Policy to ban unreliable cops in court drags
Orange-Osceola state attorney’s plan to limit testifying announced in July
State Attorney Aramis Ayala last July announced a new policy that quickly drew the ire of law enforcement agencies in the Orange-Osceola circuit: The creation of Brady lists, which would identify local cops with questionable credibility or considered too untrustworthy to testify in court.
Nearly seven months later, no such list has been produced by the State Attorney’s Office. And with Ayala not seeking a second term in November’s election, it remains to be seen whether the policy will continue under her successor. Two of the four declared candidates told the Orlando Sentinel they would eliminate or significantly roll back the program, even though it hasn’t gotten off the ground.
In an interview this month, Ayala said the list would be finished by the end of March, explaining her office “didn’t realize it would be as complicated as it actually was” to create a database of officers and other state witnesses whose conduct has raised concerns.
“One thing I want to make clear is that we are not just creating a list,” Ayala said. “We are creating a system … that is going to help us track it, identify and most importantly … to be able to have a system in our case management system that allows [prosecutors] to see it
right off the bat.”
Under Ayala’s policy, a committee within her office will be tasked with reviewing information on potentially unreliable state witnesses — including law enforcement officers and forensics experts — who could then be added to one of two lists.
If a witness is placed on the “alert” list, prosecutors handling any cases that involve that witness will be “directed to proceed with caution or may even need permission to prosecute the witness’ case,” Ayala said in a July press release. Witnesses who land on the “exclusion” list would be prohibited from testifying.
The Brady policy is named after Brady v. Maryland, a 1963 U.S. Supreme Court decision that requires prosecutors to provide all potentially exculpatory evidence to the defense in criminal cases. Ayala’s committee includes the director of her Conviction Integrity Unit, Cynthia Schmidt; Chief Investigator Eric Edwards; Felony Bureau Chief Mark Wixtrom; and Chief Assistant State Attorney Deborah Barra.
Ayala said they have met about nine times since July, but have not begun adding witnesses to lists.
As with other reforms Ayala has enacted, such as a bail relief policy for some nonviolent offenders and the Conviction Integrity Unit, the future of the Brady policy could be in jeopardy when voters go to the polls later this year.
One of the four candidates running for state attorney, Kevin Morenski, said Ayala’s policy would “cease to exist on my first day in office.” The sole Republican running in the Democrat-heavy circuit, Morenski vowed he “would never blacklist officers, who are committed by their oath to protect and serve our community and routinely put themselves in harms way to protect us.”
Belvin Perry, a former Orange-Osceola chief judge who announced his bid for State Attorney as a Democrat earlier this month, called it “dangerous to label someone unreliable,” and said Ayala’s policy wouldn’t exist “in that form” if he were to take the helm of the agency in January.
The other two Democrats running — prosecutor Ryan Williams and Barra — said they would maintain a version of the Brady list.
“I support the creation and the concept of a list, but it would have to be fair,” Williams said.
Williams said Ayala’s policy in its current form lacks due process for officers. He said he would change the makeup of the Brady committee to include people independent of the State Attorney’s Office. Williams also said Ayala’s policy lacks detailed criteria for how committee members file witnesses into alert or exclusion lists.
Barra said she “absolutely” supports a Brady list, which she described as a valuable tool for prosecutors, letting them know when to apply extra diligence to checking an officer’s body camera footage or charging affidavit. But she said she’d be “very concerned” about banning an officer from testifying, because that could put a case involving that officer in jeopardy and “bring harm to victims of a crime.”
If no other candidates enter the race, voters will choose among Williams, Barra and Perry in the Aug. 18 primary, with the winner facing Morenski in the Nov. 3 general election.
The Brady policy has drawn resistance from law enforcement officials, who say creating a list deprives officers of due process and risks prosecutors losing provable cases by not allowing them to testify.
After Ayala announced the policy, the Orange-Osceola Police Chiefs Association, which represents 15 agencies, sent her a letter objecting: “There is no need, in our opinion, to label our officers as ‘untrustworthy’ without proper due process.”
In the letter, the group argued that its agencies already comply with the legal obligations established by Brady v. Maryland, by providing notice to the State Attorney’s Office when pertinent information about its officers needs to be disclosed.
While agencies do typically give notice if an officer is facing or has previously faced criminal charges, Ayala said her office isn’t told regularly about officers who are subjects of internal investigations that call their credibility into question.
In a memorandum of understanding that Ayala sent to the law enforcement agencies after announcing the policy, she listed the type of information the agencies should disclose to her office, which included accusations against an officer of bias, corruption or abuse of authority.
Other information, such as “any incidents of failed proficiency tests, formal write-ups or errors in work or mishandling of evidence, or other findings of misconduct related to the employee’s work” should also be disclosed, the agreement states.
No agencies in Orange or Osceola counties have signed the memorandum.
In a September letter to Ayala declining to sign, Orange County Sheriff John Mina said his agency “has always complied with the law regarding Brady disclosures” and will continue to do so.
Between last July and mid-February, there were 21 cases in which a Brady notice was filed by Ayala’s office in Orange and Osceola counties, some of those alerting defense lawyers to potential issues with an officer or deputy, such as a previous arrest, records obtained through a public records request shows.
Barra said those disclosures are currently filed on a case-by-case basis and aren’t stored long-term. The Brady database will host that information in an easily accessible format, she said.
“The key is to create this extremely thorough system that I’m hoping will last into years,” Ayala said.