RE-AIR - The Brady List: Officers with Credibility Problems

On this rebroadcast, Melissa Santos from Crosscut joins Crystal to talk about her deep dive into Washington State’s Brady List, which is a list maintained by prosecutors of cops with credibility issues which may compromise their testimony in court. In her research she found that nearly 200 cops in our state have such credibility issues. They also get in to how recent laws may affect police accountability in Washington State, what happens when a police officer’s account of an incident differs from other accounts, and how the media could more responsibly report on official police accounts of an incident. 

As always, a full text transcript of the show is available below and at officialhacksandwonks.com.

Find the host, Crystal Fincher on Twitter at @finchfrii and find today’s guest, Melissa Santos, at @MelissaSantos1. More info is available at officialhacksandwonks.com.

 

Resources

Crosscut resources on Brady list investigation: https://crosscut.com/brady-list-investigation

 

“Nearly 200 cops with credibility issues still working in Washington state” by Melissa Santos: https://crosscut.com/news/2021/04/nearly-200-cops-credibility-issues-still-working-washington-state

 

“How fired cops win their jobs back: arbitration” by Melissa Santos: https://crosscut.com/news/2021/04/how-fired-cops-win-their-jobs-back-arbitration

 

“How public records gave us a window into WA police misconduct” by Melissa Santos: https://crosscut.com/inside-crosscut/2021/04/how-public-records-gave-us-window-wa-police-misconduct

 

“3 WA families on how new police laws could have helped their loved ones” by Melissa Santos: https://crosscut.com/politics/2021/05/3-wa-families-how-new-police-laws-could-have-helped-their-loved-ones

 

“Recapping the 2021 Legislative Session and Uncovering Washington Police Credibility Issues: A Double Episode – Melissa Santos – Crosscut - #127” from the Nerd Farmer Podcast: https://podcasts.apple.com/us/podcast/recapping-2021-legislative-session-uncovering-washington/id1223805236?i=1000519554971

 

“Full investigation of Manuel Ellis’ death casts new doubts on Tacoma officers’ stories” by Patrick Malone: https://www.seattletimes.com/seattle-news/times-watchdog/full-investigation-of-manuel-ellis-death-casts-new-doubts-on-tacoma-officers-stories/

 

“Tommy Le May Have Been Shot While Facedown on the Roadway, May Not Have Even Had a Pen, Documents Show” by Carolyn Bick: https://southseattleemerald.com/2020/10/09/tommy-le-may-have-been-shot-while-facedown-on-roadway-may-not-have-even-had-a-pen-documents-show/

 

“Opinion: Remember Tommy Le” by Senator Joe Nguyen: https://southseattleemerald.com/2021/06/14/opinion-remembering-tommy-le/

 

“Newspaper carrier who was confronted by Sheriff Ed Troyer files $5 million legal claim against Pierce County” by Jim Brunner: https://www.seattletimes.com/seattle-news/politics/newspaper-carrier-who-was-confronted-by-sheriff-ed-troyer-files-5-million-legal-claim-against-pierce-county/

 

“How Headlines Change the Way We Think” by Maria Konnikova: https://www.newyorker.com/science/maria-konnikova/headlines-change-way-think

 

Transcript

[00:00:00] Lisl Stadler: Hi, I’m Lisl, the producer of Hacks & Wonks. Last summer Crystal interviewed Melissa Santos, an exceptional journalist from Crosscut, about her investigative reporting regarding what’s called a Brady list - a list that prosecutors keep of law enforcement officers who may have legal credibility issues. Since Melissa started writing about this, several counties around Washington state have changed the way in which they treat reports of officers who have had shaky relationships with the truth, but others have not. As we are currently in Legislative Session again, we thought that this would be an interesting episode and issue to revisit. You can find out more about this investigation at crosscut.com/brady-list-investigation. Additionally, there you can submit information about an officer experience you’ve had, or ask questions that you’d like answered about policing in our city and state. Thanks for listening and enjoy the show.

[00:01:11] Crystal Fincher: Welcome to Hacks & Wonks, I'm Crystal Fincher and I'm a political consultant and your host. On this show, we talk with policy wonks and political hacks to gather insight into local politics and policy in Washington state through the lens of those doing the work with behind-the-scenes perspectives on what's happening, why it's happening, and what you can do about it. Full transcripts and resources referenced in the show are always available at OfficialHacksAndWonks.com and in our episode notes.

