The ‘Brady Rule’ And Arbitration

A case involving the Kansas City Police Department has explored the relationship between the Brady/Giglio rule and the “just cause” provisions of a collective bargaining agreement. The case stemmed from the termination of Officer Jeffrey Gardner.

Gardner was assigned to the SCORE Team, the Department’s equivalent of a SWAT Team. The Wyandotte County District Attorney conducted an investigation into whether members of the SCORE Team had stolen items from crime scenes. The DA eventually decided not to issue criminal charges against Gardner, commenting: “I don’t have a clear opinion as to whether Gardner would clearly fall under the auspices of Giglio. However, I now have an opinion based upon all of this information provided to me. That opinion is that this office would consider any information provided by Gardner to be suspect and therefore it would be highly unlikely we would file a case that is based in significant part on his testimony.”

The City then fired Gardner, citing underlying questions as to whether he committed any thefts, and, most importantly, the DA’s Brady/Giglio letter. The City took the position that Gardner could not function as an officer under the cloud of the letter.

An arbitrator overturned Gardner’s discharge and awarded him reinstatement with full back pay. On the underlying theft allegations, the Arbitrator concluded that the City had failed to prove that Gardner stole anything. The Arbitrator cited a variety of factors in reaching this conclusion, including the fact that the stories told by some key City witnesses had changed over time.

The Arbitrator wrote at length on the Brady/Giglio issue. The Arbitrator stated that “as the Arbitrator has found the evidence does not sustain the allegations of theft, and will order Gardner’s record to be cleared of these allegations, there is nothing left that the DA would need to report concerning Brady-Giglio material. He refused to prosecute on the available evidence and the Arbitrator has set aside the basis for the administrative actions of discharge based on theft. As a result, there is no determinative adverse finding against Gardner. Neither is there any pending investigation that needs to be reported.

“As the DA conceded on cross-examination, as a public servant who must protect the community while upholding his ethical and legal responsibilities, he would need to judge on a case-by-case basis whether to use Grievant as a witness in future cases. Even if Giglio disclosures would, in the DA’s professional judgment, still be necessary regarding Gardner, the disclosures would not need to be made until a trial date was near.

“Whatever the DA decides, he has no authority to determine P.D. discipline. Even in arbitration cases where a police officer was guilty of an infraction that might make him a ‘Brady cop,’ arbitrators still did not uphold the discipline. Under Kansas law, unless otherwise provided by statute, every person is qualified to be a witness. The DA will have to make his own judgments on whether to use Gardner as a witness and whether he still has a Brady/Giglio disclosure responsibility. The DA, however, has no power, by his own fiat, to de facto discharge employees by saying he will not use them as witnesses.

“The clear and convincing admissible evidence does not prove Gardner engaged in theft. The DA’s decision not to use Gardner as a witness is no longer valid in light of the above finding. Even if the DA maintains his position on using Gardner as a witness, Gardner still has his ‘license’ to testify.”

Unified Government of Wyandotte County, FMCS Case. No. 130114-52556-7 (Diekemper, 2013).