(The Center Square) — Washington lawmakers are looking to make it harder for police officers to take the stand in court or get rehired if their name is on a Brady list.
Brady lists are disclosures of members of law enforcement whose involvement in a case as an arresting officer, investigator, or witness is in question because of a history of dishonesty or misconduct.
The term dates back to a 1963 case, Brady v. Maryland, in which the U.S. Supreme Court ruled that prosecutors were duty bound to keep and produce such lists.
Following Brady v. Maryland, prosecutors must disclose evidence or information that would prove the innocence of the defendant or would enable the defense to more effectively impeach the credibility of government witnesses.
As noted by Washington state code 10.93.150, law enforcement agencies cannot punish an officer for being placed on a Brady list, but they may discipline an officer for the “underlying acts or omissions” for which their name was placed on such lists.
Brady laws vary by state and there are few federal standards for disclosure or record-keeping.
States like Washington have written their own laws strengthening prosecutorial conduct in maintaining Brady lists.
In Washington, law enforcement agencies must report to the Washington Association of Sheriffs and Police Chiefs all instances of deadly force no matter if it results in death, injury, or shots fired.
Of 213 fatal police shootings in the state between 2005 and 2014, only one saw an officer charged, according to a report by the Seattle Times. While officers can also be decertified for felony offenses, such instances are rare with just 40 a year, the Times reported in August.
Washington Sen. Jamie Peterson, D-Seattle, has a bill changing the way the state decertifies officers by limiting the number of law enforcement members who can hear a decertification case and diversify the state’s training commission board with more civilians.
Reporting potential impeachment disclosures when they occur is still voluntary. Officers can often remain on the force for some time and the details of their accusations, while available through public records requests, can yield little information.
Some counties like Spokane or Cowlitz can produce Brady lists with names and dates with no context. Obtaining further details can require weeks more of individual public records requests.
In August 2019, Corporal Scott Rasmussen of the Yakima County Department of Corrections received a sustained charge of excessive force for tasering a handcuffed inmate. He is still on staff today, Yakima county reported.
In 2001, Bellevue police officer Matt McDade was disciplined for inaccurate reporting after failing to process a recovered stolen vehicle as evidence. He still works there, the Bellevue Police Department confirmed.
Come January, Washington lawmakers will consider a bill that will help get a public database started.
Sponsored by Washington Sen. Manka Dhingra, D-Redmond, Senate Bill 5259 creates of a database for use of deadly force and requires law enforcement agencies to report Brady disclosures to the prosecuting attorney's office within 10 days of an incident occurring.
The creation of such a database is supported by the Washington Association of Sheriffs and Police Chiefs.
“We provide officers with a lot of power in our community when we are giving them a gun and asking them to uphold our laws,” Dhingra said. “And with that level of trust and responsibility that has to come an equal ability to hold them accountable.”
The idea is supported by the ACLU of Washington which said in a statement that such a database would better hold prosecutors accountable for ensuring their lists are up to date.
Brady lists, according to the civil rights nonprofit, are "good financial sense because they identify untrustworthy police officers and prevent them from wasting courtroom and appeal time on bad cases."
The database is designed to be shared and compared with the FBI statistics.
What such a database will look like is up to the Washington Association of Prosecuting Attorneys, according to Dhingra, in order to best determine whether it upholds due process rights and right to confrontation during trial.
As a former prosecuting attorney for King County, Dhingra says the bill will also help ensure law enforcement agencies and prosecuting attorneys are aware of an officer’s inclusion on a Brady list if they transfer elsewhere.
The bill is still a work in progress, Dhingra said, but it does include $92,000 for the state's Criminal Justice Training Commission to offer record-keeping training.
One planned amendment to the bill will hash out when and how officers can get off Brady lists, Dhingra said. Not included in the bill, the senator said, is a way for people to easily look up departments’ current staffing lists.
The bills tackle what Dhingra described as strengthening three specific levels of police accountability: reporting, prosecution, and termination.
Dhingra says her bill aims to create one more obstacle preventing officers from hiding misconduct from their peers or the public.
“I do believe that the vast majority of officers want to live up to high standards,” Dhingra said. “This bill is about really making sure we're highlighting and heavily elevating [those standards] and saying, ‘This is our expectation and if you cannot meet this bar,’ and if your behavior doesn't reach this level of ethics, then then we have a problem.”
A number of bills are expected to see introductions in 2021—from placing statewide restrictions on the use of tear gas and chokeholds to keeping officers from covering their badge numbers.
More than six months after protests against police brutality began in Seattle, time will tell if state lawmakers make the time to advance police accountability bills to the floor when it reconvenes on January 11.