Brady Does Not Necessarily Require Discharge Of Untruthful Trooper

Thomas C. Wetherington was employed as a trooper with the North Carolina State Highway Patrol. In 2009, Wetherington was fired for violating the Patrol’s policies on untruthfulness. After a variety of appeals, the matter ended up in the North Carolina Court of Appeals.

The Court started with the proposition that under North Carolina law, “determining whether a public employer had just cause to discipline its employee requires two separate inquiries: First, whether the employee engaged in the conduct the employer alleges; and second, whether the conduct constitutes just cause for the discipline imposed. Just cause, like justice itself, is not susceptible of precise definition. It is a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case.”

Wetherington’s conduct involved the loss of his trooper’s hat. Wetherington told a sergeant that the hat blew off his head during a traffic stop, and that as he turned back towards the direction of the roadway and saw a burgundy eighteen-wheeler coming down the road, he heard a crunch and did not see his hat anymore. Four days after the fateful day, Wetherington realized that the hat did not blow off of his head, but that he had placed the hat on the light bar of his Patrol vehicle and it blew off of the light bar. Wetherington never informed any supervisors of this sudden realization. When later confronted by his supervisors on the issue, Wetherington admitted that the hat did not blow off of his head, but blew off of the light bar.

The Court found that Wetherington’s conduct did support a charge of untruthfulness. Where the Court balked was as finding that the charge warranted termination.

The Court found important that “when Wetherington’s superiors confronted him about the inconsistency between his answers and the hat’s condition, Wetherington broke down in tears and said he wasn’t sure what happened to his hat. He didn’t know if it was on the trunk lid of the stopped truck, the boat, or behind the light bar, and blew off. Wetherington indicated he was worried about the consequences of conducting a traffic stop without wearing his hat, having been reprimanded in the past for failure to wear his hat during a traffic stop.

“The Patrol contends that from this point forward, in every criminal case in which Wetherington is associated, the judicial finding of untruthfulness here and the facts supporting that conclusion must be disclosed to the defendant, citing Brady v. Maryland, 373 U.S. 83 (1063). However, the Patrol cites no case to this Court in which the State was required to disclose to a criminal defendant findings of an officer’s untruthfulness. Assuming arguendo, without deciding that the State must disclose to future criminal defendants the finding of Wetherington’s untruthfulness, the Patrol’s contention is not entirely accurate.

“Wetherington is not barred from testifying in court. The Patrol’s argument depends upon at least two assumptions that the Patrol does not address: (1) That defense counsel will elect to impeach Wetherington using the finding; and (2) that defense counsel’s impeachment will necessarily influence a jury to the point that a jury will disregard the entirety of Wetherington’s testimony. The possibility of impeachment and the possibility of the impeachment’s success must both occur in order to diminish Wetherington’s performance of the duty to testify successfully. The Patrol presents no argument that the likelihood of the two possibilities justifies dismissal.

“The Patrol concedes that a trooper is not always the sole witness to a violation of the law. The Patrol points to no other essential job duties that the finding of untruthfulness would diminish or impair. Thus, excepting the above possibilities which may diminish Wetherington’s performance of the duty to testify successfully, Wetherington can fulfill the duties of his office in all other respects, despite the existence of this finding.

“The dismissal of Wetherington did not fit the violation and was not necessary to uphold the integrity of the truthfulness policy. In short, the punishment did not fit the offense.”

Wetherington v. N.C. Department of Crime Control & Public Safety, 752 S.E.2d 511 (N.C. App. 2013).