Lawyers, ac­tivists call for trans­parency on po­lice cred­i­bil­ity

If of­fi­cers can’t be trusted, they end up on a list. But in Philadel­phia, else­where, de­bate rages over whether that should re­main se­cret

The Morning Call - - STATE NEWS - By Michael Casey

BOS­TON — Dur­ing the 22 years he spent in prison af­ter be­ing con­victed of killing a Bos­ton po­lice de­tec­tive, Sean El­lis be­lieved there was some­thing sus­pi­cious about the of­fi­cers who led the mur­der in­ves­ti­ga­tion. He just couldn’t prove it.

It would take years of dig­ging and scores of pub­lic in­for­ma­tion re­quests from his at­tor­neys to un­cover ev­i­dence that sev­eral of­fi­cers in­ves­ti­gat­ing the 1993 mur­der case were in­volved in crim­i­nal ac­tiv­ity — in­for­ma­tion that wasn’t shared with the de­fense.

A Su­pe­rior Court judge in 2015 or­dered a new trial for El­lis and his mur­der charges were later dis­missed.

De­fense at­tor­neys have long run up against a brick wall when try­ing to dis­cover whether an of­fi­cer has cred­i­bil­ity is­sues that could set their client free.

But the case of El­lis and more re­cently, Philadel­phia rap­per Meek Mill , born Robert Wil­liams, is fu­el­ing calls among civil lib­erty groups and re­for­m­minded district at­tor­neys to make the sys­tem more trans­par­ent. It is part of a larger call to ad­dress crim­i­nal jus­tice re­form at a time of grow­ing anger over po­lice shoot­ings and wrong­ful con­vic­tions of­ten in­volv­ing African Amer­i­cans.

Five years af­ter protests that erupted in Fer­gu­son, Mis­souri, over the fa­tal shoot­ing of un­armed teenager Michael Brown, ac­tivists have been push­ing pros­e­cu­tors to cre­ate lists of prob­lem po­lice of­fi­cers, limit the use of the of­fi­cers on them and re­view cases these of­fi­cers worked to de­ter­mine whether cases should be dropped or if de­fen­dants should be ex­on­er­ated.

“In ad­di­tion to charges, this is the other thing that pros­e­cu­tors can be do­ing — mak­ing it very hard for of­fi­cers to en­gage in the kind of con­duct that should lead to them be­ing fired,” said Scott Roberts, the se­nior di­rec­tor of crim­i­nal jus­tice campaigns for Color of Change , an on­line racial jus­tice or­ga­ni­za­tion, which is call­ing for pros­e­cu­tors na­tion­wide to cre­ate lists.

The Supreme Court ruled that pros­e­cu­tors have a con­sti­tu­tional re­spon­si­bil­ity to share in­for­ma­tion fa­vor­able to the de­fense, in­clud­ing law en­force­ment of­fi­cers with cred­i­bil­ity is­sues. It is of­ten called the Brady rule.

Wrong­do­ings that can land an of­fi­cer on a so-called Brady list or data­base in­clude ly­ing on a po­lice re­port, ex­ces­sive force, big­oted com­ments or crimes such as drunken driv­ing or do­mes­tic vi­o­lence. Some lists also in­clude of­fi­cers un­der in­ves­ti­ga­tion, though they could be re­moved if the al­le­ga­tion is dis­missed. Others have ex­panded the list to in­clude lab tech­ni­cians and others who might tes­tify on the gov­ern­ment’s be­half.

With no clear guid­ance from the courts on how that in­for­ma­tion should be shared, crit­ics have chided pros­e­cu­tors for fail­ing to keep track of prob­lem of­fi­cers and go­ing out of their way to keep in­for­ma­tion from the de­fense — ei­ther by fail­ing to dis­close the de­tails about the of­fi­cer, choos­ing not to put the of­fi­cer on the stand or drop­ping a case al­to­gether. Crim­i­nal jus­tice ad­vo­cates said the Brady rule vi­o­la­tions have long been a prob­lem and con­tinue to pose a risk to in­no­cent de­fen­dants.

