The Brady/Giglio cases may have happened over 50 years ago, but until recently, defense attorneys and prosecutors made little of the impact those decisions could have on criminal trials. However, because those decisions play such a vital role in the prosecution and defense of criminal cases, they also play a part in determining the ability of police officers to perform their jobs.
For those who are not familiar with the cases, Brady v. Maryland and Giglio v. United States were decisions that reinforced the prosecution’s duty to turn over information beneficial to defendants in criminal cases, and determined that disciplinary actions against a police officer could in fact be beneficial to defendants in a criminal case. These cases brought the necessity of officer truthfulness to light, and not only made an officer’s honesty an aspiration, but a minimum qualification for police work. This has led to many jurisdictions creating what is called a “Brady List,” or a list of officers who may have issues testifying in court based on past behavior or untruthfulness. The Wiley Law Office has been advising and training law enforcement and Minnesota HR and labor professionals on the impact of these decisions, and their labor implications, for over ten years.
While there have been many arbitration decisions revolving around an officer’s truthfulness during investigations, there have only been about a dozen awards regarding a prosecutor’s placement of an officer on her or his Brady List. Arbitrator Toenges’s decision in City of Cloquet and Teamsters, Local 346 is perhaps the most deferential to a prosecutor’s decision to place an employee on a Brady list.
In that case, the employer attempted to terminate the employment of a 22-year officer who had been promoted to the rank of Detective Sergeant. The employer did so after it was determined by the local City Attorney acting as a prosecutor that the grievant would be unable to testify in court based on three previous disciplinary incidents – the latest occurring in July of 2017. The County Attorney testified that he would not prosecute any case that required the grievant to testify, based on his past disciplinary history. This case is unique, in that, the grievant was not terminated for any specific instance of misconduct, but rather, the unchallengeable decision by a neutral third party prosecutor that the officer could not perform an essential function of his or her position – testifying in court.
In what may be a surprise to many in the labor law field, Arbitrator Toenges upheld the termination of the grievant. In his findings, the arbitrator found that the grievant did good police work and was experienced in high level crime situations. Despite that, the grievant’s “inability to perform an essential duty of a police officer to testify in court” led to the City Attorney being unable “to prosecute in situations where the Grievant would be a witness.” And even though the grievant’s previous misconduct was lower-level discipline, the arbitrator put determinative weight on the statements of prosecuting attorneys who made decisions that were unchallengeable to the grievants.
Also helping the employer was the fact that the police department had only 20 police officers, two of which were detectives, including the grievant. The arbitrator found that the employer would not be able to just put the grievant at a desk for the remainder of his career, due to the fact that the City only had a limited number of officers to perform a 24-hour per day, 365-day per year job.
This is a monumental decision by a very respected arbitrator. While individual arbitration decisions are not precedent-setting for other employers across the state, it certainly is persuasive. An officer’s ability to truthfully testify has always been important. This is one of the first cases to say that the independent decision by a prosecutor not to prosecute cases in which an officer might testify is sufficient to warrant the termination of an officer. Of course, there are other awards out there that have determined that placement on a Brady list, in and of itself, is not independently sufficient to support termination—the employer must still prove just cause under the applicable collective bargaining agreement. Stay tuned, as there will surely be many more cases of this ilk for years to come.
If you or your organization needs assistance with the discipline of employees, or training on Brady/Giglio, and its impact on law enforcement, contact the Wiley Law Office, for legal advice that works.