By: Todd Mosser, Esq.
Police misconduct infects criminal investigations and taints the criminal justice process. As is well known, undoing a criminal conviction is a very rare occurrence, and convictions that are secured through the use of abusive and illegal police tactics leave those who are wrongfully convicted with an almost insurmountable
battle.
In recent years, the exposure of police misconduct has become more prevalent in Philadelphia, and the hope is that this trend of exposure will apply to other cities and counties. However, discovering that a police officer or detective has had documented instances of misconduct in his or her past does not automatically equate with an exoneration. In fact, when not litigated properly, newly discovered evidence of police misconduct will be ignored, and what was otherwise a valuable opportunity for the wrongly convicted will have been wasted and lost forever. It is therefore essential that you have a clear strategy for how to use this kind of evidence in your case.
If you discover that an officer or detective has a history of documented misconduct, you will need to answer the most basic question that often goes overlooked: “So, what?” Courts are required to assess why evidence of past police misconduct in a particular case actually matters. For example, if the allegation is that a detective illegally coerced a witness statement, then why does it matter if that detective had a DUI conviction three years prior? It doesn’t. You must be able to show that a particular officer or detective’s history of misconduct is relevant to a claim that you are currently advancing.
A clear example is when a detective has engaged in multiple instances of physical or verbal abuse against witnesses and suspects, and that abuse has resulted in false statements or confessions. That kind of past misconduct is relevant if your current claim is that a witness signed a false statement that implicated you, or that you were forced into signing a false confession. If you have in fact discovered relevant evidence of an officer or detective’s past misconduct, there are different ways to show that your trial was unfair.
In the context of newly discovered evidence of an officer or detective’s past misconduct, Brady v. Maryland, 373 US 83 (1963) serves as the guidepost for your path forward. Brady and its progeny require the District Attorney’s office to furnish your defense team with the information about all misconduct that any officer or detective on your case has in their background. So, if you went to trial or pleaded guilty and did not know that the lead detective on your case had documented allegations from other cases where a witness or suspect accused that detective of the same misconduct as what happened in your case, you may have a successful Brady claim.
For a Brady claim, you must establish that (i) the government was in possession of this information; (ii) kept it from you; and (iii) that it matters. The first two points are usually never in dispute. The third point is where cases are won or lost. “It matters.” This is what is known as the “materiality” standard under Brady. The most commonly understood definition of “materiality” is that the new evidence causes the judge to have no faith in the accuracy of your conviction. For example, Defendants who claim that their confession was false and wrongfully coerced are rarely believed by juries.
Similarly, witnesses who recant their signed police statements are rarely believed by juries. It is hard for any layperson or average juror to conceive that an officer or detective would coerce false statements out of people. On the other hand, if that same juror was provided with evidence that the same detective has engaged in that same behavior before, then your argument is more likely to be accepted by that juror, and as such, a different outcome could have happened if the defense had this evidence to present. This kind of materiality argument requires the judge to assess all the evidence against you, in combination with your new evidence, to decide whether your conviction is proper.
There is another way to satisfy the “it matters” test. The cases that followed Brady, including cases in Pennsylvania, also recognize that “materiality” can be satisfied if a defendant can show that the preparation of his defense, or his defense strategy, would have been different had he been in possession of the withheld evidence. For example, even though a witness in your case is claiming that he or she was beaten or coerced into signing a false statement, you and your lawyer may choose to not pursue that argument because you are unaware of this detective’s documented history of misconduct and thus cannot prove the allegation.
On the other hand, if the District Attorney’s Office had abided by its duty to disclose this history of misconduct to your defense team, you and your lawyer would have pursued the misconduct strategy. Thus, since the failure to disclose this evidence affected the presentation of your defense, the evidence is “material.”
In sum, simply uncovering evidence that an officer or detective has a history of misconduct is not sufficient to set aside your conviction. You must convince a judge that this evidence “matters,” either because the new evidence would have resulted in a different out come at your trial, or because you can show that your strategy in preparing and presenting your defense was affected by the withheld information. In any case, when it comes to a Brady claim, considerable time and effort will be required to show the judge that “it matters.”