Well, I'm really excited to have you join us today because lots of people are familiar with your reporting. You are known for doing very in-depth, long form reports and really diving into the details of issues - reporting thoroughly. And you really outdid yourself this time by doing a long-term investigative series on officers on the Brady list in the State of Washington. What motivated you to even do this story?

[00:02:08] Melissa Santos: Well,, I had known about these lists, where essentially these are lists prosecutors have of officers that have some sort of issue - an issue that often deals with their veracity, whether they tell the truth, not always, but sometimes. And especially after George Floyd's death, and we were seeing, sometimes, the initial narrative surrounding what happens during police uses of force especially isn't later found to be exactly what happened or some details are different. And sometimes we've been hearing a long time also - families of police shooting victims saying that they don't think the official story is right. So I just figured, if we have known officers who may have issues with truth, to the point that prosecutors keep lists of them and have to tell defense attorneys about this past issue, then it's worth finding out who those folks are, why they still have jobs, what the issue was. And so that's why I started on it last summer.

[00:03:16] Crystal Fincher: Right, and so as you covered, the Brady list is a list of officers who for some reason, their truthfulness has been called into question. What types of issues, or is it just lying that lands you on the Brady list? Are there other types of behaviors or activities that put you on there?

[00:03:34] Melissa Santos: Lying is the most common, or some sort of dishonesty. There also though, I mean, if you demonstrate racial bias and there's some documented incidents of that, you can get on the Brady list. I'm not sure that every officer that is suspected of having some bias is on this list - there's only some that are on there. But also, uses of force get some folks on there as well. If there was deemed to be some sort of questionable or excessive use of force, they could be on the Brady list. The other things that get you on there are - maybe they don't really think you lied - exactly, intentionally - but somehow your official report really doesn't match the other evidence. Especially if it's dash cam video - if your reports do not match official dash cam video, and there's some discrepancy that seems like it could potentially affect the outcome of a case. That's something that has to be disclosed - that will put you on the list.

And I mean, prosecutors will say this list is just an administrative tool by which we kind of keep track of officers for whom we have to send out notices to defense saying, "Hey, you should know about this past thing." Because it's a due process issue - they should have all the evidence that might indicate a cop's credibility is in question. And that can relate to future cases if the cop, maybe has been less than truthful in the past or there's suspicion that they were.

[00:05:04] Crystal Fincher: Yeah, absolutely. And it is important to really consider and talk about why the honesty and integrity of officers is really important and why this list is necessary. You just talked about it being a due process issue - and certainly in a trial, if there is reason to doubt the testimony of an officer, oftentimes that can be the determining factor on whether someone is viewed to be guilty or innocent. An officer's word is taken as truth universally. And that, in issues of guilt and innocence, you can dramatically impact and infringe upon someone's civil rights, their constitutional rights if you don't tell the truth, and that can result in them going to jail. It can be a lot, to some people, simpler. It could be, hey, maybe they didn't take a report of a crime seriously, and it depends on whether insurance is going to cover something, or their employer covers something, or whether or not they eventually wind up arrested.

They have so much control and influence over people's lives and what happens to them that they should be, and theoretically, are held to a higher standard when it comes to their conduct and their honesty. And so this list is saying, hey, these officers have not met standard of high conduct, and we need to consider that - that we can't automatically take their word as being truthful and honest, which has also been an issue in reporting overall. And I know you've had conversations, there was a great conversation you've had on the Nerd Farmer Podcast about this, talking about how reporters take officer's words as fact. And how after incidences, it can be an officer, an "officer-involved shooting", when an officer shoots and often kill someone. Or they do something and they come out with their statement about what happened - that has, as a default, been reported as fact. Is that practice changing - is that practice, do you think, worthy of being changed, and have you seen that talked about in reaction to your piece that you did?

