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Cuyahoga prosecutor has process for tracking cops with credibility concerns. Is it enough?

The Brady letters sent out by the Cuyahoga County Prosecutor's office include information on police officer criminal convictions, internal affairs investigations and instances of untruthfulness on the job, among other misconduct.
Documents via the Cuyahoga County Prosecutor’s office
Collage by Ryan Loew / Ideastream Public Media
The Brady letters sent out by the Cuyahoga County Prosecutor's office include information on police officer criminal convictions, internal affairs investigations and instances of untruthfulness on the job, among other misconduct.

Under decades old U.S. Supreme Court case law, prosecutors are required to disclose evidence in the state’s possession that would be beneficial to the defense in a criminal trial.

In 2018, the Cuyahoga County Prosecutor’s Office started sending out letters naming local police officers whose misconduct prosecutors determined must be disclosed because it was serious enough to cast doubt on their reliability in court.

Since taking office in 2017, Prosecutor Michael O’Malley has sent out 151 letters notifying the police departments where those officers work and has included a copy of the letter in each officer’s file kept by the prosecutor’s office.

They are known as Brady or Giglio letters, named after a pair of U.S. Supreme Court cases. The first, Brady v. Maryland, was decided in 1963 and established a constitutional duty to turn over any evidence beneficial to the defense before a criminal trial.

“The main legal reason for that is because the state has incredible advantage over criminal defendants when it comes to investigating and preparing cases for trial,” said Case Western Reserve University Law Professor Michael Benza.

“Oftentimes, defendants don't have lawyers until well after the case has been investigated. And so, based on the idea of making sure that defendants get a fair trial, it’s the obligation of prosecutors to turn this over,” Benza said.

In a 1972 decision, Giglio v. United States, the court found the prosecution must turn over information that raises doubts about a witness’ credibility, known as impeachment evidence. That includes evidence about a police officer’s credibility.

Each year the prosecutor’s office asks every police department in the county whether they have any evidence of officer misconduct in their department that might qualify as impeachment evidence.

“That is how we do get a lot of information sent to us, sent from the different agencies, sent for us to review and make decisions about whether it's something that needs to be disclosed or not,” said Kristen Sobieski, appeals division supervisor at the Cuyahoga County Prosecutor’s office.

The letters the prosecutor’s office issued based on that information have never been released publicly before in Cuyahoga County. Ideastream Public Media, in partnership with Columbia Journalism Investigations and NPR, obtained them through a public records request. The letters identify officers whose misconduct may cast doubt on their reliability as witnesses in criminal cases.

The department that received the most letters, by far, was the Cleveland Division of Police. From 2018 through September of last year, 103 letters went to Cleveland officers. The second most was East Cleveland Police, with 11 letters.

The majority of the incidents that led to the letters were covered by the media, several letters only referenced internal affairs investigations and did not include details of the misconduct.

The first officer to receive a letter, in April of 2018, was Cleveland Police Detective Rhonda Gray, who, according to the letter, failed to investigate a homicide, then lied in her written reports about it.

Many of the letters referenced internal affairs investigations or administrative discipline without any further details. Several were for driving under the influence arrests. In a few cases, the letters were sent years after the misconduct occurred.

The prosecutor has the final say, with input from others in his office, on whether an officer is added to the Brady list. “We cast a wide net. And we try to err on the side of disclosure,” Sobieski said.

Since the Supreme Court’s Brady decision six decades ago, defense attorneys routinely ask for any evidence that would support their client’s case. There may be differences of opinion about what evidence rises to that level, though, and it’s left to prosecutors to decide what must be turned over.

Cuyahoga County’s Chief Public Defender Cullen Sweeney said he typically only asks for background on a police officer if he already has reason to believe there is something reflecting misconduct in it.

“Really it's their obligation to seek that information out and then turn it over to us,” Sweeney said. “And so, in a sense, we're relying on the expectation that they're doing that.”

In the past, the prosecutor’s office did not have a formal system for disclosing officer misconduct to defendants.

Sweeney started at the Public Defender’s office in 2004 and said O’Malley has improved the handling of these disclosures. Before O’Malley’s arrival, it was very different.

“It would just be happenstance that this prosecutor, in this case, for some reason, might have known that this officer had been disciplined,” Sweeney said. “But absent these efforts, I think it's difficult, we certainly weren't getting it in a concerted way previously.”

One example is Clinton Ovalle.

The Cuyahoga Metropolitan Housing Authority police officer was named in a Brady letter issued by the county in 2018. That was based on a letter sent to his boss, CMHA Chief of Police Andres Gonzalez, four years earlier by the U.S. Attorney’s Office about untruthful testimony by the officer on more than one occasion. The office said at that time it would no longer take any case that involved Ovalle in an investigatory role.

A repeat offender like that will always get a very close look by her office, said Sobieski. But when it’s just a single case where a judge finds an officer to not be credible, she is skeptical about whether a judge’s word should be the last say.

“I might look at that court's judgment entry and the transcript of the proceedings and say, ‘Hey, I think this judge got this completely wrong and I might be able to take this over to the district court of appeals and win a reversal,’” Sobieski said.

According to Benza, the CWRU law professor, it’s still an open legal question whether prosecutors have to disclose to defense attorneys instances of an officer being found untruthful in court.

“The U.S. Supreme Court has not yet made a decision on this. It certainly does seem to qualify as impeachment evidence,” Benza said. “Prosecutors will not disclose some types of information and when a defendant later finds it, they will respond to a challenge saying, 'Well, if the defendant had bothered to go to the courthouse and do this research, they could have found these cases and therefore we don't have an obligation to turn over evidence that a defendant already has or could find on their own without us giving it to them.'”

Courts have found that to be a valid argument, depending on the circumstances of the particular case, said Benza.

Despite that, said Sobieski, her office discloses publicly available cases, like drunk driving or officers arrested for bar fights – things the defense conceivably could have found – because the office goes beyond what’s required.

The only way to challenge the prosecutor’s decision not to disclose officer misconduct is through the appeals court. That could soon change for the department with the biggest number of Brady disclosures.

With the passage of Issue 24, a local charter change establishing civilian oversight of the Cleveland Division of Police, decisions about Cleveland officers will be made by the new Community Police Commission.

This story was produced in collaboration with Ideastream Public Media, NPR’s Station Investigations Team and Columbia Journalism Investigations, an investigative reporting unit at the Columbia Journalism School in New York.

Matthew Richmond is a reporter/producer focused on criminal justice issues at Ideastream Public Media.