1 LAW ENFORCEMENT MEETING STLAW ENFORCEMENT MEETING ST. TAMMANY & WASHINGTON PARISHES WEDNESDAY APRIL 10, :30 A.M. DISTRICT ATTORNEY’S OFFICE 701 N. COLUMBIA STREET COVINGTON, LA BRADY V. MARYLAND

2 TABLE OF CONTENTS March 8, 2013 Letter to all Law Enforcement Agencies Page1-2 New York Times News Article-Thompson v. Connick Page3-6 NOLA.com News Article-Smith v. District Attorney Orleans Parish Page7-10 Sample Hypothets-Brady Rule Application Page11-13 Sample Correspondence-Letter to Law Enforcement Agencies Page14-17 Foot Note Excerpts-Truvia v. Julien et. Al.-Federal Court Page18-19

3 Letter to all law enforcement agenciesPages 1-2

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6 New York times news articleThompson v. Connick New York times news article Pages 3-6

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11 Nola.com news article Smith v. District Attorney Orleans ParishPages 7-10

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17 Brady Rule ApplicationSample hypothets Pages 11-13

18 HYPOTHET NUMBER 1 Police officer A investigates child abuse case under item number of minor age 10. Three months later police officer B investigates child abuse case under item number of minor age 11. The two minors are first cousins and reside next door to each other. Both had similar acts of abuse. The step-father of the age 10 minor is arrested for sexual abuse. The age 11 minor next door recants and says nothing happened to him and no arrest was made. The age 11 minor will say nothing more. Are the facts found under item number discloseable under item number 12345? Is the information material and exculpatory as Brady material in the prosecution of the step-father? How can police officer A under item number determine the existence of the investigation by police officer B under item number 56789? What would happen if two separate law enforcement agencies investigated these offenses?

19 HYPOTHET NUMBER 2 Sheriff’s Detectives investigated a murder case which resulted in the arrest of defendant A. The investigation lasted 4 months and various detectives tracked down over 20 leads which did not produce a suspect but established 3 persons of interest. Further investigation resulted in the arrest of a 4th person (defendant A) who was indicted by a Grand Jury. Are the detectives required to report and disclose their findings on all 20 leads and the 3 persons of interest in the report submitted to the prosecutor? Of the 20 leads, 17 of them were determined to be false with only 3 being determined to have validity. Can those 17 leads be excluded from the reporting requirements?

20 HYPOTHET NUMBER 3 Homicide investigation has been completed with the arrest and indictment of a defendant. Two months after submission of the report and ultimate indictment, the mother of the defendant brings a witness to the Sheriff’s Office who offers to provide a statement that defendant was with him at the time of the homicide. After questioning detectives determined that this witness is either lying or confused and completely disregarded the accuracy of his statement. Is this Brady material? Should a supplemental report be submitted to the prosecutor?

21 HYPOTHET NUMBER 4 Police Officer is a detective currently investigating property crimes and car burglaries. Two years before the current investigation Internal Affairs has substantiated that the officer kept several DVD’s in an unrelated investigation. He is suspended for 2 weeks without pay and demoted. He has now been promoted back to detective status. Is the event 2 years ago material to the current investigation? Is his credibility as defined in Brady an issue? What if the IA investigation found that during the current investigation the officer was sleeping on duty and he was disciplined? Is this Brady?

22 HYPOTHET NUMBER 5 Sheriff’s Office investigating child abuse case involving a step-parent along with Department of Children and Family Services (DCFS). Detectives and case workers communicate and compare notes. DCFS claims their investigation is confidential and will not provide a copy of their report which declares that the complaint of child abuse is invalid. Sheriff’s Office proceeds with its investigation obtains a warrant for the arrest of the step-parent for abuse. Should law enforcement make reference to the DCFS investigation? Is the material compiled by DCFS Brady?

23 HYPOTHET NUMBER 6 Sheriff’s Office detective is lead investigator on a rape case. The victim of the rape went to High School with the detective 10 years ago and they dated briefly. Detective testifies at the trial and a defendant is convicted as charged. After trial and conviction defense attorney learns of the relationship between the detective and victim and files a Motion for New Trial alleging he should have been given an opportunity to know about this prior relationship. Should this relationship have been disclosed? Is it material to the case and/or the credibility of the witness?

24 HYPOTHET NUMBER 7 Sheriff’s Office investigating a rape of a 40 year old woman in St. Tammany. She identifies subject in a line-up, makes a positive ID; and defendant confesses to the crime. 10 years before this current arrest, the 40 year old victim had accused another defendant of rape, but recanted her statement to the Sheriff’s Office 3 weeks after the original complaint. After further investigation she advised the detective that the rape which occurred 10 years ago really happened but she was afraid. That rape 10 years ago went to trial and the defendant was found not guilty. Is that a material issue in the current rape case? Is the victim’s credibility an issue in the current rape case? Is the Brady material subject to disclosure?

