Do we need a ‘Brady List’ here to track problem officers?

Fewer than half of Florida’s 20 state attorneys compile and maintain a “Brady List” – a collection of names of police officers, deputies and other law-enforcement personnel whose credibility issues could undermine the integrity of prosecutors’ cases.

Our circuit is among those that don’t.

The reason?

State Attorney Tom Bakkedahl, whose jurisdiction covers the four-county region that includes Indian River, said we don’t need such a list to identify and weed out cops that can’t be trusted.

He said the 19th Circuit’s counties are comparatively small, and that if a cop in any community has credibility issues, everyone will know it – especially other cops, prosecutors, defense attorneys and, sometimes, the news media.

“That kind of information gets around,” Bakkedahl said, referring to stories of cops with histories of lying under oath, falsifying reports, tampering with or fabricating evidence, coercing or intimidating witnesses, racism or other misconduct.

“So, if we’ve got a case where we have credibility issues with the officer, we’re not going to prosecute,” he added, “unless we have other independent verification of [the information] we got from the officer.”

Another reason a Brady List isn’t needed here, Bakkedahl said, is that Florida’s public-records law allows anyone, including defense attorneys, to request the personnel and Internal Affairs files of law enforcement officers.

“All that information is available,” he said. “All you have to do is make a public-records request. That’s not the case in some other states, but here in Florida, the public-records laws are very liberal.”

Just so you know: The term “Brady List” gets its name from Brady vs. Maryland, the 1963 U.S. Supreme Court decision requiring prosecutors to turn over all exculpatory evidence, including that which the defense may use to impeach witnesses.

Bakkedahl said criminal justice reform groups began pushing for Brady Lists in Florida seven years ago.

The lists that do exist are accessible via public-records requests.

Last summer, in fact, now-former Ninth Circuit State Attorney Aramis Ayala publicly released her office’s Brady List, which contained the names of more than three dozen law enforcement officers and other personnel in Orange and Osceola counties and the reasons they’re on it.

She added another 12 names in December before leaving office in January. According to Ayala’s policy, grounds for being placed on the list included dishonesty, criminal behavior, misconduct, abuse of authority, and indications of religious or racial bias.

Brady List critics, particularly the heads of police unions, say the lists unnecessarily and unfairly expose officers to public scrutiny and, in some cases, wreck careers.

They also argue that many of the allegations of dishonesty and untruthfulness force sheriffs, police chiefs and prosecutors to make subjective judgments regarding credibility.

Bakkedahl embraced those same concerns, though he said cops who can’t be trusted should be fired, and that cops who break the law should be prosecuted.

“If everyone knows these officers cannot be trusted, they’re of no use to us, so being on a Brady List is, effectively, a Scarlet Letter,” he said.” And that’s fine, as long as the listing is justified.

“But what’s the threshold?” he continued. “What behavior warrants being put on that list? If an assistant state attorney says he or she is somewhat uneasy with the officer’s credibility – or just isn’t comfortable with putting the officer on the witness stand – is that enough?

“There’s a presumption of innocence in our legal system, even for law enforcement officers,” he added. “So, unless someone comes up with specific guidelines, I don’t know how I’d go about putting people on that list.

“I know I’d be reluctant to ruin an officer’s career based on gut feelings and speculation.”
Vero Beach Police Chief David Currey agrees with Bakkedahl. “I don’t think there are enough issues in this area, fortunately, that present a need for that list,” he said. “When officers break the rules or behave badly, we address it. If something rises to the level of a crime, we bring in the State Attorney’s Office.

“We’re all about accountability.”

On the other side of the question, a prominent local defense lawyer refuted much of Bakkedahl’s argument and advocated for a Brady List in our circuit.

“Tom is right when he says word gets around about bad cops, but there are a lot of young lawyers who haven’t been here as long as we have and don’t have the same contacts,” said defense attorney Mike Kessler, a longtime Vero Beach resident who now lives in the Fort Pierce area.

“So, I don’t agree with his premise,” he added. “Everybody doesn’t know everybody here. If there’s a cop with credibility issues, not everyone is going to hear about it. Not everyone who needs to know will know it.

“But they would if there was a Brady List.”

Kessler also challenged Bakkedahl’s claim that Florida’s public-records law makes Brady Lists unnecessary, saying police sometimes resist turning over files relating to Internal Affairs investigations.

“If I request a cop’s record, I might not get his IA file,” Kessler said. “If the IA investigation is still open, you won’t get it. If the officer is cleared, you might not get it.

“I regularly make records requests, and half the time the requests are refused,” he added. “I’m told to get it through discovery, and that’s what I do. Sometimes, it’s a shell game.”

Kessler also scoffed at Bakkedahl’s contention that police misconduct can be handled in-house by sheriffs and police chiefs – and in public by prosecutors when that misconduct breaks the law.

“Cops don’t get charged with perjury,” Kessler said. “I’ve been here 36 years and I’m pretty good at my job, but I can’t recall a cop in this circuit getting charged with perjury.”

He said there are cops in our communities who continue to work in law enforcement despite their history of misconduct and other disciplinary issues.

Kessler agreed with Bakkedahl that some objective criteria need to be established for putting someone’s name on a Brady List, but said he believes the benefits of prosecutors and law enforcement bosses publicly holding employees accountable outweigh any harm that might be done to cops who can’t be trusted.

“What’s the remedy for somebody wrongly being put on the list? I don’t know,” Kessler said. “It can’t be based on just speculation or gut feelings, as Tom said. There needs to be guidelines that apply throughout the state, or even the country.

“I don’t know how we get there, but I don’t think having a Brady List harms anyone,” he added. “If police officers earn their way onto the list – if they put themselves there – then they get what they deserve.”

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