The San Francisco Police Department’s newly implemented “Brady” protocol for releasing an officer’s history of misconduct in court cases was widely applauded by the city’s Police Commission tonight, though concerns remained about how many officers might be impacted.
The number could affect any current or prior court cases in which officers or civilian employees with disciplinary problems or criminal convictions could be or have been called to testify.
It could also affect whether officers identified under the protocol are pulled off the streets altogether because their testimony could damage a prosecution.
The Police Department began implementing the Brady protocol in August as part of a series of reforms made in the wake of the department’s drug lab scandal.
According to precedent set by a 1963 U.S. Supreme Court case, Brady v. Maryland, prosecutors are required to turn over potentially exculpatory evidence–including evidence that might call into question the credibility of witnesses–to defense attorneys.
The Police Department was vague tonight when responding to questions about how many officers the Brady protocol could apply to.
Cmdr. Daniel Mahoney told commissioners there were “between 10 and 50, that we’ve looked at.”
Of those, four cases have been brought to a trial judge to review, and of those, only one department employee’s background has been deemed suitable by the judge to present to a jury, he said.
Police Chief George Gascon said in reference to a number as high as 135 officers that has been “floated” in the media, “I don’t know where that number came [from].” He said the number was uncertain at this time and will “evolve” as officers come and go in the department and new cases arise.
Gascon said he hoped to have an exact, current number by the end of October, when the department completes its review.
Commissioner Jim Hammer noted the issue was important.
“We have to show our bad cards as well as our good cards,” Hammer said.
“At some point it’s going to impact our ability to deploy officers on the street,” he added.
Gascon later said outside the hearing that the number would be released publicly, but that the names of the officers are confidential. He also said that no officers identified under the new protocol have been taken off the street.
A group of women attending tonight’s meeting told the commission they were concerned about Mission District officers being pulled from their beats at a Bernal Heights public housing project, where they said shootings are becoming common.
“We’re in a full-blown race war,” one woman lamented. She said she worried that officers known and trusted by the community were being replaced for disciplinary reasons.
San Francisco is one of the first jurisdictions in California to develop a Brady protocol, which was directly prompted by the drug lab investigation.
Gascon ordered the drug lab closed in March after allegations a former criminalist, Deborah Madden, took small amounts of cocaine from evidence.
It was later revealed that her criminal background, a prior misdemeanor conviction for domestic violence, had not been disclosed to the district attorney’s office. Madden had testified in hundreds of court cases over her nearly 30-year career.
The district attorney’s office subsequently developed its own Brady policy.
Mahoney said in his presentation to the commission tonight that the Police Department’s policy had been developed over four months through discussions with the district attorney’s office and police unions.
He said the protocol strikes a “very complicated balance” between the constitutional rights of defendants to a fair trial and Police Department employees’ rights to confidentiality.
“This is considered a model protocol by the stakeholders,” Mahoney said.
Several commissioners agreed with that sentiment.
“It’s a comprehensive document,” Commissioner Thomas Mazzucco said. “It’s well done.”
Commissioner Carol Kingsley said she too was “impressed.”
“It seemed reasonable and fair and clear” and covered all the bases, she said.
“What remains to be seen is how much litigation this order will draw,” Commissioner Petra DeJesus said.
Hammer also agreed it was a “model” document.
He and Commissioner Angela Chan, though, also expressed concern that the San Francisco Public Defender’s Office was not consulted in developing the policy.
“We didn’t see that they were a stakeholder in the process,” Mahoney said.
Hammer said he was “surprised” by that.
In the end, the commissioners decided that as the policy proceeds, they will work in parallel to develop and tailor it for an eventual addition to the Police Department’s general order.
Some commissioners expressed a desire for more Police Commission oversight over the policy–such as commission approval of the retired judge that sits on the department’s Brady committee in an advisory role, or regular reporting to the commission on how the policy is proceeding.
“Now we have a chance to say…we can reject it, which I doubt will happen…but to tweak it, and memorialize it,” Commission President Joe Marshall said outside the hearing.
That process can take months, he said.