25 THE BRADY RULE AS IT STANDS TODAYMust disclose material exculpatory (favorable) evidence to the accused Must disclose material impeachment (credibility) evidence to the accused

26 the standard for reviewIS THERE A REASONABLE PROBABILITY THAT HAD THE EVIDENCE BEEN DISCLOSED TO THE DEFENSE, THE RESULT OF THE PROCEEDING (TRIAL)WOULD HAVE BEEN DIFFERENT.

27 Sample correspondenceLetter to Law Enforcement Agencies Sample correspondence Pages 14-17

28 (DATE) (SHERIFF/CHIEF NAME) DEPARTMENT ADDRESS RE: Brady information in the Possession of Law Enforcement Dear (SHERIFF/CHIEF NAME): This letter addresses Brady information that may be in the possession of law enforcement agencies. lt sets forth law enforcement duties and procedures regarding disclosure of information about law enforcement employee/officer witnesses pursuant to the Brady rule. lt is intended to meet prosecutorial obligations and preserve the constitutional due process rights of defendants, while permitting efficient and effective law enforcement investigation and prosecution of criminal cases. This letter is intended to function in conjunction with established Brady policies/procedures applicable to prosecutors and law enforcement.

29 I. THE BRADY RULE The prosecution must disclose to the defense evidence that is favorable to a defend ant. Brady v. Marylond,373 U.S. 83 (1963). This duty to disclose such evidence is applicable even though there has been no request by the accused. United Stotes v. Agurs, 427 U.5.97 , IO7 (1976). The rule encompasses material exculpatory evidence including impeachment evidence . United Stotes v. Bagley,473 U.S. 667,676 (1985). Evidence is material"if there is a reasonable probabilitythat had the evidence been disclosed to the defense, the result of the proceeding would have been different," i.e. prejudice to the defendant must have occurred as a result. Kyles v. Whitley 514 U.S. 4I9, (1995). Suppression by the prosecution of material exculpatory evidence violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution. Thus, violations can occur whether the State willfully or inadvertently suppressed the evidence. Strickler v. Greene, 527 U.S. 263, (1999). In order to ensure compliance with these rules, the United States Supreme Court has urged the "careful prosecutor" to err on the side of disclosure. Kyles v. Whitley,514 U.S. 419, 44O (1995).

30 II. DEFINITIONS-WHAT IS BRADY EVIDENCERecurring Government Witness Recurring government witness are those law enforcement employees/officers for whom it is reasonable to believe will or may be called to testify more than once or on a regular basis. Exculpatory Evidence Evidence is exculpatory if it is evidence that is favorable to the defendant, is material to the guilt, innocence, or punishment of the defendant, and impeachment evidence that may impact the credibility of a government witness, including law enforcement officers. Exculpatory evidence must be disclosed. Materiality Evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different. A "reasonable probability“ is established when the failure to disclose the evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Such evidence must have a specific, plausible connection to the case, and must demonstrate more than minor inaccuracies. Evidence is material if it is facially apparent as exculpatory. Impeachment Evidence Evidence that might be used to impeach a witness is exculpatory evidence and must be disclosed to the defense by the prosecutor. impeachment evidence is evidence that demonstrates that a witness is biased or prejudiced against a party, has some other motive to fabricate testimony, has a poor reputation for truthfulness or has past specific incidents that are probative of the witness' truthfulness or untruthfulness. Prior inconsistent statements are impeachment evidence. impeachment evidence that is merely cumulative (i.e., duplicative to evidence already provided or presented) or impeaches on a collateral issue need not be disclosed. Admissibility of impeachment evidence is determined on a case by case basis by the courts. Therefore, even evidence that is likely to be inadmissible can still be considered Brady information, and thus be required to be submitted to the prosecutor.

31 III. LAW ENFORCEMENT AGENCY DUTIESGenerally Law enforcement officers must collect and document exculpatory and impeachment information discovered pursuant to administrative and criminal investigations and provide the same to the prosecution. Law enforcement agencies with information that could impeach any non-law enforcement witness must provide that information to the prosecution as well. Training All employees must be properly trained on the department's obligation to disclose Brady information. For the purposes of this chapter, employee means anyone employed by the agency who may be called to testify under oath. However, the existence of this letter and a copy should be made known and available to all employees. Employer-Employee Agreements regarding Law Enforcement Conduct Law enforcement agencies shall investigate all complaints regarding their officers in accordance with their established policies. lf an agreement, settlement, or other understanding is reached between an agency and an employee regarding a complaint, investigation or response, the agency should consider the impact of the subject matter of the complaint, investigation or response on the employee's ability to serve as a witness in any criminal proceeding for any jurisdiction.