“It’s a se­ri­ous is­sue,” said Sa­muel Gross, the founder and se­nior ed­i­tor of Na­tional Reg­istry of Ex­on­er­a­tions which has tracked 2,472 ex­on­er­a­tions, mostly due to Brady vi­o­la­tions. “We know from re­peated scan­dals that there are a substantia­l num­ber of of­fi­cers who have en­gaged in con­certed pat­terns of abuse and done dread­ful things.”

In July, a Pennsylvan­ia ap­peals court over­turned Mill’s decade-old con­vic­tion on a drug and gun case over ques­tions about the ar­rest­ing of­fi­cer’s cred­i­bil­ity. Mill pleaded guilty this week to a mis­de­meanor gun charge in a deal that ends the le­gal limbo sur­round­ing the 2007 ar­rest.

Sev­eral district at­tor­neys have made these lists or data­bases cen­tral to their agen­das while law­suits in sev­eral states call for the list to be pub­lic.

In Philadel­phia, District At­tor­ney Larry Kras­ner, who was a de­fense at­tor­ney for 25 years, said he didn’t know a list ex­isted when he took of­fice. Kras­ner said there was no ef­fort in the past to share the list of names — filed away un­der the name Dam­aged Goods — with de­fense at­tor­neys. Kras­ner took over a list with less than 100 of­fi­cers and cre­ated a larger data­base in which au­to­matic no­ti­fi­ca­tions go out when a case in­volves a prob­lem of­fi­cer. The list could be ex­panded to in­clude of­fi­cers ac­cused of mak­ing racist and vi­o­lent so­cial me­dia posts.

Kras­ner doesn’t think any­one the list should be on the force, but he’s only lim­ited to con­trol their par­tic­i­pa­tion in cases.

“It is a po­si­tion of pub­lic trust and peo­ple who are on that force may be called as wit­nesses in crim­i­nal mat­ters,” he said. “It sim­ply doesn’t make sense for the pub­lic to fund peo­ple who are in­ca­pable of do­ing the work.”

St. Louis Circuit At­tor­ney Kim­berly Gard­ner for­mal­ized an “ex­clu­sion list” with 58 names in­clud­ing nearly two dozen of­fi­cers found to have writ­ten racists so­cial me­dia posts. Her of­fice has also dis­missed about 100 cases in­volv­ing of­fi­cers with cred­i­bil­ity is­sues and ruled of­fi­cers on the list may not be al­lowed to tes­tify at tri­als or sub­mit a case to her of­fice.

“Peo­ple want fair­ness and jus­tice for all,” Gard­ner said. “No one wants to pick and choose when an of­fi­cer de­cides to be cred­i­ble. What is at stake is the whole crim­i­nal jus­tice sys­tem.”

Kim Ogg, district at­tor­ney of Har­ris County, which cov­ers Hous­ton, has for­mal­ized a sys­tem for its dis­clo­sure data­base that now in­cludes 1,593 names go­ing back to the 1980s — and al­lows a judge to de­cide if dis­clo­sure is nec­es­sary. Ogg’s of­fice has dis­missed 27 cases and is re­view­ing 1,400 other con­vic­tions af­ter cred­i­bil­ity is­sues emerged re­gard­ing one of the of­fi­cers in a deadly drug raid. Pros­e­cu­tors say the probe has grown to 14,000 cases.

“Every wit­nesses’ bias and cred­i­bil­ity can be tested and po­lice of­fi­cers are no ex­cep­tion,” she said. “The idea is that the law is ap­plied equally to ev­ery­one.”

Po­lice unions have re­sponded to the lists with law­suits and lob­by­ing to pre­vent the re­lease of the names or limit their use by pros­e­cu­tors.

“It’s unfair and im­proper to ar­bi­trar­ily add of­fi­cers to this list with­out some fair and bal­anced pro­to­col,” John McNesby, pres­i­dent of the Philadel­phia po­lice union, said in a state­ment. “It’s dam­ag­ing to of­fi­cers’ rep­u­ta­tions and liveli­hood.”