[00:07:27] Melissa Santos: I think in the last couple of years, especially, I feel like there has been a broader discussion in the media about how to use police statements. But I do think there's pressure, especially for daily media outlets and newspapers, to get a story out quickly, immediately. And the police statement really is all you have at first, most of the time. And so I just think that that needs to be presented in the proper context. And not just kind of - I think that we've kind of been a little flip with being, like, "We said, 'Police said.' That it was the police who said it." Yeah. But I think that we might need to be more explicit and say, "This is the police's side of the story. We don't have other witnesses to tell their side of the story right now. So this is only..." I think we might just need to call that out a little more clearly, rather than just a small attribution and assuming readers can follow that.

And certainly readers can follow - they're smart - but people read things quickly. So, I just think that you need to stop readers and say, "Hey, this is all the information we have. We're working to get more. This is what the police say. There was some..." Especially now since we have the internet, there's usually some sort of, not all the time, but sometimes there's conflicting reports from the scene from social media. And I think maybe that can be acknowledged too. And I just think that it does need to be considered. Because I think the original press release from George Floyd's killing was like - it was not saying that Derek Chauvin stood on his, put a knee on his neck for nine minutes, right? It was like, "Oh, he died of natural causes after an altercation." It was something like that, right? Or he died of respiratory failure, or something like that. It wasn't like, "Respiratory failure because our person was constricting his airway with his knee for nine minutes." That was not what it said, right?

So I think we're all learning we need to be more cognizant that the police story is not the correct story, but all the time. However, there's been people saying this for a very long time. So I think media is a little slow to catch up on that. Sometimes that first statement may be accurate. I mean, it's not always inaccurate necessarily, but certainly there's enough instances where it has not been an accurate depiction of what happened during a use of force incident that there's reason to question whether you should just run with that narrative in the very beginning.

[00:09:51] Crystal Fincher: Oh, absolutely. I mean, we've seen that here locally recently. We saw it with Manuel Ellis, we saw it with Tommy Le. We saw it with Pierce County Sheriff Ed Troyer, where their account of events does not match up with that. I think your point of putting it in context and the need for media to independently work on verifying that narrative - that is one reported perspective, that should not be the only reported perspective. It should be noted that if that hasn't been able to be independently verified or verified through reporting by other means, that that is called out and explicitly said. I think that's helpful.

[00:10:45] Melissa Santos: I think we also need to be mindful of updates to stories, because that's a lot of times sort of how the industry has worked - well, we do a new story and we fix things. I mean, it wasn't inaccurate, that was what police said. That's what we said that was what police said. So that story is still somewhere in the ether. Again, the internet lives forever, basically for the most part. So those older stories can still cloud the truth of the actual matter if they remain up and aren't clear about what actually happened. So I think that there needs to be more deliberate going back and saying - and sometimes you still see this - we have a new version, we have more updates to this story that we've put here. Maybe for integrity's sake you may not want to delete the original story, right? That's not something we generally do. But something at the top saying - We've gotten more information. The updated information is here. You should go there. So people don't find some old story in a vacuum that doesn't have all that important context. And that's something we need to look at as well.

[00:11:38] Crystal Fincher: Yeah. And certainly, also underscoring the importance of headlines - people can discern information, but it is also a reality that a lot of people don't read full articles or they may not have time to read through every article - so rely on headlines sometimes, and may get back to the information to get more detail or may not. So I hope that there is widespread thoughtfulness and consideration being given to putting that reporting in more context and not just treating that as a factual account that just gets passed through and kind of transcribed without it being verified, or at least explicitly noted that it hasn't been, that that is a perspective. Back to, I guess the issue of the Brady list overall, do all officers - how comprehensive is the list? We have a list of around, is it around 200 officers right now?

[00:12:44] Melissa Santos: Right. About 200. A little under 200 right now - statewide.

[00:12:48] Crystal Fincher: Do they feel like that covers the number of officers there? Are there still glaring holes? Or how hard is it, or how easy is it for an officer to wind up on that list?

[00:12:58] Melissa Santos: So I do think it varies a little by jurisdiction. But I will say in general, most officers don't get on the list for nothing - just for some casual, maybe they did something, maybe they didn't. I do not think that it is easy in the sense that you have to have some sort of concrete evidence usually. I don't think that prosecutors will put officers on this list of cops that may have issues, issues that have to be disclosed to the defense, without some sort of evidence that something went wrong or that there was some sort of fishy activity. So getting that evidence that a cop lied, for instance, that doesn't always come forth. So it's not always clear that a cop lied, so it's rare to actually have something really specific, like we saw proof that what they said did not match what actually happened. So that's somewhat rare, so that influences who goes on the list and who does not go on the list.

