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How can Arizona better track problematic law enforcement officers?

BRADY LIST PIC 1
Posted at 11:27 AM, Aug 21, 2020
and last updated 2020-08-21 22:36:28-04

In the wake of an ABC15 investigation into Arizona’s scattered and broken system for tracking “Brady” list officers, several county attorneys, opposing candidates, and state lawmakers are offering fixes.

The proposed solutions mostly focused on increasing transparency and improving gaps in oversight.

All of the following seven public officials who spoke to ABC15 agreed the system needs to be improved, but in varying degrees: Maricopa County Attorney Allister Adel, her democratic opponent Julie Gunnigle, Pinal County Attorney Kent Volkmer, incoming Pima County Attorney Laura Conover, State Rep. John Kavanagh, State Rep. Reginald Bolding, and state police board executive director Matt Giordano.

Here’s a breakdown of the key problems ABC15 uncovered and how the officials responded.

NO STATEWIDE LIST, STANDARDS

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.

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 them publicly.

In response to this issue, current county attorneys Adel and Volkmer both said an official state coalition of county attorneys and prosecutors have been working to develop a statewide list.

However, the Arizona Prosecuting Attorney’s Advisory Council (APAAC) has been promising a state list for at least two years.

“I’ve been working with the 14 other county attorneys. We will have the ability for the public to look up an officer statewide. And we’ve been working on that since I started,” Adel told ABC15 reporter Courtney Holmes in a separate interview. Adel initially chose to only partially answer some of ABC15’s questions about the Brady list in writing.

APAAC’s work to develop a statewide list predates Adel’s tenure, which began less than a year ago when she took over after Bill Montgomery vacated the position for a state supreme court seat.

The council’s list also may not be comprehensive — participation by counties is not mandatory.

Earlier this month, APAAC administrators could not provide ABC15 with an estimate if or when a statewide Brady list would finally be released.

Pinal County Kent Volkmer also touted APAAC’s work.

“Arizona is the first from an executive collection of prosecutors saying, look there needs to be a statewide list,” he said. “We are the first group of prosecutors. So, I do think we should get a little bit of credit for that because nobody else has taken that step.”

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 official (1400) on a county Brady list, current as of mid-2019.

The delay in producing a statewide list doesn’t make sense to Laura Conover, a democrat who won her primary and is unopposed in the general election for Pima County Attorney.

“I think that’s a fair question," Conover said. “This isn’t complicated. It doesn’t need to be necessarily. County attorneys can simply collect the list and forward it on.”

Gunnigle agreed.

“This is something that should be done years ago,” the candidate for Maricopa County Attorney said. “This is why the public and the community tend not to trust these offices. This should be made a priority to have a true commitment to equal justice.”

Gunnigle and Conover also both stated they would look at “no-call” lists, which indicate officers that prosecutors refuse to let testify in court.

Adel would not commit to instituting a no-call list.

VOLUNTARY REPORTING, SELF-INVESTIGATION

There is no requirement for police and prosecutors to report Brady-level misconduct to the Arizona Peace Officers Standard and Training Board (AZPOST), which is the state agency that licenses officers.

ABC15 found at least 400 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.

Adel did not address these issues in a written response to ABC15.

Volkmer stopped short of wanting mandatory reporting to the board. He said he believes some Brady cases are for minor issues.

“For egregious actions, absolutely I’m supportive,” he said.

If elected, Gunnigle promised to fill in the gap when police fail to send integrity violations to the AZPOST.

“Absolutely,” she said. “And that’s one of the things I’m willing to commit to is those referrals when the prosecutors see them.”

The next Pima County Attorney promised her administration will do the same.

“There should be nothing stopping the county attorney’s office from going to AZPOST with a concern, especially if the department’s not handling it themselves,” Conover said.

Volkmer stopped short of wanting mandatory reporting to the board.

AZPOST Executive Director Matt Giordano told ABC15 that his board should review all Brady-level misconduct.

“I would think so, yes,” Giordano said, when asked if he would like to see every Brady case. “I would. There are nuances in every Brady case. But I would think every Brady case would warrant at least a cursory overview by the AZPOST board.”

He added, “An integrity violation is paramount to the police profession and should come to AZPOST for the board to have the ability to look at that person’s certification.”

Prosecutors and AZPOST said further requirements to ensure reporting would likely need to be addressed by state lawmakers.

Rep. Reginald Bolding, D-Laveen, plans to introduce legislation that would make many of the Brady reporting and disclosure problems moot.

“I 100 percent plan on introducing legislation that will ensure that there is a peace officers’ database for disciplinary actions,” Bolding said. “The public deserves to know that. The public deserves to know who’s patrolling the street. And these agencies need to know who they’re hiring.”

The database would include all sustained discipline for Arizona police officers.

Bolding has proposed similar bills in recent years.

But they were met with strong resistance from lobbyists for police unions and Republican lawmakers.

“We do it for our teachers. We do it for our doctors. We do it for our lawyers. There are so many professionals where we do it,” Bolding said. “So why shouldn’t we do it for our law enforcement officers?”

Rep. John Kavanagh, R-Fountain Hills, doesn’t agree with Bolding.

But the long-time legislator does see separate problems with Brady lists.

Kavanagh, a former cop in New York who believes Brady lists should not be public record, would like to see an independent panel determine placement.

“There’s a lot of questions about how they put these lists together and the due process procedures for cops,” he said. “That creates some real unfairness.”

ABC15 discovered there have been cases where police departments are accused of placing whistleblowers on Brady lists as retaliation.

Gunnigle and Conover agreed that an independent unit might be needed.

“There is an inherent conflict of interest between prosecutors and police,” Gunnigle said.

Conover said, “I don’t want to trade one due process problem for another.”

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.

While some of the unions’ concerns are legitimate, defense attorneys worry 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.

Maricopa County and Pinal County both currently use an internal committee to review Brady placements.

Volkmer said while permanent placements are weighed, they still track officers on a temporary list to ensure disclosure.

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