Jacksonville’s prosecutors have dumped dozens of criminal cases that relied on the testimony of recently arrested police officers, the result of a new policy that tracks officers who might be problematic witnesses in court.
The policy shift means that prosecutors will be required to notify defense attorneys when they are handling cases staked to the credibility of a listed police officer. The Brady/Giglio list takes its name from two Supreme Court decisions influencing what evidence prosecutors must disclose to defense attorneys.
The State Attorney’s Office illustrated no lofty goals in enacting the list, saying it was simply a “tool to ensure that we are legally complying with our discovery obligations.” Prosecutors will run into no pushback from the Jacksonville Sheriff’s Office, which is supportive of the practice.
“I whole heartedly endorse State Attorney Nelson’s efforts to comply with court mandates and decisions regarding Brady/Gilgio requirements, and of course, will support her efforts,” Sheriff Mike Williams said in a statement.
Not many prosecutors’ offices in Florida keep a formal Brady list, according to Gainesville’s state attorney, Bill Cervone. But that might be about to change. Cervone said he is getting “closer and closer by the day” to adopting the practice.
The list makes it easier to disclose evidence, an important function for prosecutors, Cervone said. It also represents a show of good faith to the public, he added. Cervone said that law enforcement officers are getting arrested more frequently. An Alachua County Sheriff’s Office deputy was arrested in Gainesville on Wednesday, he pointed out.
The Gainesville state attorney attributed the rise in arrests of officers to police departments opting to file criminal charges instead of dealing with the matters internally, as they might have in the past. The change has left Cervone with a question.
“How do I send a message to law enforcement officers in my jurisdiction that I’ve had enough?” Cervone said. “You’re not immune from the same behavior you’re charging other people with.”
Prosecutors in Florida haven’t traditionally kept Brady lists.
Bob Dekle, a veteran former prosecutor and law professor emeritus at the University of Florida, said that it has long been “standard practice” for state attorneys to operate without a list of problematic police officers.
“But quite frankly,” Dekle added, “standard practice isn’t best practice.”
A failure to track police officers with legal issues, the professor said, leads to court challenges, which “tend to come to the surface at the most inopportune time: post-conviction.”
“Information comes out and [defense attorneys] say, ‘Well, why didn’t you tell me about this?’” Dekle said. “And ‘I didn’t know’ won’t cut it.”
A Brady list can both help and hinder prosecutors, Dekle cautioned. He described it as a “dirt database,” one that is easily swept up in Florida’s expansive public records laws. Media outlets and defense attorneys can then get a hold of the information and use it to blow even minor infractions out of proportion, he said.
“It can insulate you against post-conviction issues,” Dekle said, “but it has the potential for being used to keep you from getting the conviction in the first place.”
Prosecutors in Jacksonville dropped 41 cases after three local detectives were arrested in February. The Sheriff’s Office said they disposed of beer cans they had been using as props during an undercover operation that ended in a police shooting.
The 41 dropped cases included 78 total counts: 40 of them cocaine-related, 14 cannabis-related, two methamphetamine-related and three that were the result of miscellaneous drug charges.
Five counts of resisting a law enforcement officer without violence were dropped. Three battery or assault charges, three gun-related charges (not including armed possession charges), one trespassing charge, one prostitution charge, and four charges relating to a car accident were dropped as well.
In the 41 cases, there were 39 defendants — 30 black and nine white. The arrests occurred mostly in December and January, but included offenses dating back as far as March 2012.
In addition to the three detectives, local prosecutors have five other police officers on their Brady list.
They include Tim James, who was recently charged with beating a handcuffed teenager; Tommy Bailey, who was charged with aggravated assault with a deadly weapon in Clay County, and Frank Holtsman, who was charged with defrauding the Sheriff’s Office by falsely reporting work hours.
Outside Jacksonville, the list includes Officer S.T. Ventura, a Clay County Sheriff’s Office deputy arrested for misdemeanor battery on June 22 while off-duty; and J.C. Burns, a Florida Highway Patrolman that is under investigation for unknown reasons.
The State Attorney’s Office said that it is still investigating cases involving Officer James.
Prosecutors here did not keep a Brady list under former State Attorney Angela Corey. They said so in response to a 2014 public records request; and no evidence of one was found by the current adminstration, led by State Attorney Melissa Nelson.
Dekle, the law professor, described the decision on whether or not to keep such a list as a “judgment call.”
“Reasonable people can come down on both sides of the issue,” he said.
Cervone, the Gainesville state attorney who serves as Florida’s representative to a national prosecutors’ association, said Nelson was ahead of the curve. He anticipated that the practice of keeping a Brady list would become more common around the state.
“[Nelson] is reflective, I think, of general trends on the national scale,” Cervone said.
To that end, the State Attorney’s Office under Nelson has also started using Brady/Giglio “checklists,” which will help prosecutors double check that they are properly disclosing evidence to defense attorneys.
John Hollway, a University of Pennsylvania law professor who has advised Nelson on preventing wrongful convictions, said the checklists are a useful way for the State Attorney’s Office to ensure it’s complying with the rules of discovery in criminal cases.
“It’s a good practice for responsible prosecutors to follow to observe complex rules about potentially exculpatory information that the defense is entitled to,” Hollway said.
Former Jacksonville State Attorney Harry Shorstein lauded Nelson’s decision to start keeping a Brady list.
Shorstein, who was known to clash with the Sheriff’s Office during his tenure from 1992 to 2008, said Nelson’s willingness to make such a change speaks to her ability to see past the next election.
“She’s bringing back the politics of ethics and professionalism, and sometimes that’s not a politically advantageous for a prosecutor,” Shorstein said. “But I’ve seen nothing that indicates it’s affecting her decision to do the right thing.”
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