Hennepin County Attorney Mike Freeman recently circulated a memo laying out a new policy for turning over so-called Brady material. Courtesy photo.
Just weeks before voters will elect his replacement and after more than two decades in office, Hennepin County Attorney Mike Freeman circulated a memo laying out a new policy for how prosecutors should turn over so-called Brady material.
In an internal memo obtained by the Reformer, Freeman laid out a new policy for adhering to 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 example, evidence that a police officer has lied in court or has a history of brutalizing citizens.
Freeman wrote in the memo that the new policy was prompted by “recent reports,” including the Minnesota Department of Human Rights report released in April which said his prosecutors do not turn over Brady material, despite a constitutional requirement to do so. The Reformer and KSTP have written about the issue since then.
The MDHR report found “systemic failure” in the way Minneapolis police misconduct is shared with prosecutors, saying Minneapolis officials have not been turning over Brady material for police officers called as trial witnesses.
Freeman wrote that his office has been working on the issue for “many years” and considered the report’s findings when developing the policy.
Freeman’s new policy still doesn’t call for a compilation of law enforcement officers with credibility issues. Defense attorneys want a list of officers with a history of misconduct and lying in court, sometimes called a Brady list. Instead, Freeman intends to continue to review incidents case-by-case, relying on police discipline records. Freeman wrote that it’s his office’s job to “always do the right thing,” and he expects the same from “any and all criminal justice partners with whom we work,” i.e., police departments.
Critics say continuing the current approach relying on police discipline records is problematic because a broad range of Minneapolis police misconduct does not result in official discipline, but instead leads to “coaching.” The city doesn’t consider misconduct complaints that result in coaching a public record, so those sustained complaints aren’t disclosed to defendants or prosecutors.
The two candidates vying to replace Freeman have said they would change how problematic officers are tracked.
Mary Moriarty, the former chief public defender in Hennepin County, told KSTP she would create a Brady list. Former judge and prosecutor Martha Holton-Dimick said she’s considering it.
Freeman wrote in the memo that the office is “in a unique position” to flag and report police misconduct, and he’ll require attorneys to take immediate action when they detect possible misconduct during their review of written reports, body-worn camera videos, surveillance videos or any other materials that are part of a case. Attorneys, paralegals, law clerks and support staff will be required to report “concerning conduct” — such as dishonesty, mishandling evidence, and excessive force — to their manager.
If misconduct occurs, it must be reported to deputy county attorneys and the office “Brady team” to review and determine whether to flag incidents in their system. Then it will be reported to the police chief of the department where the misconduct occurred.
Dan Mabley, a former judge-turned-chief deputy of the criminal division, has led a committee in Freeman’s office that determines what is Brady material.
If police misconduct is found, Freeman said, prosecutors can decline to press charges, dismiss cases outright or agree to the reversal of appealed cases.
The Supreme Court ruled in a 1972 case, Giglio v. United States, that if police or prosecutors have information that shows a witness may be untruthful or biased, they must disclose that to the defense. As part of their introduction to the office, all new prosecutors will be trained on their ethical obligations, including the disclosure of Brady and Giglio information, and trained at least annually after that, Freeman said.
GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
Law enforcement agencies must notify the office when they have an officer with possible Brady or Giglio issues, Freeman wrote.
“If the information is even potentially exculpatory, mitigating, or relevant to the witness’s credibility, the information is disclosed to the defense,” Freeman wrote.
Freeman wrote that his office has changed its practices in two important ways: There’s now an expectation that law enforcement agencies disclose any disciplinary information “proactively and voluntarily.” And, the office has adopted a pre-trial practice of asking officers about Giglio information — which the office was working to update before the state report was issued.
Former Hennepin County public defender Abigail Cerra said she commends Freeman for taking up the issue, but she sees “glaring holes” in the policy he outlined. For example, she said it’s too late in the process to look into Brady issues when an officer is subpoenaed; Brady issues should be considered when the office is charging cases, or at least before the pre-trial hearing.
Cerra said it’d be much more efficient to just check a Brady list at the beginning of a case.
The state human rights report specifically said Freeman’s office is only turning over Brady material for officers listed on witness lists, but if a case doesn’t make it that far because of a plea bargain, the defense may never know about Brady issues.
The state report also said the office leaves “problem officers” off witness lists, so defense attorneys don’t know about them until a trial approaches, and most cases don’t go to trial. That apparently won’t change.
“You’re creating an environment in which people are pleading guilty to cases that should’ve been dismissed entirely,” Cerra said. “That’s a huge problem.”
Also, she said, the memo says nothing about rectifying past cases with Brady violations. Past convictions should be reviewed, she said.
The memo doesn’t identify the gaps in the system that led, for example, to Brady material not being turned over in cases such as Jaleel Stallings’. Eric Rice, who was Stallings’ attorney, was not given any disciplinary records of the officers involved in shooting less-lethal rubber bullets at citizens five days after George Floyd’s police killing. Stallings shot back in self-defense and then was beaten by police. Last year, he was acquitted by a jury of eight charges, including attempted murder.
Rice said it’s hard to find accurate information about the office’s compliance with Brady. He’s filed public records requests seeking that information. The county attorney’s office, he said, should be transparent about what prompted Freeman to announce “elementary procedural requirements.”
“This is basically adopting what should’ve been adopted (59) years ago when Brady was made the law of the land,” Rice said.
The day before the memo was released, Rice received a response to his records request that was “insultingly minimal,” he said.
“Why do we need to play games to figure out what’s going on?” he said. “This is about (whether) we can trust the results coming out of that office.”
Cerra said prosecutors have been disbarred for less: The Carlton County attorney was disbarred in 2020 for failing to disclose police misconduct, leading to the dismissal of 19 pending cases and tossing of eight convictions.
The state report described systemic violations that have been going on for a longer period of time than those in Carlton County, she said.
Freeman said in the memo that the MDHR report raised “multiple troubling instances” in which people of color were disparately affected by Minneapolis police.
“Seeing these many instances summarized in one report was shocking,” he wrote. “The findings put a bright light on the very real racial inequities and injustices that exist in the City of Minneapolis, and those problems cannot be lightly set aside. Real change is necessary.”
Senior Assistant Hennepin County Attorney Max Page said the memo was written because “these areas of law and legal precedent continue to develop,” and the office wants to comply with the law.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.