Prosecutor Allowed To Disclose Brady Information To Chief

This article appears in the December 2020 issue of our monthly newsletter, Public Safety Labor News.

Two unnamed officers of the Fall River Police Department in Massachusetts were present when fellow officer Michael Pessoa used force while arresting an individual on February 12, 2019. Pessoa submitted an arrest report; the officers did not. A few hours after the incident, the officers were ordered by their superiors to each complete the Department’s “Use of Defensive Tactics Report” because the arrestee was observed to have a bloody lip while being booked at the police station.

Each of the officers executed a use-of-force report that, in essence, adopted Pessoa’s version of events as set forth in his incident report – that the arrestee was noncompliant, threatened to punch the officers, and was then taken to the ground by Pessoa in making the arrest.

After the arrestee was charged with various offenses, including resisting arrest, his defense attorney provided the district attorney with a videotape of surveillance footage that showed the arrest and Pessoa’s use of force on the arrestee. The footage of the incident was inconsistent with the descriptions the officers provided in their use-of-force reports and showed that the arrestee was physically compliant when one of the officers removed his handcuffs, and that Pessoa then struck the arrestee on the left side of his head and shoulder area, causing the arrestee “to be taken to the ground in a violent manner.”

Prompted by the videotape, the district attorney initiated a criminal investigation into Pessoa’s conduct. The investigation resulted in a grand jury returning 15 indictments against Pessoa for crimes involving four separate arrestees, including charges for assault and battery by means of a dangerous weapon causing serious bodily injury, assault and battery, civil rights violations, witness intimidation, filing false police reports, and malicious destruction of property.

During the criminal investigation of Pessoa, the district attorney subpoenaed the other two officers to testify before the grand jury. Each officer asserted his privilege against self-incrimination.

The district attorney then filed two motions in the superior court. In the first motion, the district attorney sought authority to disclose information from the grand jury testimony to defense counsel for criminal defendants in cases unrelated to the prosecution of Pessoa where either of the officers was “a potential witness,” asserting that he was obligated to make such disclosures under Brady v. Maryland. In the second motion, the district attorney sought an order authorizing the disclosure of information concerning the officers’ grand jury testimony to the Fall River Police Department.

The Massachusetts Supreme Judicial Court held that the district attorney should be allowed to make the disclosures even without prior court approval.

The Court reasoned that “where a prosecutor determines that a potential police witness lied to conceal a police officer’s unlawful use of excessive force, or lied about a defendant’s conduct and thereby allowed a false or inflated criminal charge to be prosecuted, the prosecutor’s obligation to disclose exculpatory information requires that the information be disclosed to defense counsel in any case where the officer is a potential witness or prepared a report in the criminal investigation.

“Where this disclosure must be made to defense counsel, it must also be made to the police chief of the department because the consequence of such disclosure is to jeopardize or, at a minimum, complicate the successful prosecution of any criminal case where the police officer played a significant role. It would make no sense for the prosecutor and defense counsel to possess this information, and for the police chief to be deprived of the same information.

“The police chief needs this information to determine whether to fire or otherwise discipline the officer, place the officer on desk duty, or take other steps to ensure the integrity of the department and its criminal cases. Because the disclosure of this information arises from the prosecutor’s Brady obligation, no prior judicial approval is required to make this disclosure, even if it arises from immunized grand jury testimony.

“If, however, other police misconduct is revealed through a grand jury investigation that does not require the prosecutor under his or her Brady obligation to disclose the misconduct to defense counsel in any case where the officer is a potential witness or prepared a report in the criminal investigation, prior judicial approval should be obtained before this grand jury information may be revealed to the officer’s police chief.”

In re Grand Jury Investigation, 485 Mass. 641 (Mass. 2020).

Also in the December 2020 issue:

  • Reporting Corruption Not Protected By First Amendment
  • Reprimand Not Sufficiently ‘Adverse’ To Support Discrimination Suit
  • Pregnancy And Light-Duty Work
  • Silence Is Not Acceptance Of A 15-Day Suspension
  • Discipline Settlement Agreement Not A Public Record
  • Irritation Does Not Equal Political Retaliation
  • Prosecutor Shielded From Officers’ Suit By Qualified Immunity
  • Court Upholds Arbitrator’s Opinion Reinstating Officer
  • The Need For Very Close ‘Comparators’ In Discrimination Cases
  • Qualified Immunity Bars Dispatcher’s Second Amendment Claim
  • Disability Retirement Precludes Civil Service Appeal Of Discharge
  • Q & A
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