Mimesis Law
7 August 2020

Even Cops Deserve A Chance To Defend Themselves From Taint

June 23, 2015 (Mimesis Law) — A little while ago we talked about the responsibility of the State of Texas to provide the defense with exculpatory and favorable information that is in the State’s possession. This duty is imposed on the prosecutor by both Texas statutory law and by constitutional law in Brady v. Maryland. So if the District Attorney has information that an officer may have been less than truthful / fudged / lied on the stand, the DA has no choice—they must inform the defense. Period, end of story, with no exceptions.

Sharen Wilson’s staff found a bunch of notebooks at the Tarrant County Criminal District Attorney’s Office that contained the impressions of prosecutors of the testimony and veracity of various state witnesses. In the 22 binders, there was sufficient information to raise questions about 16 police officers and three intoxilizer operators. Sharen Wilson did exactly what the law required, she sent out Brady notifications to 4,000 defense attorneys, whose represented clients in cases where those 19 individuals were involved.

All good, right? Well, maybe not so much.

You see, the officers and operators involved don’t get a say in this. An officer who can’t testify in court is useless to a police department. Naturally, the officers don’t like the idea of their name being dragged through the mud, held up to public shame and ridicule. Both the Fort Worth Police Officer’s Association (FWPOA) and the Combined Law Enforcement Associations of Texas (CLEAT)* are naturally concerned that the officers whom they represent are having their reputations tainted and their careers possibly ended.

Rick Van Houten, FWPOA president, asks:

If there was enough evidence to substantiate this opinion, why wasn’t the Fort Worth Police Department’s internal affairs division notified promptly of this possibly perjury and/or why were perjury charges not filed at the time?

Terry Daffron Porter, a staff attorney for CLEAT, noted that the forms showed a “blatant disregard for an officer’s due process rights,” and wondered if the forms were filled out more harshly if the prosecutor had lost the trial. What’s more, under Texas Civil Service laws, administrative complaints must be initiated within 180 days, which has long since passed. For most of the alleged violations, the statute of limitations for criminal charges have also passed.

So we have a situation where the officers have no opportunity to clear their name, and the District Attorney has no discretion on forwarding the information to defense attorneys. Will the DA’s office develop standards for how to include an officer on the list? Just to the south of the Dallas-Fort Worth metroplex is Ellis County, where a similar Brady list was released.

There are only three ways to get on the Ellis County list. First, a police chief informs the DA of a credibility or integrity problem. Second, the officer has been charged with a crime. And finally, a member of the DA’s Office has witnessed an officer being untruthful.

Still, the officer has no way to contest his name being on the list—and the Ellis County DA, Patrick Wilson (no known relation to Sharen Wilson) is okay with that.

Do I want to see their lives destroyed? No, absolutely not. But it’s like I told the American-Statesman, does a person’s right to a job trump a person’s right to justice?

This is the proverbial rock and a hard place, and it will be interesting to see what develops next. Police officers, like every other citizen, have a right not to be defamed and falsely accused. If they’re going to taint an officer’s integrity by notifying counsel of a “problem” pursuant to Brady, then where is the cop’s opportunity to challenge, or at minimum respond, to allegations against him?

Defendants have a right to know about exculpatory and favorable information. Which right prevails?

*Full Disclosure: The author was a member of CLEAT while he was a police officer and testified at Texas Legislative committee hearings numerous times for CLEAT sponsored legislation.

3 Comments on this post.

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  • Nigel Declan
    25 June 2015 at 4:34 pm - Reply

    There is a perfectly good place for officers to defend against the taint. It is the same place that ordinary citizens, especially those charged with criminal offences, get to do the same. It is called the witness stand, and they would get to defend against these claims under oath, as an added bonus.

    • Greg Prickett
      25 June 2015 at 5:26 pm - Reply

      The problem is that officers do not get to defend it. They do not get to ask questions, they don’t get to raise a defense, they have no opportunity to resolve this. An officer who has been falsely accused can’t even bring a defamation suit because he or she can’t win unless they can show actual malice. An ordinary citizen doesn’t have to prove actual malice.

  • K Magnuson
    7 December 2016 at 1:41 am - Reply

    I agree there needs to be a process where facts are considered and a judicial determination made, however experience has shown me that many police and prosecutors are so determined to convict that the slide from the truth to fiction is too convenient and tempting. The process is absolutely needed because if an officer or witness for the State has committed perjury I don’t want them in public service and they belong in jail. This includes a DA that knowingly fudges on Brady disclosures and continues to prosecutes a case long after innocence has clearly been established.

    But a similar injustice occurs in vexatious litigation determinations(civil)a right to sue is removed without a full trial and jury(option). It never expires and prosecutors use this information to abuse their rights because they cannot sue.

    Abuse of process by any official needs to be addressed, prosecuted, and removed however the State Bar and the State Commission on Judicial Conduct have been corrupted which removes justice and due process on a large state wide scale.

    So officers wrongly accused and Brady listed, welcome to the club of injustice we can all have tee shirts made.