5 April 2024 Steven Zimmerman, Reporter

We have received many questions about Brady lists, both from the public and officers within more than a few police departments.

Brady list is a list compiled usually by a prosecutor’s office or a police department containing the names and details of law enforcement officers who have sustained incidents of untruthfulness, criminal convictions, candor issues, or some other type of issue that has placed their credibility into question.

How do you end up on the Brady list?

Peace officers accused of acts of moral turpitude, inappropriate conduct, or integrity concerns beyond mere speculation can find their names placed on the Brady list. The threshold for issuance of a Brady letter is much lower than the probable cause or preponderance of the evidence standard.

The Brady list stems from the case Brady v Maryland.

Under the Constitution, due process requires the prosecution to turn over evidence favorable to the accused and material to his guilt or punishment. This requirement includes evidence that may be used to impeach witnesses for the prosecution, including police officers.

For the purposes of Brady, officers and the agencies they work for are considered part of the prosecution team. This means the police are required to inform the prosecutor of evidence that may be favorable to the accused.

Under the Brady rule, the defense has a right to know if an officer has issues affecting their credibility.  

Many prosecutors like to forego disclosing information about the reliability of officers and then later claim “harmless error” standard. Harmless error does not apply under Brady.

According to Kyles v Whitley, the prosecutor has a duty to inform others acting on behalf of the government, including police officers and detectives, of any favorable evidence.

• Brady v Maryland, 373 U.S. 83 (1963)
• United States v. Giglio, 405 U.S. 150 (1972)
• U.S. v. Bagley, 473 U.S. 667 (1985)
• Kyles v. Whitley, 514 U.S. 419 (1995)
• Strickler v. Green, 527 U.S. 263 (1999)

Some examples of these cases being put into practice would be:

• The government’s obligation to disclose favorable evidence under Brady covers not only material exculpatory evidence but also information that could impeach government witnesses
• Agreements exchanging testimony for money or favorable treatment
• The fact the witness suffers from hallucinations
• Efforts by one witness to improperly influence the testimony of other witnesses
• History of untruthfulness
• Other conflicting statements made by witnesses
• Prior inconsistent statements of key witnesses
• Government witnesses had previously filed a false report
• Information undermining the credibility of witness identification of the defendant
• Doctor’s report following an autopsy which conflicts with later trial testimony

Let’s use an example from some of the articles we’ve written.

Let’s say an officer, Sgt. John Chavez, is pulled over for speeding, and during the encounter it is discovered that the officer is driving while under the influence of alcohol. This can speak to the officer who has impaired judgment before the first drink in believing that they can drive home while inebriated or that if they are pulled over, they would be offered some courtesy from fellow officers.

Later, Sgt. Chavez, while riding a desk, must testify against a suspect he arrested for DWI. During the officer’s testimony, the prosecutor will ask him questions that may include “in your best judgment.”

The officer’s arrest for DWI raises questions about his judgment. That is information a defense attorney needs to know.

While writing for the El Paso Herald-Post, I attempted to FOIA the Brady list from the District Attorney, the City of El Paso, the El Paso Police Department, and the County of El Paso. My requests were met with a basic “that there are no responsive documents to answer your question.  Per the TPIA, we are not required to prepare answers to questions to suffice a request.”

We are making yet another request.

The officers we’ve written about—officers who have been arrested, charged with a crime, or outright lied—belong on the Brady list. El Paso, however, seems not to have one.

Sgt. Smith, the officer involved in the fatal shooting of Michael Anthony Estrada, should be on the Brady list for his actions in 2016.

“SWAT was called on Smith,” says an Officer with the El Paso Police Department. “He was threatening to harm fellow officers. He was taken in on an EDO (Emergency Detention Order) because of what happened.”

Sgt John Chavez, arrested for two DWIs, should be on the Brady list. Even though he’s not yet been convicted, his arrest speaks to his integrity and ability to keep the law he’s sworn to uphold.

Officer Jessica Grijalva, who is soon to be promoted to Lieutenant, should be on the list because of her DWI arrest. Even though she took a pretrial diversion program that mercenarily erased her arrest and booking information, she should be on the list.  

Lt. John Surface, who was accused of sexual harassment and charged with official oppression, even though the El Paso Police Department and the District Attorney’s office do not have the spine to prosecute a police officer, should be on the Brady list.

An interesting fact is that those who engage in sexual harassment will do it again.

Sgt. Adan Chavez, another officer charged with Lt. John Surface, should be on the Brady list.

Sgt. Chaves’s criminal case (Case No. 2023-PFILE09137) is also listed as inactive. It seems the El Paso Police Department believes in “rules for thee, not for me.”

Public Information Officer Sgt. Robert Gomez should be on the Brady list for Dereliction of Duty – failure to obey an order.

CIT Officer Perez should be on the list for not acting within his capacity in a recent incident we shared with our readers. According to statements made by the PIO in other cases, Perez is specifically trained to handle situations involving hostages or mental health crises. Instead, he hid in the bushes.

The Chief of Police, Peter Pacillas, should be on the Brady list for agreeing to have a training directive issued, claiming that a directive issued on 29 March is effective 7 February 2024.

We could name other officers, but they will be featured in their articles.

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Understand, I am not anti-police. I support the men and women who wear the badge. These officers put their lives on the line daily in an otherwise thankless profession. I cannot stand officers who use the badge as a power trip to feed their egos. We need to remove those officers from the department. We will make that happen with the help of those officers and detectives who have come forward.

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El Paso Police Department is not in compliance with the nationwide, public-facing, platform of record: The Brady List; or:

• Supreme Court of the United States [SCOTUS] Brady doctrine (1963);
• US Freedom of Information Act (1967);
• State Sunshine Law (see, below); 
• Open Government Act (2007);
• Open Government Initiative (2009); and,
• Open Government Directives (2009) issued by the United States Department of Justice.

Prosecutors have ethical obligations and may be held individually accountable for their conduct within the legal system. Prosecutors contribute to just and honorable legal profession and a legal system that promotes fairness and accountability.

• R.P.C. 3.4: Fairness to Opposing Party & Counsel
• R.P.C. 3.8: Special Responsibilities of the Prosecutor
• R.P.C. 8.3: Reporting Professional Misconduct

Violations of these rules can result in disciplinary actions which may include sanctions, suspension, or disbarment.

This information has been curated by journalists and private citizens; and, this platform is available as-a-service to all Peace Officer Standards & Training [POST] Departments, Prosecutors, and Law Enforcement Organizations [LEOrgs].