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Full Disclosure: Arizona fails to properly track problematic ‘Brady list’ cops

Posted: 12:17 PM, Aug 06, 2020
Updated: 2020-08-20 12:48:17-04
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Under a scattered and broken “Brady list” system, Arizona law enforcement officials have routinely failed to adequately track dishonest and disreputable police officers, disclose their misconduct in criminal cases, and hold them accountable, according to a year-long ABC15 investigation.

Despite a nearly 60-year-old constitutional requirement to notify defendants about problematic officers and their histories, the state’s system remains built on self-reporting with minimal oversight.

“When you have an officer who’s willing to lie, the entire system breaks down,” said Jared Keenan, an ACLU Arizona attorney. “If you have officers, who distort the truth or lie, and no one is being told about this, it’s possible lots and lots of people who shouldn’t be convicted are being convicted.”

In 1963, the U.S. Supreme Court in Brady v. Maryland ruled that police and prosecutors cannot withhold exculpatory evidence, especially past dishonesty by officers.

As a result, prosecutors began maintaining “Brady lists” to track law enforcement officials with integrity concerns, including past crimes, lying on the job, and other misconduct.

Through a series of public record requests, ABC15 requested Brady lists from every county in the state. The station also obtained thousands of pages of police misconduct cases, personnel files, and a database with every state police board case for the past twenty years.

The records and information reveal multiple failures and gaps:

  • There is no official statewide list of Brady list officers or official standards for what misconduct requires disclosure. Each county keeps their own list in their own way. None post the lists publicly.
  • There are no established punishments for police departments and county attorney’s offices that withhold or hide Brady material. ABC15 discovered at least 175 times in Maricopa County when officials delayed putting officers on the list.
  • There is no requirement for police and prosecutors to report Brady-level misconduct to the Arizona Peace Officers Standard and Training Board, which is the state agency that licenses officers. ABC15 found hundreds of cases went unreported.
  • Brady lists rely almost exclusively on voluntary reporting by law enforcement agencies. There is little outside oversight to ensure misconduct is properly investigated, sustained, and disclosed.

“The problem is that even though the Supreme Court has mandated that prosecutors have to give this information, there is no standard whatsoever for what kind of conduct rises to that level,” Keenan said. “In Arizona you have 15 different county attorneys making (all different decisions) with no standards.”

NO STATEWIDE LIST OR STANDARDS

There is no official centralized Brady list in Arizona.

Earlier this year, due to a lack of transparency and a legislative attempt to seal the information, ABC15 published a searchable database of every law enforcement officer on a county Brady list, current as of mid-2019.

The unprecedented database contained roughly 1,400 law enforcement officials. By cross-referencing the names to a roll of certified officers from AZPOST, it shows at least 220 officers were still on the job.

The Phoenix Police Department, the state’s largest agency, has the most officers on the list (approximately 390) and the most listed as active (106).

Across the state, dozens of new officers are added to Brady lists every year on average.

County attorneys in Arizona first began keeping official Brady lists in Arizona about 20 years ago, records show. Each county keeps their own list in their own way. Some county’s share information, but not all.

A few counties only started keeping lists within the past decade and only name a few officers, records show.

For example: The County Attorney’s Office in Gila County, where departments have a well-documented history of problems, said it tracks only four officers and doesn’t keep an official list. Multiple defense attorneys tell ABC15 the number seems low, and the list is representative of the problem.

The Arizona Prosecuting Attorney’s Advisory Council (APAAC), a state coalition of prosecutors established by lawmakers, has issued best practices for county attorney’s offices in recent years and touted the need for a statewide list.

However, those practices are not mandatory and neither is participating in the development of a statewide database.

So far, the lack of an official central database has resulted in situations where Brady officers leave a department in one county and go to work at another agency and aren’t present on the new county’s list.

LACK OF OUTSIDE REPORTING, ACCOUNTABILITY

Police departments and prosecutors are not required to report Brady-level misconduct to the state police board for licensure review.

It’s a gap in the system that lets officers escape accountability and limits transparency, according to Keenan.

“The issue is that the prosecutors who keep them have no requirement to share that information with AZPOST, which is the organization that would certify or decertify problematic officers,” he said. “If they don’t know about it, then these officers are going to be certified even in the unlikely event they were to get fired. They could move across town to another county, even another state, and none of that information is necessarily going to be tracked.”

