When St. Louis City Circuit Attorney Kim Gardner said back in August that she would no longer prosecute cases submitted by 28 city cops because she thinks those officers are liars, you would have thought an alien spacecraft had just landed on the Arch grounds.
Police Chief John Hayden said he was “surprised” to receive such a list and said that “there was no indication the list was property vetted.” The St. Louis Police Officers Association’s Jeff Roorda demanded “an explanation be given to the police department and these officers as to how…they get off this list.” Public Safety Director Jimmie Edwards expressed mystification at the list.
This week, 55 current and former cops and prosecutors, including the former solicitor general of the United States, praised Gardner’s “exclusion list” and said more prosecutors nationwide need to make similar lists to exclude police officers suspected of lying from presenting cases or appearing as witnesses.
Tucson, Arizona Police Chief Chris Magnus wrote that these “lists help maintain the reputation of our profession, and our communities are safer when individuals trust law enforcement and have faith in the integrity of the justice system.”
Former Federal prosecutor Miriam Krinsky heads a non-profit justice reform group called Fair and Just Prosecution, which works with newly-elected reform prosecutors around the country. Krinsky said lists like Gardner’s are necessary, “allowing law enforcement officers with known credibility issues to influence charging decisions or reach the witness stand would be a dereliction of duty.”
The reason for this support for Gardner is that the “exclusion list” that shocked and dismayed the chief, Public Safety director, and the cop union is actually a pretty common tool of prosecutors all over the United States. It’s called a Brady List.
In 1958, John Brady and a friend were charged with murder of a third man. The 25-year old Brady said he was the wheelman for a bank job the three had planned, that he was involved, but that his friend did the actual killing. The friend admitted as much. But his statement was kept from defense attorney’s during Brady’s trial. Brady was sentenced to death.
In 1963, The U.S. Supreme Court heard his case, Brady vs Maryland. The court ruled Brady should be resentenced because of the withheld statement. He got life, was eventually paroled, moved to Florida, became a truck driver, and never got so much as a parking ticket the rest of his life.
But the court did more than save John Brady’s life. It also ruled that all information from prosecutors and cops has to be turned over to defense attorneys, especially evidence that could help prove a defendant’s innocence. That evidence also has to include whether any of the police officers involved in the case have ever been caught lying before.
Seth Waxman, solicitor general under President Clinton from 1997 to 2001, wrote in support of Gardner’s creation of a Brady List of St. Louis officers: “The Brady obligation dates back to 1963, is well-established case law, and is non-negotiable.”
All of this makes the shock and amazement of St. Louis police officials and the police union, well, shocking and amazing. From Texas to Washington State, Colorado to California, Brady Lists have been used by prosecutors for decades, and they’re no mystery to law enforcement.
PoliceOne.com is probably the premier online law enforcement resource, offering everything from newsletters and training videos to help with grant writing and secure information message boards for cops in departments scattered across the country. In November, 2016, PoliceOne’s liability and litigation column was all about the consequences of officers who lie ending up on a Brady List. Its headline was: “Don’t destroy your career: The Brady List and the ruinous impact of a lie.”
The column made clear what city police officials and the city cop union should have known: that any officer caught lying in any circumstance, including during internal disciplinary procedures, can end up on a Brady List, meaning they won’t be called as witnesses, any cases they bring won’t be prosecuted, and their career is pretty much in tatters.
We don’t know the names of any of the 28 city cops on Gardner’s Brady List. We don’t know under what circumstances they were allegedly caught lying. The St. Louis police union’s Jeff Roorda called the list “dangerous” and claimed some officers ended up on it for pleading their Fifth Amendment right against self-incrimination while being interviewed by Gardner’s prosecutors.
No matter why her office thinks the 28 officers aren’t credible, around a dozen felony cases involving those cops have been dismissed by her office. No case that has any of those officer’s names on it will be prosecuted. And according to the nationwide coalition of police and prosecutors who came to Gardner’s defense this week, that’s just the way it should be.
City police have said that it’s already tough enough controlling crime in the city with the planet’s 13th highest murder rate and that a department stretched thin for resources and short 145 officers can’t afford to have cases built by 28 police officers tossed out just because those cops might have lied about something, somewhere in the past.
Even Missouri Governor Mike Parson, himself a former rural sheriff, has weighed in, saying drawing up a Brady List is “beyond the scope” of Gardner’s job.
Ahem. The Brady Exclusion and the creation of Brady Lists have been the law since before the circuit attorney was born. It’s not like Kim Gardner awoke last year and decided to cripple the St. Louis Metropolitan Police Department and mount a George Soros-funded jihad against law and order. If 28 city officers’ words can’t be trusted, and they’ve been accused of lying in the past, the law is pretty clear about what happens. Any case they’ve touched is poisoned.
Gardner’s list got nationwide support this week not because it’s unusual, but because it’s so common. The unusual part has been the police and police union reaction. It’s almost like they’re saying if you eliminate liars, then no cases will ever be prosecuted.
Charles Jaco is a journalist, author, and activist. Follow him on Twitter at @charlesjaco1.