Mark Neri was a Ceres, California police officer. On April 28, 2008, the District Attorney’s Office of Stanislaus County informed the Ceres Police Chief that Neri’s name was going to be placed on a “Brady List” and that several hundred pages of documents pertaining to Neri would be disclosed to criminal defendants. The District Attorney’s Office does not have any objective criteria for why or how the DA selects officers for investigation or placement on the Brady List, or what type of material is considered Brady Material.

The DA had conducted an apparently impromptu investigation of Neri. The investigation included reviews of a former employer’s (also a police agency) records and the Ceres Police Department personnel files. No one informed Neri that the DA had obtained his employment records. Neri was not given the opportunity to object to the dissemination of personnel and private documents before the DA disclosed the information. Included in the disseminated documents was information regarding an allegation that was neither sustained nor acted upon by Neri’s former employer or the DA.

The Department sent a letter to the DA requesting that the DA refrain from disclosing Neri’s personnel and personal information. Nevertheless, the DA began informing criminal defense lawyers that Brady Material existed as to Neri. The DA sent a form letter to defense counsel advising about the Brady Material and included a CD with the letter. The CD contained approximately 500 pages of documentation that the DA deemed to be constitutionally relevant. The CD did not properly redact personal information belonging to Neri, and a majority of the documents described the history of a custody dispute between Neri and his ex-wife.

After the Department received the Brady List letter, City officials met with the DA. The City supported Neri and challenged his placement on the Brady List. The DA made it clear that it would not remove Neri’s name. The DA later informed the City that it would not allow Neri to testify for the prosecution in any of their cases without independent corroboration.

On February 21, 2009, the Department terminated Neri, citing his placement on the Brady List. Neri sued the County and the DA, claiming the practice of placing officers on a Brady List without the aid of established and objective criteria violated his Fourteenth Amendment rights. A federal court dismissed the lawsuit, finding the DA covered by “prosecutorial immunity.”

The Court found that “district attorneys are entitled to absolute prosecutorial immunity for conduct that is intimately associated with the judicial phase of the criminal process. The guiding principle is that ‘acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the state, are entitled to the protections of absolute immunity.’”

Neri argued that no immunity was available because the DA did not act in a judicial capacity, but instead acted as an administrator when the DA placed his name on the Brady List and disclosed information. The Court disagreed, finding that “the evaluation of a witness’s credibility is a task that each prosecutor must perform, not only in developing a trial strategy, but also in determining whether to file charges. The District Attorney’s Office has determined that: Brady Material exists as to Neri, disclosures must be made in future cases, and that Neri is not a credible witness. Also, numerous courts have recognized that the decision whether to disclose Brady Material is a prosecutorial or judicial act and therefore immune.”

Neri v. County of Stanislaus Dist. Attorney’s Office, 2010 WL 3582575 (E.D. Cal. 2010).

This article appears in the January 2011 issue