It also is dependent a lot on what police agencies report upward to the prosecutor's office. I mean, most of this is based on police officer disciplinary procedures. And if the police agencies do not have a sustained finding of misconduct, of dishonesty, then often that does not end up putting an officer on a prosecutor's Brady list, even if maybe there is some evidence that someone might think, well, wait, wait, wait, wait. I think that that actually was kind of messed up and maybe that investigation didn't actually turn up what it should have. So you're depending on the police officer disciplinary process, which in some cases I think some people would argue does not always kind of identify officer misconduct as reliably as it should, since it's the department investigating its own officers.

So that's one issue. And defense attorneys just say that, no, there's all of these officers we kind of know have issues that are not on this list. And so it's an undercount in that respect. And I should add that the 200 or so officers that I identified are ones that are currently working. There was a lot more that were on the list, but maybe have left law enforcement and things like that. So we actually kind of took a look to say, who is still around? Because theoretically if there's officers who have lied or have used force and they've been fired, you're like, okay, well maybe that's an appropriate response. But they still end up on prosecutor's lists in case they get another job in law enforcement or the prosecutors don't keep up with all the personnel stuff sometimes. So, yeah. So we actually narrowed it down, but there are almost 200 still working in the state.

[00:15:41] Crystal Fincher: So is it fair to say that usually officers wind up on the list when their own departments have found that there has been some kind of dishonesty or misconduct?

[00:15:51] Melissa Santos: Yes. The vast majority of the time that's what I found. In fact, I think that King County even has a system by which they have a pending list, a pending sort of, well, we're seeing how the outcome of this investigation plays out. And if the allegation is not sustained, that they won't end up even necessarily end up on the permanent list. So there certainly is some due process in that respect for officers. I've definitely have gotten some emails saying, oh, people can get put on this for anything. I don't think that's necessarily true. At the same time, there are cases in which a defense attorney brings something forward, being like, I looked at this guy's personnel file and this seems to be like you should've told me about this. And that sometimes will cause a prosecutor to say, yeah, that should actually be something that puts you on our list, even if the police agency did not deem it a problem.

I think one example of that is someone I actually used in my story - is a deputy in Whatcom County, who had used a really racist - he just said something really racist on Facebook about Native Americans. It was kind of joking about genocide. It was very bad. So his department didn't discipline him for that. I actually have inquired and I got an answer after my story ran that there was no discipline involved. And that came from a defense attorney who said, "I found this on my phone just looking, when I was looking up the key witness against my client, and you should know about this." And then so the prosecutor said, "Yeah, it does seem like it meets the legal requirements of something we need to disclose, so we are putting him on our list. But I really trust his testimony and I'm going to continue to call on him as a witness." They often say, this technically meets the criteria for something I need to turn over, but I have not had any issue with this cop and I trust that person.

[00:17:46] Crystal Fincher: Oh, the old, "I never had a problem with them, so they're not a problem for anyone" excuse, which we've all seen work out so wonderfully. I guess another question I have is, I've certainly heard reports and seen reports before that there can be misconduct that happens or a finding of some misconduct or lying, and that doesn't always make it or stay on an officer's record or in their personnel file. How does that affect or impact who winds up on the Brady list? Can there be actions or findings of misconduct that don't make it to the file, or that are erased from the file, and then that can prevent them from being on the list?

[00:18:34] Melissa Santos: In general, it depends on the county. But for instance, I'll use King County as an example. That's one case in which they told me they would not remove someone for their list. If it was something like, "Oh, an arbitrator said, 'We think this punishment was wrong, and we think you should not have disciplined this person.'" But finding the fact didn't change? And everyone agrees this happened, but it wasn't worthy of discipline or something like that. This is one reason why I actually did this story, because I realized the prosecutors have a repository of records on cops that sometimes their own departments may not even have anymore. Especially because in some cases, the police agencies, completely independent of the police contracts, an officer may have left pretty recently, but those disciplinary records are destroyed after usually six years. So even if it was at this point, 2014, 2015, something someone did in their last jurisdiction, that jurisdiction doesn't have those records anymore in a lot of cases, I found. But the prosecutor's office did.

