by the ACLU – VT
Elected prosecutors have a major role to play in holding police accountable for misconduct. That can include pressing criminal charges when police abuse their power and violate civil rights – something prosecutors rarely elect to do.
What many people don’t know is that in addition, prosecutors are constitutionally required to disclose the existence of dishonest or biased cops to criminal defendants through something called a “Brady disclosure.”
Nonetheless, a recent ACLU investigation shows that Brady disclosures are still rare or non-existent in some Vermont prosecutors’ offices. Furthermore, Vermont prosecutors do not maintain statewide Brady lists and do not have a system to easily identify and report officers with credibility issues, while all but one lack written policies or guidelines.
All of this has serious implications, not only for prosecutors’ own constitutional obligations, but also for police accountability, community well-being, and faith in the judicial system more broadly.
How do Brady disclosures work in Vermont?
By way of background, the 1963 U.S. Supreme Court case Brady v. Maryland and the line of cases that followed it established that when police officers commit acts that undermine their credibility – including bias, lying, and theft – prosecutors are obligated to disclose that information to defense counsel.
Since then, the courts have been clear: prosecutors have a constitutional obligation to uncover and disclose evidence that could help a defendant’s case, including an officer’s credibility issues, and must err on the side of disclosure.
Vermont criminal court rules also mandate that everyone acting on the government’s behalf in a criminal case, including police officers, has these same obligations. These requirements not only help prevent officers from hiding evidence, lying, or testifying despite credibility problems – they are a vital protection for the overall fairness of the criminal legal system.
To ensure they are satisfying these constitutional mandates, prosecutors’ offices across the nation have created “Brady lists” – lists of police officers whose credibility issues would likely undermine their testimony at trial. Brady lists are widely recognized as a best practice for protecting the integrity of the justice system.
In Vermont, there is currently no statewide policy governing Brady disclosures or statewide Brady list, and only one county prosecutor’s office (Chittenden County) maintains its own list. Instead, the general practice among state’s attorneys is to send Brady letters to their county’s criminal defense attorneys, noting that a particular police officer might have credibility issues. In some cases, where prosecutors believe an officer’s credibility issues will taint future cases, they may also send letters to the officer’s police department, noting that the officer’s cases will no longer be accepted for prosecution. At times, such a letter could be cause for termination.
Building off of VTDigger’s 2020 investigative series Tarnished Badge and due to the absence of an “official” statewide Brady list, the ACLU of Vermont in 2022 sent public record requests to every state’s attorney’s office, seeking relevant records and policies.
With the resulting information, we have created Vermont’s most up-to-date and comprehensive list of Vermont officers for whom Brady letters have been issued. In addition, we will maintain data on the number of Brady letters produced by each county’s state’s attorney. Additional findings of the investigation are detailed below.
We hope Vermonters will use this information to ask their county prosecutor about their role in and commitment to holding police accountable.
Consistent with VTDigger’s findings in 2020, the ACLU’s own investigation again raises questions about the adequacy of Vermont county prosecutors’ practices when it comes to disclosing the names of local police officers with potential credibility problems.
Specifically, while Brady was decided nearly 60 years ago, the results of the ACLU of Vermont’s investigation show that at least 42 of the 50 officers named in Brady letters – more than 80% – were named after January 1, 2019. Four state’s attorneys’ offices (Lamoille, Franklin, Grand Isle, and Orange) have evidently never issued a Brady letter.
Our investigation also confirmed that there is no system to track officers with credibility issues across county lines. This means officers with credibility issues can and do take new jobs with a department in another county without their Brady letter following them, letting them off the hook for past wrongdoing.
In response to our request for any policies relating to Brady requirements, only one state’s attorney’s office (Washington County) had a formal policy of disclosing Brady letters to defense counsel. And, when determining whether to issue a Brady letter, it appears that none of Vermont’s state’s attorneys actively seek police officers’ full record for lawsuits, prior arrests or criminal charges, employment records, in-court testimony, or similar documentation.
In the absence of clearer statewide policy, Vermont prosecutors appear to generate Brady letters solely by relying on information affirmatively volunteered by police agencies and officers in their county, or instances of police misconduct that receive media attention. This approach incentivizes individual officers and police departments to hide or shade the truth. Moreover, these practices do not meet prosecutors’ constitutional obligations under Brady to proactively investigate officer credibility problems.
Additionally, without a statewide policy, the Brady letters include varying levels of detail, and may not be sent at all, depending on the prosecutor.
In short, Vermont’s prosecutors do not appear to be upholding Brady’s requirements to actively seek out officer credibility issues and create systems that allow all prosecutors to quickly determine whether an officer has received a Brady letter in the past.
Why it matters
Beyond the constitutional problems, this failure of oversight has devastating impacts on the safety and well-being of Vermont communities.
In 2012, a judge expressed “grave concerns” that then-Shelburne police officer Jason Lawton had not told the whole truth on the witness stand, after he was contradicted by video evidence. Soon after, Lawton left Shelburne for the St. Albans Police Department. His new employer and the Franklin County State’s Attorney Office only learned about Lawton’s prior credibility issues from a reporter after Lawton was fired in 2019 from the St. Albans PD for assaulting a handcuffed woman (he later pleaded guilty to simple assault).
In another example, Bennington officers have been repeatedly accused of racially profiling defendants in justifying a drug investigation. Racial profiling shows an obvious level of bias that undermines these officers’ credibility in future proceedings. Despite a lawsuit and numerous complaints against the Bennington Police Department from community members, the Bennington County State’s Attorney has never issued a Brady letter for any officers in the Bennington Police Department and there is no evidence that the State’s Attorney has investigated those concerns.
And, in February of 2020, the Windham County State’s Attorney sent a letter to defense counsel noting that Bellows Falls police officer Joshua Paulette was placed on the New Hampshire Brady list nearly two years earlier. The letter included no other information, and there is no indication of any follow up or investigation into the underlying circumstances. Paulette later left the department for undisclosed reasons.
What happens now?
Based on our investigation, it seems clear that Vermont’s prosecutors lack meaningful regulations or procedures to investigate potential credibility problems; take no action to ensure that officers with credibility problems are known across state’s attorney offices; and take little or no affirmative steps to investigate, beyond relying on police to self-report credibility concerns. There is no statewide policy or guidance on how prosecutors should implement Brady-related requirements, and only one out of fourteen state’s attorney offices has a written policy on the topic. Meanwhile, the Legislature recently failed – again – to address this issue.
These are troubling shortcomings in Vermont’s system of police oversight with severe consequences for our communities and our system of justice. We and our partners will continue advocating for stronger police oversight and accountability measures, and we hope the information collected here will assist future policymakers, prosecutors, and their constituents to better meet Vermont’s constitutional obligations, improve our systems of police accountability, and enhance the fairness and credibility of our legal system.
Republished from the ACLU – VT website