How Conn. keeps track of cops deemed unreliable witnesses

In late 2014, attorney Brett Salafia prosecuted a case involving Guillermo Balbuena, a New Britain man who was eventually convicted of conspiracy to commit murder, after he and five other individuals were involved in the January 2011 crime that took the life of Erick Cruz.

“Everything was pretty straightforward in the case,” said Salafia, now an executive assistant state’s attorney with the Division of Criminal Justice.

But prosecutors hit a road bump as they were planning to call a New Britain police officer as a witness in the case.

Prosecutors, including Salafia, had learned that the officer had been accused of falsifying a document, by changing his position to one of more seniority, on the department’s request for overtime list.

When prosecutors received that information, they were required by law to disclose it to the defense attorney in the case, because it raised questions about the officer’s credibility, and could undermine the integrity of the case if the officer did testify.

After reviewing the information with a judge, Salafia and the defense attorney decided not to call the officer to the stand.

In some states, prosecutors may have added that officer onto a “Brady List,” a document containing the names of officers (and other court witnesses) whose involvement in a case could undermine its credibility.

In Connecticut, there is no central place for prosecutors to check on the past credibility of officers.

Those advocating for the creation of a Brady List say the list serves as a tool to help prosecutors stay in compliance with the law, which requires that prosecutors disclose any evidence to the defense that could potentially exonerate the defendant — even if it’s not favorable to the prosecution. Advocates also argue that all prosecutors’ offices should keep a Brady List because it creates more transparency and fairness to the defense.

But opponents say the list would need to be continuously updated to avoid relying on information that is antiquated. They also say it’s unclear how often and when the list would need to be updated in order to adhere to best practices and ensure special care is taken to protect the confidentiality, privacy and reputations of law enforcement officials.

And they point out that there is a process in place to avoid having problematic officers testify in Connecticut cases.

The issue of Brady Lists has risen to prominence recently, as discourse around police accountability remains in the spotlight.

In late September, district attorney Rachael Rollins, in nearby Massachusetts released a Brady List with 136 law enforcement officials who had been “indicted or charged on federal offenses or accused of or engaged in misconduct,” according to CommonWealth, a magazine in Boston.

A lot of focus has been placed on police misconduct in years past, but the focus has now shifted to also include prosecution, said Alissa Marque Heydari, a former Manhattan district attorney prosecutor, turned deputy director of the Institute for Innovation in Prosecution — a think tank for prosecutorial reform at John Jay College of Criminal Justice in New York.

“Prosecutors are a big part of our criminal justice system and they have a lot of power in the system, and

Connecticut prosecutors don’t keep Brady Lists. They say the state’s policy is “ahead of the curve” at keeping track of police officers with credibility issues, conflicts of interest and misconduct.

the more that people understand about what a prosecutor does, I think is, better,” she said.

Dan Barrett, legal director for the Connecticut American Civil Liberties Union (ACLU), agreed.

“So much of the criminal prosecution system depends on the word of police, and so one of the things that’s very important in a system that takes the police word for a lot of weight, is whether the system is weeding out those police employees that should not be trusted,” he said.

Brady and Giglio

The name for the Brady List comes from the 1963 U.S. Supreme Court case Brady v. Maryland, where prosecutors failed to turn over evidence in the case against John Brady, a young defendant eventually found guilty of first-degree murder for his role in a robbery that resulted in the death of his acquaintance William Brooks, according to FindLaw, an online platform providing free legal news and information to lawyers and other consumers.

During the trial, Brady admitted to playing a role in the robbery but said his “companion” Charles Boblit had done the actual killing. At the end of the trial, both men were sentenced to death.

But officials learned that prosecutors had withheld a written statement from Boblit where he outlined a confession to killing

Brooks.

Soon after, Brady’s sentence was reduced from the death penalty to life imprisonment. The Supreme Court case established that the government must disclose any evidence that might exonerate a criminal defendant to ensure criminal trials are fair. It’s one of the most important court cases in the area of criminal procedure, according to FindLaw.

“Out of Brady came several Supreme Court cases that say, in addition, specifically prosecutors have to turn over any information that can be used to impeach a witness,” said Heydari of John Jay College.