Click here to download a list of AZPOST cases since 2000. Note: Not all AZPOST cases reflect misconduct. Some cases deal with administrative matters.

AZPOST officials confirmed that reporting officer misconduct to the state board is not required unless a police department fires an officer.

“The issue is that the prosecutors who keep them have no requirement to share that information with AZPOST, which is the organization that would certify or decertify problematic officers”

By comparing counties’ Brady lists to every AZPOST case going back to 2000, ABC15 found there is not a record of at least 400 Brady matters resulting in an official case before the state board.

AZPOST usually issues long suspensions or often permanently revokes officers’ certifications in cases of dishonest and criminal acts, records show.

“The board has taken a very dim view and held officers accountable when there’s violations of their integrity,” said Matt Giordano, AZPOST executive director.

However, sometimes the state board allows Brady officers to keep their licenses.

As a result of the lack of reporting and leniency, some departments end up filled with dishonest and criminal officers, and defendants don’t get a full accounting of their past misdeeds.

In Superior, ABC15 found that six of the department’s nine full-time officers in recent years had been fired from previous jobs for misconduct and ended up on a Brady list.

In Superior, ABC15 found that six of the department’s nine full-time officers in recent years had been fired from previous jobs for misconduct and ended up on a Brady list.

Videos, lawsuits, and incident reports highlight the chaotic and unconstitutional policing that regularly took place in the town.

“I was basically guilty until I proved myself innocent,” said Clint Peterson, a man who was arrested by Superior police for allegedly resisting arrest and giving false information to officer.

But body camera footage shows multiple officers, with long histories of dishonesty and misconduct, made multiple false statements in their reports.

It took a year and more than a handful of court appearances before prosecutors dropped the charges against Peterson, and he said they never disclosed video of his arrest showing unlawful conduct by the officers and excessive force.

“This happens to people every day, and they don’t do nothing about it,” Peterson said.

NO PENALTY FOR HIDING, WITHHOLDING BRADY INFO

Frances Salazar spent 22 months in prison based entirely on the testimony of a documented liar.

Phoenix Police Officer Anthony Armour’s history of dishonesty was never disclosed before the trial and kept quiet for months after she was convicted.

“What they did to me is wrong, period... There was no justice there at all.”

“What they did to me is wrong, period,” Salazar said. “There was no justice there at all.”

The full story on a grandmother convicted as a lying cop’s dishonesty kept secret will air on ABC15 News at 6:30 on Monday, August 10.

Her case highlights another glaring problem in the Brady system.

Attorneys said it’s nearly impossible to take action against law enforcement officials for withholding Brady material. It can severely tip the scale of a trial where an officer’s testimony is heavily-weighted evidence.

“For prosecutors, they have something called absolute immunity. It's the highest immunity under the law,” said Ben Rundall, an attorney for Salazar. “So a prosecutor could withhold evidence and information in a criminal trial that proves or exonerates the criminal defendant, and that doesn't matter under the law.”

In Maricopa county, ABC15 found police and prosecutors routinely delayed putting officers names on the Brady list, usually waiting months and sometimes years after misconduct was first confirmed.

The station’s data analysis shows at least 175 instances since 2000.

ABC15 determined the number by comparing dates officers were placed on Maricopa County’s list to AZPOST cases. For example, if an officer was reported to AZPOST in 2015 but not placed on the Brady until 2016, it means that officer’s misconduct was already recognized, investigated, and confirmed by a police agency but not yet added to the list.

The delays raise clear constitutional concerns, defense attorneys said. It could mean many defendants were not properly notified of misconduct that could have helped their cases.

“Prosecuting people isn’t a game,” Rundall said. “Putting people in prison isn’t a game. That’s why we have the constitution. That’s why we have Brady.”

Salazar was convicted of a drug paraphernalia charge.

The sole evidence against her was Officer Armour’s testimony claiming that she admitted a pipe found in someone else’s car was hers.

Salazar’s attorneys don’t believe the jury would have convicted her if they knew Armour had previously been punished for falsely arresting a woman, lying in reports, lying to his supervisor, and still booking the woman into jail after he was told to release her.

