State: Prosecutors not handing over key material to defense attorneys

The failure to hand over Brady material could be lead to lawsuit, convictions overturned 

By: - July 20, 2022 6:00 am

Former Minneapolis police officer Justin Stetson stands guard over the Third Police Precinct on May 27, 2020, during protests of George Floyd’s killing. Photo by Chad Davis.

Hennepin County public defender Abigail Cerra was tapped to defend a man in 2013 after he had an altercation with a plain clothes Minneapolis Police Department officer, which led to four misdemeanor charges, including obstructing the legal process. 

Cerra tried to get any past discipline records against the officer, Sgt. William Palmer, who, coincidentally, was in charge of distributing MPD personnel records at the time. The city fought her, and Cerra never did get the disciplinary records. 

Months later, Palmer was reassigned in what the Star Tribune described as a shakeup at MPD. 

Cerra only found out what was in Palmer’s file when the Reformer published an investigative report on MPD’s disciplinary process. That’s when she learned that Palmer had previously been disciplined for deliberately injuring a passenger in his patrol car in 2002, leading to a suspension of 20 days. 

The disciplinary file would have been “hugely relevant” to her client’s case, Cerra said recently. 

If only she could’ve found a way to get it. 

“What am I gonna do — break into City Hall with a flashlight?” she asked. 

A recent Minnesota Department of Human Rights report about MPD indicates this wasn’t an isolated incident. Local prosecutors, the report alleges, do not turn over negative information about police officers that could be helpful to the defense, despite a constitutional requirement to do so. 

It’s called Brady material, named after a 1963 U.S. Supreme Court case called Brady v. Maryland in which the court ruled prosecutors must hand over evidence that’s favorable to the defense. 

For instance: Evidence that a police officer has lied in court or has a history of brutalizing citizens. 

Failure to produce Brady material is a leading cause of wrongful convictions nationwide. 

The MDHR report released in April said Minneapolis officials have not been turning over Brady material for police officers called as trial witnesses. 

City and county officials are aware of this “systemic failure,” the report said.

Cerra said this could lead to a class action lawsuit that could undo two years’ worth of convictions. If city and county officials were aware of the problem or intentionally withholding Brady material, that “kicks it up a notch,” she said.

“I think it’s huge,” Cerra said. “Now we’re in overturn-the-conviction territory.”

Chauvin and Brady

Former Minneapolis police officer Derek Chauvin, who murdered George Floyd, is an example: He was a witness in dozens of criminal cases, but no Brady material was released on him, even though he had been disciplined a couple of times, Cerra said. 

The Hennepin County Attorney’s Office did not answer questions about the report, referring the Reformer to information on its website about Brady issues. The site says police departments in the county are required to notify prosecutors when they have an officer with a possible Brady issue. If the officer is subpoenaed to testify at trial, the information is reviewed and disclosed to the defense if it’s “even potentially exculpatory, mitigating, or relevant to the witness’s credibility. (County attorneys prosecute felonies; city attorneys prosecute misdemeanors.)

City spokesman Casper Hill said prior to the release of the report, the criminal division of the City Attorney’s Office decided to hire a staff lawyer to handle Brady material, and the attorney started work early last month.

Prior to that, the city had “extensive processes for identifying potential Brady material,” and the work was shared by several attorneys, Hill said.

Minneapolis Council Member Robin Wonsley tried to budget money to create a Brady database, but city attorneys said they were already addressing the issue. Wonsley said the city needs to make sure cases aren’t jeopardized by putting cops like Chauvin on the stand. 

Bill Ward, former chief public defender for Hennepin County who is now state public defender, said he’s confident “some firm is looking into” litigation over the failure to produce Brady material.

When he worked as a defense attorney in Hennepin County, “People looked the other way” on Brady issues, he said.

“I do believe there’s got to be better oversight,” Ward said.

David Knutson, retired director of training for Minnesota public defenders, said he has no idea if a class action suit could be filed, but said the Minnesota Supreme Court is very reluctant to overturn convictions.

Knutson said when he was a Hennepin County public defender, he knew which cops were bad. Good cops knew which cops were bad. But county attorneys routinely opposed motions to get a judge to order the release of police disciplinary information, and he never got much Brady material.

“They stick their head in the sand and say, ‘I don’t have it. I don’t have to give it to you,’ ” Knutson said. “They’ve been allowed to get by with that for way too many years.”

If the Supreme Court overturned a few convictions, “I guarantee that would stop,” Knutson said.

Relying on a flawed system

The state report said the city’s system for identifying Brady material depends on misconduct investigations by Internal Affairs and the Office of Police Conduct Review. MPD’s disciplinary system, however, has often been slow to mete out even minimal sanctions for serious wrongdoing, a Reformer investigation showed in 2020.

