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Local Brady list exists

Profile image for By Christian McPhate
By Christian McPhate

District attorney's office says it keeps track of county officers' conduct

The Denton County District Attorney’s Office acknowledged Thursday that it keeps a list of certified peace officers who are not allowed to testify in criminal trials because of their checkered histories, including criminal conduct, dishonesty and unprofessional conduct.

The copwatch list is a “living and breathing” official document the Denton County District Attorney’s Office creates and maintains with peace officer names added and removed on a case-by-case basis, said Michael Moore, chief of the felony trial division.

“Denton County is ahead of the curve because some of the surrounding counties are asking how we do it,” Moore said.

He told the Denton Record-Chronicle that Denton County is not the only county with a copwatch list. It’s better known as a Brady list, named after a 1963 U.S. Supreme Court decision that requires prosecutors to make available any evidence or impeaching information that is material to a defendant’s guilt, innocence or punishment.

District attorney offices in Collin, Tarrant and Dallas counties also keep a list of peace officers who cannot be called to trial as witnesses because of their lack of credibility.

Moore would not confirm how many officers’ names appear on the district attorney’s list.

According to a Feb. 14 report in the Austin American-Statesman, Denton County had 39 police officers on its Brady list.

In Dallas County, Craig Watkins, the former district attorney, had compiled a spreadsheet with 192 police officers listed for committing acts such as falsifying documents and other questionable behavior that compromised their credibility as a witness, according to the American-Statesman report.

Moore said the district attorney’s office recently created an informal Brady committee with attorneys from each division serving on the board. This committee is formed with attorneys from the misdemeanor, intake, investigation, felony and civil divisions.

On Jan. 1, 2014, the Michael Morton Act became law, requiring Texas prosecutors to share any information or files with defense attorneys and record the evidence that they disclosed. For example, if the arresting police officer had been convicted of driving under the influence in the past, the law requires prosecutors share this information with the defense attorney who may be representing the accused.

“[Texas prosecutors] shall not suppress evidence or secrete witnesses capable of establishing the innocence of the accused,” according to the Morton Act.

Moore said that the Brady committee has several ways to obtain information, but once it becomes aware of an incident involving a police officer or state agent, it requests documentation and begins an investigation. Once all the evidence is collected and reviewed, the committee discusses the issue and makes a recommendation to Denton County District Attorney Paul Johnson.

“I can tell you as a committee that we take this very seriously,” said Moore, who serves on the committee. “We don’t want to put anyone’s name on the officer watch list unless we have fully investigated it the best we can.”

Moore said the Denton County district attorney’s list has been a work in progress. It is divided into two sections. The first section includes peace officers whose past conduct must be disclosed to defense attorneys, but the district attorney’s office will still allow them to be a trial witness.

Some of the past conduct includes offenses like driving under the influence or other unprofessional conduct matters.

The second section includes peace officers whom the district attorney’s office will not sponsor because they are not credible. For example, officers who were caught lying under oath or falsifying documents — crimes of moral turpitude.

Moore said the list is not a big problem in large police departments because multiple officers may respond to the scene of the crime. So if an officer’s name is on the Brady list, then another officer could possibly stand in his or her place as a witness for the district attorney’s office.

But the list could be a big problem for smaller police departments.

For example, Krum employs less than a dozen officers. If one of them witnesses a crime and arrests the suspect, he or she would become a key witness in court. If the officer’s name appears on the Brady list, a new can of worms opens up for everyone involved.

“If that officer is on the do-not-sponsor list, then chances are we do not go forward with the case,” Moore said.


The case of Lake Dallas

A situation similar to what Moore described was on everybody’s mind Monday evening at the Lake Dallas town hall meeting.

Chris Chumley, a Lake Dallas resident, discussed a situation involving a Lake Dallas police officer who’d been writing speeding tickets on Lakeview Drive based on an orange posted speed limit sign.

Chumley said the officer can’t testify in court because he’s on the district attorney’s list.

City Attorney Richard Berman said that the district attorney’s office does keep a list with the names of police officers whose credibility is damaged. Berman said the district attorney’s office would refuse to handle those cases if the listed police officer was the chief witness.

Nick Ristagno, Lake Dallas’ city manager and police chief, verified that a Lake Dallas police officer’s name is on the district attorney’s list.

“He was charged with misconduct,” Ristagno said. “But he served his sentence, and he has never done it since.”

Even though the Lake Dallas officer is on the district attorney’s Brady list, he is still allowed to testify in municipal court in cases involving speeding tickets and other misdemeanors.

At the meeting, Ristagno pointed out that if the Lake Dallas officer happened to be handling a case where he couldn’t testify, the department would send another officer to assist him.

The Lake Dallas Police Department employs 13 officers.

Chumley, however, was so angered by Ristagno’s answer that he stormed out of the town hall meeting.

“Ristagno knows that all of the evidence that the first officer discovered is no longer admissible in court,” Chumley said.

Austin-based attorney Randall “Buck” Wood agrees with Chumley that a smaller community like Lake Dallas would have more of a problem with a police officer being blacklisted by the district attorney’s office.

Wood has represented state lawmakers, judges and many other elected officials accused of wrongdoing.

He explained that in a large jurisdiction like Austin or Dallas, the police department would just reassign the blacklisted police officer to desk duty. But in a small jurisdiction like Lake Dallas, a police officer’s credibility is extremely important, especially when there are not enough officers to assist.

Some district attorneys won’t even file charges if they know the blacklisted police officer is the chief witness.

Wood has been aware of district attorneys keeping some kind of a list for several decades now.

He says some district attorneys and police departments are reluctant to discuss which officers are currently on their lists.

“But I don’t know why they’re still police officers if they’re not credible,” Wood said.

And that is the big question, he said.


CHRISTIAN McPHATE can be reached at 940-566-6878 and via Twitter @writerontheedge.