into the community and enforce the laws in any meaningful way going forward.

So there is dramatic impact as a result of that designation, and we take it very seriously and that we realize, that every one of us in here is going to make some mistakes. We’re trying to evaluate whether or not these were intentional and malicious mistakes or of such a repeated nature that it calls into question the entirety of their body of work.

The second kind of category is conduct, intended to deceive, but is not necessarily malicious in nature. And this can result in the required disclosure of the material to the defense or the criminally accused person, but it doesn’t necessarily disqualify the person as a witness.

Some examples of this, would be a deceptive statement that was made to conceal unintentional misconduct, which we’ll see from time to time. An error is made and instead of just owning the error when it came to light, they intentionally lie about their actions.

another example could be if, there is some untruthfulness during the course of a purely private off-duty statement intended to deceive others in private matters. And the classic example of this is an affair that an officer may be having.

Obviously, they may lie to their spouse about what’s going on. And again, we may designate that person based on the nature of those allegations of what occurred as a Brady Yellow person, but it often will fall under the Brady Red designation for us.

The third type is excusable or justifiable deception. And I know that seems weird, but this is likely to not require a Brady disclosure at all. It is where a person makes an inaccurate or false statement based on some misinformation that they had or a genuine misperception of the circumstances that existed in their case.

So they have wrong information that’s been given to ’em, say from another officer, and they make affirmative statements assuming that information was accurate from there, and that can happen from time to time as well.

We see that, you know.

Another’s mistake can get you into some hot water as well if you rely on it too heavily.

So that’s kind of Brady in a broad nutshell for us. We get quite a few every year from, different places they can come. They often come from the police agencies themselves is who self- report these things.

Every year in January we put out a letter that indicates the obligations that each agency has under Brady versus Maryland and to disclose this information and it’s got an exhaustive list of things that may be included and required disclosures to our office so that we can make the determination as to whether or not it must be disclosed to the criminally accused people or their attorneys.

My experience has largely been that our police agencies tend to over, use that, that we will frequently get calls in which they say, I’ve got this scenario going, do you think this is going to implicate Brady in any way? And sometimes it does and sometimes it doesn’t. We will let ’em know if that’s the whole constellation of facts before me, this is not a Brady issue or it’s a Brady issue.

But generally with law enforcement offices. We’re generally relying on them to conduct the investigations.

Presenter: In the media, there’s been a lot of talk about a Brady List. He was asked: Is there an actual list? District Attorney Chris Parosa:

Christopher Parosa (Lane County, district attorney): Yes, it is a record that is actually kept within our case management system within our office. And I’ve always taken the position that it is a public record and that if requested, I provide copies of that to anyone who requests.

Presenter: Should officers on the Brady list be concerned about their ability to continue in law enforcement? Chris Parosa:

Christopher Parosa (Lane County, district attorney): Tremendous concern. You could talk to law enforcement directly, but I can tell you anytime I go to help train law enforcement officers, one of the things that I talk to them about extensively is they have to zealously protect their reputation on these issues.

You know, specifically about the honesty thing, the most common mistake I see coming from law enforcement is, to lie about something that if they just fell on the sword from the very beginning on it, it would be no big deal at all, or there’d be a minor slap on the wrist for having violated some de minimis policy or something.

The ones who get themselves in trouble are the ones that then lie about it, and there’s a demonstrable ability to show they are lying about what happened.

And bodycam, for example, has been a really good aid in that regard because often we can see directly what may or may not have occurred during a circumstance. And it may completely contradict what was said by the officer, where you would’ve hoped that they would’ve protected themselves a little more than often we see.

So, if there is an opinion or there is a stated reputation for untruthfulness (and again, I’m going to continue to use that one, it’s just so common), what we begin to look for is: Is there anything to support that? Is there anything that would form the basis for that opinion?

If there is, we’re going to out of abundance of caution, disclose it, we’re just going to disclose it. We can fight about it later in court if we think it doesn’t rise to the level of being truly admissible in a courtroom setting.

But I want to err every time on the side of disclosing information if it can be argued in any way that it is impeachment or exculpatory evidence to an extremely accused person.

Presenter: Lane County’s elected District Attorney Chris Parosa explains how his office protects your 14th Amendment right to due process. And yes, there is an actual Brady List— witnesses that the DA can and cannot use, including some that are biased and others with a reputation for lying.