rebeccab@sfbg.com
The San Francisco Police Department will begin tracking the records of officers who have histories of misconduct or other red flags so the information can be disclosed to the district attorney if the officer is called to testify in a criminal trial.
Chief George Gascón announced the new protocol Aug. 20 in response to revelations in the wake of the crime lab scandal that San Francisco District Attorney Kamala Harris had failed to comply fully with a constitutional obligation to provide criminal defense attorneys with the misconduct records, which the defense could then seek to have admitted as evidence to undermine a witness’ credibility.
Harris’ office has to rely on police to determine whether any problems lurk in a police witness’ background, so the hiccup in compliance was blamed on weak communication between the two departments.
But there’s a big lingering question Gascón hasn’t directly addressed: the research will almost certainly turn up information that ought to lead to officer discipline, and in some cases to cops losing their jobs. How, exactly, will the department handle that?
Speaking at a press conference, Gascón said he’d worked closely with the DA’s office and San Francisco Police Officers Association (SF POA) to streamline the process to ensure compliance. “We believe this will be a model policy throughout the country,” Gascón said, flanked by high-ranking members of the department as a line of television cameras pointed toward him.
Since the constitutional requirement stems from the 1963 case Brady v. Maryland, a bureau order issued by the chief refers to negative marks on an officer’s personnel record that is determined to be admissible as evidence as “Brady material.” It could be as simple as a 10-year-old D.U.I. charge, or a more serious offense involving an officer’s conduct in the line of duty.
If an officer has been disciplined in the past for making false statements, for example, and that history is admitted as evidence in trial, the jury might be less inclined to take his or her word as gospel.
In the past, anytime the DA called on an officer to testify against a criminal defendant, the DA’s office was supposed to contact the SFPD to request a background check for that officer to see if any Brady material had to be turned over to the defense. Under Gascón’s new plan, SFPD will notify the DA in advance about officers who have potential “Brady material,” without revealing just what the historic offense is. If the DA calls a police witness whose name has been flagged, the prosecutor will have to file a motion for the court to open the personnel file and determine if the past misconduct is relevant to the case at hand.
So how does an employee get his or her name flagged? The SFPD has assembled a powerful new body with a hokey-sounding name, “the Brady Committee,” to determine whether an employee’s name should be forwarded to the DA. Comprised of various heads of SFPD divisions plus a retired judge with a background in criminal law, the committee will review personnel backgrounds and give employees a chance to make their case as to why the dirt the department has on them shouldn’t be counted as Brady material.
Not surprisingly, “the list” — as it’s being called — won’t be made available to the public, but at the Aug. 20 press conference, reporters wanted to know how many names were on it. Gascón indicated that it was too early to say. “There is unquestionably going to be a number that will start surfacing,” he responded. “At this point, we do not have a list.”
A host of questions surround this new development, and one of the first to emerge is whether officers who are still on patrol duty despite major offenses in their histories will ultimately be shown the door as a result of the internal investigative procedure. Gascón alluded to as much, saying, “When some one commits a criminal act, they taint the entire organization. When we have a bad apple, we’re going to deal with the bad apple.”
And while he declined to give a tally of the list, the chief did make it sound as if the investigations had already been completed. “We have basically gone through the process of assessing. We have vetted our entire department and to the greatest extent that we can tell, we know what needs to be known.”
In an era of economic austerity, another question that has been raised is what the impact will be for officers who have been reassigned to desk jobs in the wake of misconduct charges — earning salaries much higher than would-be civilians capable of performing the same tasks. A recently issued report by the Controller’s Office found that the SFPD could do more tighten its spending. “The department needs to improve its controls over overtime and premium pay,” the office concluded after an audit. “While the department has reduced overtime costs in recent years, it does not consistently follow its policies and procedures for earning, documenting, and approving court appearance premium pay and acting assignment pay.”
Aside from the spending issue are speculations about the political ramifications. Some have been wondering what kind of backlash could be prompted from the politically powerful SF POA if the new Brady protocol results in dismissals or demotions.
The issue of reassignments is alluded to briefly at the close of the chief’s bureau order. “This procedure does not address the situation in which the department determines that the existence of Brady material may prevent an employee from effectively testifying and consequently may limit the assignments available to the employee,” the order notes. “The department intends to implement a separate procedure to address that situation after [meeting] and conferring with the Police Officers Association and other affected employee organizations.”
But that alone is a red flag: SF POA will almost certainly resist any efforts to use the Brady material discipline officers — or to get rid of cops who shouldn’t be on the force. And if Gascón allows the union to set the terms, plenty of bad apples will remain in the barrel.