And, an officer could have a major disciplinary sanction, but it can remain concealed for years as the case drags on during appeals and arbitration. 

Also, rather than promptly adding misconduct findings to officers’ files, the city only collects information on police discipline four times per year, so it’s not real-time data.

“As a result, individuals accused of crimes may consider plea deals or may even proceed to trial without the benefit of impeachment evidence, simply because the city infrequently updates its records,” the report said.

Coaching is not discipline, so not Brady

The report said the city only considered misconduct that resulted in discipline to be Brady material. But there’s another category when an officer is ordered to undergo what’s called “coaching.” Because MPD doesn’t consider coaching to be discipline, they are not a public record, and many sustained complaints aren’t disclosed to defendants.

“Public defenders and county prosecutors stressed that inappropriately narrowing impeachment information in this manner means that neither prosecutors nor public defenders have the information they need to properly prosecute or defend a case,” the report said.

Defendants can only get that information if it’s considered relevant by a prosecutor and judge. But there’s no written guidance on determining what information is relevant, so the decision is entirely up to the discretion of the prosecutor, the report said. 

Cerra learned about coaching while she was chair of the Minneapolis Police Conduct Oversight Commission. 

Darcy Sherman, assistant Hennepin County public defender, said that “Nothing has happened” on the Brady front in the three months since the report’s release. 

Knutson said failure to act on the report would be a violation of lawyers’ rules of professional conduct.

With cops on trial, suddenly information became available

When Attorney General Keith Ellison prosecuted the officers involved in killing Floyd, he obtained damaging information about them, especially about Chauvin. 

Public defenders redoubled their efforts after the Chauvin trial, Sherman said, pressing prosecutors to look for Brady material. But prosecutors are still not handing over anything except sustained disciplinary findings, which can take years to settle.

In the meantime, Sherman said public defenders gather information from lawyers and the media so other attorneys can use it.

“We’re trying to track it because it’s clear nobody else is,” she said. “You don’t know what you don’t know.”

Which means they can only speculate: “We suspect it’s very, very bad.”

Rather than give up impeachment evidence about an officer, local prosecutors have at times removed police officers from the witness list, according to the report.

Cerra and former Assistant Anoka County Attorney Paul Ostrow recently did a presentation on Brady issues to Hennepin County lawyers and judges. They talked about the Jaleel Stallings case, which Cerra said is a “huge example” of a case where Brady material wasn’t turned over.

The St. Paul man fired his pistol at an MPD SWAT team that was roaming Lake Street in an unmarked, white cargo van, firing plastic projectiles at people who were breaking curfew five days after Floyd’s killing. Once he realized they were cops, Stallings surrendered. The SWAT team beat him anyway, fracturing his eye socket. 

Stallings claimed self-defense and last year was acquitted by a jury of eight charges — including attempted murder. Stallings’ attorney has said he was not given any disciplinary records for the officers involved. Two of the five SWAT team members had been disciplined before — which Cerra said was “totally relevant” and could’ve helped Stallings win an appeal if he’d been convicted.

“He could’ve been convicted of murder,” Cerra noted.

The Hennepin County Attorney’s Office doesn’t keep a so-called “Brady list” that automatically excludes officers with credibility issues, but instead reviews officers case-by-case. Dan Mabley, a former judge who is now chief deputy of the criminal division, leads a committee that determines what is Brady material. Earlier this year, he told KSTP the office relies on discipline records it gets from MPD. He did not respond to a request for comment.

Ward said the prosecutors should have a Brady list.

“I’m a little dumbfounded as to why they wouldn’t,” he said.

When she worked as a public defender, Cerra knew “some of these tricks were happening,” but she didn’t know the county didn’t have a Brady list and “weren’t telling anybody.” 

She said her client in the Palmer case didn’t commit any crime beyond perhaps jaywalking, while Palmer committed serious misconduct by “beating him up.” Prosecutors should have dropped the case as soon as they figured out what happened, she said.

Instead, they charged her client, and once a person pleads guilty to obstructing police, it’s virtually impossible to sue the police for misconduct or excessive force, Cerra said.

Withholding Brady material made it almost certain he would be convicted, she said, and helped the city avoid a potentially expensive lawsuit. Nobody learned of Palmer’s past, and he could keep testifying in criminal cases. 

But defense attorneys don’t know what they don’t know.

“That would have won my case,” Cerra says of the Brady material she couldn’t get. “I can’t stop thinking about it. Palmer really beat the s**t out of a vulnerable adult.” 

Palmer could not be reached for comment.

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Deena Winter
Deena Winter

Deena Winter has covered local and state government in four states over the past three decades, with stints at the Bismarck Tribune in North Dakota, as a correspondent for the Denver Post, city hall reporter in Lincoln, Nebraska, and regional editor for Southwest News in the western Minneapolis suburbs.