Many state laws pre­vent the data from be­ing made pub­lic be­cause it in­volves of­fi­cers’ per­sonal in­for­ma­tion. Some data­bases also in­clude unredacted crim­i­nal in­ves­tiga­tive ma­te­rial that is not sub­ject to pub­lic in­for­ma­tion laws. Law­suits de­mand­ing the list be made pub­lic have been filed in New York and New Hamp­shire.

“De­fen­dants have no idea whether pros­e­cu­tors are mak­ing dis­clo­sure they need. De­fen­dants have no idea whether po­lice chiefs are send­ing the right names over to pros­e­cu­tors,” said Gilles Bis­son­nette, the state le­gal di­rec­tor for the Amer­i­can Civil Lib­er­ties Union.

Har­ris County and St. Louis have re­fused to re­lease the names, as does Philadel­phia.

But ad­vo­cates for pub­li­ciz­ing the po­lice data have scored sev­eral le­gal vic­to­ries of late.

A court in Philadel­phia or­dered Kras­ner last year to turn over the names from the pre­vi­ous list to an as­so­ci­a­tion of pub­lic de­fend­ers. And in New Hamp­shire, the ACLU and sev­eral me­dia out­lets suc­cess­fully sued the state to have the list of 260 of­fi­cers re­leased. The state’s at­tor­ney gen­eral’s of­fice has ap­pealed the rul­ing to the New Hamp­shire Supreme Court.

The Cal­i­for­nia Supreme Court last week ruled that a sus­pect’s right to a fair trial out­weighs the pri­vacy rights of of­fi­cers who might have a his­tory of bad be­hav­ior. Jus­tices re­jected a lower court rul­ing that barred the Los An­ge­les County Sher­iff’s De­part­ment from giv­ing pros­e­cu­tors the names of deputies ac­cused of im­proper con­duct.

For El­lis, the de­bate over these lists comes too late.

Suf­folk County pros­e­cu­tors didn’t keep a list of of­fi­cers’ names when El­lis was con­victed in the killing of de­tec­tive John Mul­li­gan. It was cre­ated in 2013.

El­lis said he be­lieves he wouldn’t have gone on trial if his de­fense team had known about the of­fi­cers, sev­eral of whom pleaded guilty to fed­eral con­spir­acy, civil rights and tax vi­o­la­tions. Judge Carol Ball con­cluded that El­lis’ ar­rest was a rush to judg­ment based on an in­ad­e­quate po­lice in­ves­ti­ga­tion.

“I knew that this wasn’t right be­cause I knew I didn’t do what I was ac­cused of,” said El­lis, 45, who was sen­tenced to life af­ter two mis­tri­als.

He might have gone to col­lege or been able to at­tend his fa­ther’s fu­neral. He would’ve been with his mother as she bat­tled can­cer. In­stead, he was de­nied a re­quest to go to his dad’s fu­neral.

He now lives with his mom and sis­ter in Mas­sachusetts and works as an ad­min­is­tra­tive as­sis­tant earn­ing $15 per hour.

“It’s like I lost my life,” El­lis said. “I went in as a teenager and here I am get­ting out as a 41-year-old. I don’t be­lieve what hap­pened to me hap­pens in a vac­uum. I be­lieve it’s com­mon place. It’s the way the sys­tem works.”

As­so­ci­ated Press writer Jake Bleiberg con­trib­uted to this re­port from Dal­las.

CHARLES KRUPA/AP

“It’s like I lost my life,” Sean El­lis said. “I went in as a teenager and here I am get­ting out as a 41-year-old.” El­lis was con­victed of killing a Bos­ton po­lice de­tec­tive. He was freed when it was learned sev­eral of­fi­cers who in­ves­ti­gated the case were in­volved in crim­i­nal ac­tiv­ity, in­for­ma­tion that was never told to his de­fense lawyers.

JES­SICA GRIFFIN/AP

Rap­per Meek Mill ges­tures at the crowd Tues­day out­side the Crim­i­nal Jus­tice Cen­ter in Cen­ter City Philadel­phia. Mill pleaded guilty to a 2007 mis­de­meanor gun charge and won’t serve ad­di­tional time in prison af­ter reach­ing a plea agree­ment in a case that’s kept him on pro­ba­tion for most of his adult life.

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