32 IV. LAW ENFORCEMENT AGENCY RESPONSE TO BRADY INFORMATION REQUEST-CATEGORIES OF EVIDENCE AND PROCEDURES Agencies must review all their internal investigation files to determine if any possible Brady information exists on any of their employees who may be called as witnesses by the prosecution. If such information exists, they must submit the information to the prosecutor. The prosecution is under a continuing duty to disclose Brady information, and therefore agencies must also notify the prosecutor any time they become aware of new Brady information. lf an agency receives a request from a prosecutor for possible Brady information on an employee/office, the law enforcement agency shall comply with the request as soon as practicable and according to the policies and procedures below: Substantiated/Sustained Findings of Misconduct Related to Dishonesty Law enforcement shall disclose to the prosecution as Brady material information regarding any final determination by the Chief Law Enforcement Executive of a substantiated or sustained finding related to an employee's/officer's dishonesty or untruthfulness, regardless of whether or not discipline was given. Agencies should follow their current policies regarding document retention for substantiated/sustained/founded findings and disciplinary processes. Criminal Convictions Law enforcement shall disclose to the prosecution as Brady material information regarding criminal convictions of an employee/officer related to dishonesty or untruthfulness, if known.

33 IV. LAW ENFORCEMENT AGENCY RESPONSE TO BRADY INFORMATION REQUEST-CATEGORIES OF EVIDENCE AND PROCEDURES (Continued) Unsubstantiated Finding There is no requirement that law enforcement provide prosecutors with information concerning unsubstantiated findings about an employee. In-Lieu-of Actions/Agreements Actions / agreements such as resignation, demotion, retirement or separation from service of an employee /officer in lieu of disciplinary action may be Brady information if it is relevant to the case at hand. Each law enforcement executive should consult with the appropriate legal counsel in making a determination if information not related to substantiated findings is potential Brady information or in cases where he or she is uncertain regarding what action to take. Current or Ongoing Investigations Pending criminal or administrative investigations are considered preliminary in nature, and the prosecution has no obligation to communicate preliminary, challenged or speculative information to the defense counsel, J.S. v. Agurs, 427U.S.97,!09,fn. 16(1976). Each chief law enforcement executive should consult with the appropriate legal counsel in making a determination if information not related to substantiated findings is potential Brady information or in cases where he or she is uncertain regarding what action to take.

34 IV. LAW ENFORCEMENT AGENCY RESPONSE TO BRADY INFORMATION REQUEST-CATEGORIES OF EVIDENCE AND PROCEDURES (Continued) Expert Witnesses Law enforcement information regarding agency employee expert witnesses may be considered Brady evidence. Any final agency determination of a substantiated or sustained finding related to an expert witness's unsatisfactory employment performance that compromises the expert's conclusions or ability to serve as an expert witness, regardless of whether or not discipline was given, must be turned over to the prosecution. Other Potential Brady or Relevant Information Each law enforcement executive should consult with appropriate legal counsel in making a determination if evidence not related to substantiated or sustained findings of dishonesty or untruthfulness is potential Brady information. This may include evidence related to current or ongoing investigations, disciplinary actions, in-lieu-of actions, and employment agreements or when he or she is uncertain regarding what action to take. lt is also best practice to consult with legal counsel in cases regarding potential disclosure of other evidence that may be relevant in a case (such as excessive use of force findings in current cases with allegations of excessive use of force, findings of bias etc.). What is Not Brady Information Allegations that are not substantiated, are not credible, without merit, false or have been determined to be unfounded are not Brady information.

35 IV. LAW ENFORCEMENT AGENCY RESPONSE TO BRADY INFORMATION REQUEST-CATEGORIES OF EVIDENCE AND PROCEDURES (Continued) Notification to Subject Employee/Officer If potential Brady information is found in law enforcement agency files, the agency shall notify the employee/officer who is the subject of the potential Brady information, consistent with agency policy. The employee/officer notification shall include the opportunity to review the information that will be presented to the prosecutor. The notification shall comply with all policies and procedures, collective bargaining agreements and other regulations applicable to the agency and employee/officer. lf the possible Brady information identifies any other individual who may have privacy rights to the information, the agency shall notify that person, consistent with agency policy, of the agency's intent to provide the information to the prosecutor and/or court. Record Keeping lf the information is provided to the prosecutor and determined to be Brady information, the law enforcement agency should note in the employee/officer file that such information was subject to disclosure. In cases where a court determines that information must be disclosed to the prosecution and defense, the agency should note in the file that the information was subject to disclosure and maintain a copy of the court order with the information in the file. lf the court determines that the information should not be disclosed to the prosecution and defense, the agency should note in the file that the information was not subject to disclosure and include a copy of the court's finding in the file.

36 Truvia v. Julien et. Al. Federal Court Foot note excepts Pages 18-19

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