Chris Doran, another attorney for Salazar, raised issues about the blind trust placed on law enforcement to ensure Brady material like that is disclosed.

It’s a process that requires police to recognize misconduct, investigative it, sustain it, self-report it to the county attorney’s office, which then must place the officer on the Brady list, and turn over the evidence to the defense.

It’s a lot of steps without outside oversight.

“That’s absolutely right, and that’s the problem,” Doran said.

VOLUNTARY REPORTING, SELF-INVESTIGATION

Voluntary does not mean mandatory.

There is little oversight to ensure officers who belong on Brady lists actually get put on them.

The system is based on self-investigation by police agencies, which then self-report to county attorney’s offices. It also means no one knows how many additional officers are missing from the 1,400 names ABC15 discovered on county lists.

“The gatekeepers for this list are the same people who have an incentive to keep names off of the lists”

“That’s the problem with the system now,” Keenan said. “The gatekeepers for this list are the same people who have an incentive to keep names off of the lists.”

He continued, “If that’s the system we’re working with, we will probably never know the number of officers who should be disclosed.”

An abuse of force incident involving a Glendale police officer exposes how departments hold extraordinary power in determining what misconduct allegations ultimately get sustained and dismissed.

Before police tasered a man 11 times, including a final shock in the groin while handcuffed, one of the officers claimed he stopped the vehicle for a blinker violation.

However, surveillance video clearly shows the officer could not have seen a violation.

Despite the video evidence, four Glendale police supervisors overturned the findings of the internal investigation into the department’s top arrest leader, claiming they believed the officer’s word over the camera footage.

“If you don’t have a robust internal affairs investigation, or you have one that doesn’t sustain the allegations, or figures out a way to sort of sweep it under the rug, that information that may never even make it to the county attorney’s office, which means that officer will never get put on the Brady list,” Keenan said.

However, ironically, the lack of oversight and reliance on self-investigation means the system can break both ways.

Police departments can use internal investigations and the Brady list to retaliate against officers who blow the whistle.

“I’ll be the first to tell you that most people on the Brady list deserve to be there,” said Phil Roberts, a retired Phoenix police sergeant. “My reason why I’m on the Brady list is because there are a percentage of officers who are on there for retaliatory reasons.”

Roberts was placed on the Brady list after exposing Phoenix’s grossly inflated ransom kidnapping statistics, which were used to get millions of dollars in federal grants.

Instead of owning up to their own lie, the department opened a wide-reaching internal investigation into Roberts and accused him of dishonestly.

Phoenix sustained multiple allegations against Roberts and fired him.

But Roberts sued and eventually won his job back. Upon his return, he discovered Phoenix had him placed on the Brady list.

“(It’s like) ah-ha, you’re on the Brady list,” Roberts said. “And I go, ‘Yeah, I am, and I can’t get off.’”

“if problematic officers are able to hide within departments and not (held accountable), that destroys the trust between the public and their police.”

Over the past several years, a coalition of police unions have tried to get lawmakers to add uniformity to the Brady list system and add an appeal process.

In 2020, the unions co-wrote House Bill 2114, which stalled in session due to COVID-19.

“The Brady list has been weaponized. It has been turned into something that it is not,” said Sean Mattson, a union leader during a legislative hearing.

He also said the lack of uniformity and standards has caused some counties to just “wing it.”

While some of the unions’ concerns are legitimate, defense attorneys worried about other provisions in their initial bill, including a move that would have made Brady lists exempt from public records.

Also, the appeals process could drag out and delay important information from reaching a defendant.

“It’s unconstitutional,” Armanda Nava, a defense attorney, testified before lawmakers. “It would jeopardize the entire trial process as we know it… If we delay that, then we risk people getting convicted of crimes that they did not actually commit. And we also risk having convictions overturned when this information is disclosed.”

The bottom line: The broken system affects everyone, including officers.

“For good cops, their job is harder when the public doesn’t trust them,” Keenan said. “And if problematic officers are able to hide within departments and not (held accountable), that destroys the trust between the public and their police.”

Editor’s note: Over the next week, ABC15’s “Full Disclosure” investigation continues with four additional reports and a 30-minute news special on August 13. Complete coverage can be found here.

Contact ABC15 Investigator Dave Biscobing at dave@abc15.com.