So that's one reason I wanted to look at these records, because police disciplinary records are not very well-maintained. I think that's changing with the new law that just passed, it's supposed to hopefully change. But yeah, that was one reason. The prosecutors actually were better about keeping these records than the agencies themselves in some cases.

[00:19:58] Crystal Fincher: There seem to be so many loopholes, and we seem to be relying on people and agencies self-investigating and self-reporting, and there don't seem to be many exceptions to that. Looking forward, how are people - what has been the response to your story? How are people looking at the utility of the Brady List? And is there any responses that you've heard about how to make this list better, more comprehensive and more reliable?

[00:20:33] Melissa Santos: So I'm waiting to see if this - there is a new law they passed. I wouldn't say it was in response to my story, it was well in the works at the time I wrote. But there was a law that passed that said that police agencies have to send any findings of misconduct to the prosecutor's office within 10 days of their discovery of those incidents. So that's something the prosecutors say, "Okay, that would help us, because right now we don't feel like we're always getting them in a timely manner." Because even though the cops are supposed to turn that stuff over under the case law - that really should happen. They were saying, "Well sometimes it's like, they might turn them over once every six months, or maybe they send over a batch yearly or something." The prosecutors think that could get them in trouble, because they're assumed to know everything that the cops do. Because again, they're all part of the prosecuting law enforcement team.

So that new law, maybe it will help. I still think that it's dependent on the disciplinary - I guess we'll see. I think there is a little bit of wiggle room for how, whether the agencies think it's reportable misconduct or not - that law tries to clarify that - like, "You need to report stuff like this, lying, or if an investigation starts, you need to send it over." I'm interested to see how it's implemented on the ground, that's all.

And I'm not sure it solves the issue of - something else I'm looking into right now is whether prosecutors always do their job. That was a little too much to get into in my first story, but do they always turn over what they're supposed to to the defense, even for people on their list? Some defense attorneys tell me no, that they don't. They think it's very relevant that this cop lied sometime ago, but they didn't get a notification like they were supposed to from the prosecutor's office, is what some have told me. And I'm going to look at trying to find out how often that happens, that's a little hard to pin down. But there's a lot of ways in which it can still break down, I think, even with this new law potentially.

[00:22:47] Crystal Fincher: Yeah, I'm glad you're looking at doing that story. Certainly just from attorney friends that I have, have heard stories of that happening. And you alluded to earlier, the very close relationship between police and prosecutors, and those prosecutors relying on the testimony of police to make their cases in sometimes. Sometimes it is the police making their case, and so there seems to be an incentive to present that cop in the best light possible, and to cover up anything that could jeopardize their case - which would be misconduct or lying from an officer. So I'm excited to hear that. Looking at, from what you've reported, as you're looking at the process, what do you see could be put into place to make it more reliable or strengthened? What are the biggest loopholes, or areas of opportunity for improvement?

[00:23:49] Melissa Santos: I understand the prosecutors have a workload. I don't think they're just mostly sitting around on their butts not doing anything. I'm not sure how this would exactly necessarily work, but I have a defense attorney who said she just looked at the guy's public Facebook page and found this, and the prosecutor had not had that in their file or anything on this cop. Maybe the prosecuting office does need to take a bigger role in saying, "Maybe we need to do a little more looking at our witnesses ourselves." Because it is a constitutional obligation for them to turn over exculpatory evidence, stuff that could clear someone or affect the outcome of someone's case. They have to do that.

I think the prosecutors take that seriously, in general, but I'm not sure how much they're taking it upon themselves to look for stuff that should be disclosed. I've kind of been told, "We can't do our own disciplinary investigations. How are we going to do that? We have to rely on the cops for that." But maybe there's at least some cursory work that needs to be done, or someone in each office that just looks up every witness and finds more stuff on the prosecutor's end. I'm not sure - if that's not feasible, but it does seem like that's where things go missing sometimes in this process. And still could, even with this new law. So that's happened.