For example, in the 1972 case, Giglio v. The United States, the prosecution failed to tell the jury that its Assistant U.S. Attorney had promised a key witness that he wouldn’t be prosecuted if he testified during the trial.

The court ruled it was a violation of due process and required a new trial, according to FindLaw.

Connecticut’s policy

Connecticut ACLU leaders said, if prosecutors aren’t keeping and updating Brady Lists, they’re at risk of not following the law.

But Salafia, a longtime prosecutor for the state, said that is far from the truth.

“I don’t see the value in it,” Salafia said of the Brady List.

“I think that there is a push to have this list of naughty police officers, and (there’s) kind of a thought process that problem police officers are the norm and not the exception,” he said. “I think something really good to look at is cases in Connecticut that have been overturned because of a Brady or Giglio violation. And those cases just don’t exist because Connecticut prosecutors have been doing well for the entirety of the time I’ve been a Connecticut prosecutor and we take our responsibility seriously.”

In place of keeping a Brady List, Connecticut prosecutors have developed their own policy. When prosecutors want to call a police officer as a witness to the court, they send a “Giglio letter” to the officer’s police chief. In the letter, prosecutors ask if the department has any records or information that could negatively impact the credibility of the officer if he or she had testified as a witness on the stand.

If police leaders provide any such information, the prosecutor is required to notify their supervisor and the state’s attorney immediately.

In a Giglio letter, police chiefs may report: Any credible information about allegations of misconduct, incidents showing dishonesty or bias from a police officer, any past or pending criminal charges or investigations against an officer, known prejudice or animosity by a police officer toward any group in which the defendant is a part of, falsifying or destroying documents or tampering with or destroying evidence.

“The big problem with that is, (prosecutors are) relying on the police to do all the work for them, and they’re relying on the police to determine what is a credibility problem and what is not,” said Barrett of the ACLU.

“The police internal discipline system is solely focused on the rules that police departments write for themselves, and it’s in a context, in which, police are the only deciders of whether or not one of their own rules are broken,” Barrett continued.

When prosecutors rely on police record-keeping and self-reporting, that reliance is subject, in some departments, to “disappearing discipline,” when a police employee is disciplined and then, by operations of their contract, a certain amount of time later, all mentions of the discipline would be removed from that officer’s file, Barrett said.

Salafia, the state prosecutor, said that may be a valid point, but a prosecutor’s job is not to get involved in the “contractual minutia” between police departments and the municipal or state government entities in which they work for. Any kind of rule change regarding “disciplinary discipline” would need to come from legislative bodies, he said.

Salafia said a prosecutor’s ethical obligation requires that they seek out any information that would undermine an officer’s credibility.

“If we were talking about an employee at Cigna or big insurance companies in Hartford, wouldn’t their HR department be the place where I’d get that information about their employees?” Salafia asked. “I’m not sure where else one would go to get that information about employees of a particular agency other than the agency (itself ).”

Connecticut’s policy is well ahead of the curve, Salafia said, and the right time to request such information about a police officer is immediately before a court case, each and every time one is scheduled to occur, he said.

Heydari, of John Jay College, would not comment specifically on Connecticut’s policy without firsthand knowledge of what state prosecutors do. But her organization — which brings together prosecutors, academics, impacted individuals and community organizers to discuss highlevel polices in prosecution — generally recommends that prosecutors’ offices keep a list of officers who might undermine the integrity of a case, she said.

If, for example, a prosecutor in an office with 50, uncovers material “today” that is problematic regarding a police officer — for instance, they find video showing that the officer wasn’t being truthful — that prosecutor may not go back to the police department to inform them about it, not out of malice, but because it might not be something that crosses their mind to do, Heydari said.

“And then if you have another prosecutor in that office, say, six months later, who intends to use that officer as a witness, under the law, he or she is responsible for turning over that (same piece of ) information to the defense,” she said. “They won’t know that unless there’s an internal list that the prosecutor’s office is keeping track of.”

But Salafia said relying on old information from another prosecutor, and characterizing it as up-todate without sending a Giglio request, would be falling short of his own ethical obligations.

“I think Connecticut’s system is designed in a way to minimize errors by having the information as the snapshot in time closest to when it would be used,” he said.