The San Francisco Police Department will begin tracking the records of officers who have histories of misconduct or other red flags so the information can be disclosed to the district attorney if the officer is called to testify in a criminal trial.
Chief George Gascón announced the new protocol Aug. 20 in response to revelations in the wake of the crime lab scandal that San Francisco District Attorney Kamala Harris had failed to comply fully with a constitutional obligation to provide criminal defense attorneys with the misconduct records, which the defense could then seek to have admitted as evidence to undermine a witness' credibility.
Harris' office has to rely on police to determine whether any problems lurk in a police witness' background, so the hiccup in compliance was blamed on weak communication between the two departments.
But there's a big lingering question Gascón hasn't directly addressed: the research will almost certainly turn up information that ought to lead to officer discipline, and in some cases to cops losing their jobs. How, exactly, will the department handle that?
Speaking at a press conference, Gascón said he'd worked closely with the DA's office and San Francisco Police Officers Association (SF POA) to streamline the process to ensure compliance. "We believe this will be a model policy throughout the country," Gascón said, flanked by high-ranking members of the department as a line of television cameras pointed toward him.
Since the constitutional requirement stems from the 1963 case Brady v. Maryland, a bureau order issued by the chief refers to negative marks on an officer's personnel record that is determined to be admissible as evidence as "Brady material." It could be as simple as a 10-year-old D.U.I. charge, or a more serious offense involving an officer's conduct in the line of duty.
If an officer has been disciplined in the past for making false statements, for example, and that history is admitted as evidence in trial, the jury might be less inclined to take his or her word as gospel.
In the past, anytime the DA called on an officer to testify against a criminal defendant, the DA's office was supposed to contact the SFPD to request a background check for that officer to see if any Brady material had to be turned over to the defense. Under Gascón's new plan, SFPD will notify the DA in advance about officers who have potential "Brady material," without revealing just what the historic offense is. If the DA calls a police witness whose name has been flagged, the prosecutor will have to file a motion for the court to open the personnel file and determine if the past misconduct is relevant to the case at hand.
So how does an employee get his or her name flagged? The SFPD has assembled a powerful new body with a hokey-sounding name, "the Brady Committee," to determine whether an employee's name should be forwarded to the DA. Comprised of various heads of SFPD divisions plus a retired judge with a background in criminal law, the committee will review personnel backgrounds and give employees a chance to make their case as to why the dirt the department has on them shouldn't be counted as Brady material.
Not surprisingly, "the list" — as it's being called — won't be made available to the public, but at the Aug. 20 press conference, reporters wanted to know how many names were on it. Gascón indicated that it was too early to say. "There is unquestionably going to be a number that will start surfacing," he responded. "At this point, we do not have a list."
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