And then there's also this element of - I'm just really unclear how determinations are made that someone's bias or use of force merits them putting on the Brady List. Because I think that there's plenty of people in our community that would argue that there are more than half a dozen officers who have demonstrated bias in a way that maybe should be mentioned in future cases that they're a witness on. But I only found maybe six or eight cases that were people on the Brady List currently for bias. So that seems like it could be low potentially. That determination is a little fuzzy, I think to me, how is that determination made? I don't know though that there's that many formal determinations of sustained finding that you were racist in the police world right now. And also, uses of force - there's not that many officers on the list for use of force, even though theoretically they should be. And I suspect there's a few more cases that maybe didn't make the list, where officers might have used force in a way that defense attorneys would want to know about in their past.

[00:26:22] Crystal Fincher: Yeah, you make some really good points. And even to your point, it does seem like most people involved in the legal system, prosecutors included, are largely acting in good faith. But the institution sometimes present some obstacles, and it seems like the job of a prosecutor, and investigating, and how they interact with police - 30 years ago, looking up their social media history was not a thing. Seeing if dash cam video or body cameras matched up to their account was not a thing. And so there's just a lot more to look into and they just may not have also expanded their practices and have the daily resources, given their workload, that accounts for being able to look into all of that. But maybe that should be happening, maybe they do need to really explore how to make sure that they're looking at all available evidence to help account for that.

[00:27:26] Melissa Santos: I actually thought of something else. In fact, there's a couple of people who got added to the Brady list apparently because of my going around asking everyone for their list, basically. That sort of indicated to me that there was some lag time, I guess, in people being added to the list. That's even on the prosecutor's end, apparently, I think. Or maybe they were like, "Oh, we really should get an update on this guy. Whatever happened with this?" Yeah, I think that there's some potential for wiggle room there.

I will say there's some instances when prosecutors were really concerned about a cop and the prosecutor saying, "This is a problem. We need to put that person on our list," happened independently of officers. But that was not the majority of cases. It was only a handful that I saw and had records on.

[00:28:17] Crystal Fincher: Yeah. It also seems like there is a problem with, okay, we only keep records for six years, or however long that is. If an officer changes jurisdictions, we just may not know that they had some egregious things on their record from 2013. Seems like we do that for folks on the other side of the criminal justice system, and if there is something on their record from 2010 or, really anytime, that that counts against them in terms of what they're charged with, how they're sentenced. And if it seems like that should be a factor taken into consideration for people who are defendants, certainly other people involved in that - that should be consistent. And, wow, 2014 just does not seem that long ago to be discounting what people are doing.

[00:29:12] Melissa Santos: Right. I was talking - early 2010s, there are some records I don't have. There was a guy who was police chief in one small town that oversaw some really, really bad management of stuff - evidence was just lying around the squad room. Actually, mishandling of evidence could get you on the list too. This was really rampant, bad. An auditor came in, he ended up leaving the department - but that works in another department now. And this, this changeover, he left that department in 2012 or something. There's records I can't get anymore from some of that. Yeah, it doesn't seem like that long ago, really.

But I will say there's this new bill. I was asking how much will this really help? This bill that deals with officer decertification, making it so it's easier for the state to pull an officer's license does kind of set new rules for union contracts to not allow them to destroy or remove files from people's personnel records because this actually happens as well. Sometimes officers can request after two years or something - sometimes it's as low as two or three years to have something removed from their personnel file. And all that might be in there then is a letter saying, "This officer asked for this to be - some disciplinary action to be removed." And I think that in some cases you can still get those records by asking a different department somehow, but it obscures the process at the very minimum, even if those records in some cases may be attainable somehow else. And so that's something that will change apparently with this bill. You won't be able to have contracts that let officers remove stuff from their files as often, at least.

[00:30:51] Crystal Fincher: I thank you all for listening to Hacks & Wonks on KVRU 105.7 FM. The producer of Hacks & Wonks is Lisl Stadler with assistance from Shannon Cheng. You can find me on Twitter at @finchfrii, spelled F-I-N-C-H F-R-I-I. And now you can follow Hacks & Wonks on iTunes, Spotify, or wherever else you get your podcasts. Just type in "Hacks & Wonks" into the search bar. Be sure to subscribe to get our Friday almost-live shows and our mid-week show delivered to your podcast feed. If you like us, leave a review wherever you listen to Hacks & Wonks. You can also get a full transcript of this episode and links to the resources referenced in the show at officialhacksandwonks.com and in the podcast episode notes.

Thanks for tuning in. Talk to you next time.