As police conduct comes under increasing public scrutiny, the pressure increases to make sure cops accused of misconduct, especially of lying, are kept from perverting the criminal justice system by testifying in the state’s courtrooms.
Prosecutors are supposed to tell defense attorneys about any police officers they call to the witness stand who have been accused or convicted of misconduct, lying under oath, filing false reports, or anything else that would cast doubt on their testimony. Prosecutors have sometimes called them “do-not-call” lists — also often called “Brady Lists,” after the 1963 Supreme Court decision that, among other things, instructed prosecutors to make such disclosures about cops who might be untrustworthy witnesses.
While the legal doctrine is decades old, its implementation today remains contentious.
Just last month, in a case involving grand jury testimony by two Fall River police officers, the state’s Supreme Judicial Court reiterated the rule that any untrustworthy police officer testifying in a case should be known to all parties.
The court also used the occasion of that case to refine the rule. In a decision released shortly before his death last month, Chief Justice Ralph Gants wrote, “We conclude that where a prosecutor determines . . . that a police officer lied to conceal the unlawful use of excessive force, whether by him- or herself or another officer, or lied about a defendant’s conduct and thereby allowed a false or inflated criminal charge to be prosecuted,” the prosecutor is obliged to disclose that information to the defense “in any criminal case where the officer is a potential witness or prepared a report in the criminal investigation.”
But the court then took the issue one step further, noting, “We do not possess the authority to require the Attorney General and every district attorney in this Commonwealth to promulgate a comparable policy, but we strongly recommend that they do.” By which they meant prosecutors ought to be keeping lists of compromised police officers.
The court’s “recommendation” was clear. The response, well, not so much.
The office of Attorney General Maura Healey disclosed a list to the Globe editorial board last week of just six names — five members of the Lowell Police Department, who last year were the subject of an internal affairs investigation in the wake of a botched drug prosecution, and a former member of the Westport police.
A spokeswoman for the attorney general explained that because the office uses largely civilian investigators and State Police assigned to the office, that “reduces the breadth of law enforcement members the office utilizes as witnesses in cases.”
Late last month, Suffolk County District Attorney Rachael Rollins and Berkshire County District Attorney Andrea Harrington belatedly joined that too-small club of prosecutors who keep such lists and make them publicly available. Both were responding to public records requests by the Globe and WBUR. Middlesex DA Marian Ryan and Norfolk DA Michael Morrissey were on board with publicly available Brady lists well before the SJC decision.
Rollins’s recently released database contained a mere 136 names, including those of 70 State Police troopers, many of them implicated in the recent overtime scandal, and more than 50 Boston police officers. Many on the list had already retired or have been placed on leave.
Allison S. Cartwright of the Roxbury Defenders Office, a member of Boston’s Police Reform Task Force, applauded Rollins’s initial effort at a recent public task force meeting but warned, “It’s only the tip of the iceberg.” She expressed the hope that it would soon be expanded.
In fact, a database compiled by the Globe during its own two-month investigation of internal affairs reports found dozens of other names not on Rollins’s list, touching off yet another dispute between the DA and the BPD, which she now blames for not being forthcoming with her.
“They have not flat-out said no,” Rollins told the Globe. “But they have not worked to voluntarily give us much of anything.”
A BPD spokesman has denied the accusation — and round and round they go.
There are also at last count five other district attorneys who keep no lists at all — the SJC’s advice notwithstanding.
Of course, Brady lists could become a quaint relic of the past if the Massachusetts Legislature passed a meaningful version of police reform that would include a central — and publicly accessible — database of all police officers licensed under the proposed new system and complaints lodged against them.
Crooked cops, those who lie under oath, or lie to protect each other do damage to the entire criminal justice system. No honest police officer should want to protect those who sully the badge, and no honest prosecutor would want such flawed characters anywhere near the witness stand.
The long-stalled police reform bill on Beacon Hill can set those protections in motion. It must become a reality.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.