Police officers consider “Brady cop” a bad word.  

I represented law enforcement officers in my legal career, and I sued a couple as well.  

“Brady cop” was never intended to be a label, and it can affect an officer’s career. At the same time, officers hold great sway with juries who expect that they are professional. So, the defense has a right to raise legitimate questions about an officer’s credibility. The defense can’t do that if it doesn’t know about the information in question. Again, under the Supreme Court decision in Brady, the prosecution is required to provide information that favors the defense in the specific case, including information relevant to an officer’s honesty. 

Mineral County is embroiled in two lawsuits involving Brady. How did that happen? 

Last week’s column explained how the court issued a writ of mandamus ordering the Mineral County attorney to conduct an audit of Brady disclosures in recent closed cases as well as open cases to ensure information was provided to defendants as required by law. [Argh! It was Harry Peterson, not Harry Anderson, the actor, who patrolled our streets. Knew better. My apology for the error in last week’s column.] 

The petitioners and the county entered into a settlement agreement to carry out the court’s order. 

The second suit by Sheriff Ryan Funke arose out of a controversial provision in the settlement, which allowed for commissioner involvement in the hiring of deputies. The commissioners could object to a hiring and explain why the candidate was unfit or unqualified. If the sheriff disagreed, the agreement then called for an informal discussion aimed at resolving the issue. If no resolution, the county is to file an action asking the court to resolve the issue. 

The supervisor appointed by the court recommended this provision be eliminated. Whether rewriting the agreement by eliminating the provision is properly before the court seems an open question. 

The rub came when the newly elected Funke gave notice he was going to rehire Micah Allard, who was fired by the former sheriff for allegedly missing a mandatory training meeting and then not being honest about it.   

Pleadings in the record contend Allard did not know it was mandatory. The commissioners objected to the hiring, an informal discussion held with no resolution. The county did not file an action with the court as required, but refused to complete the hiring process for Allard for months. Allard is reportedly now with the department.   

Now, information regarding the sheriff’s past employment has also become involved in the case as well. Allard entered into a settlement agreement with Mineral County and Funke with Lake County, that precluded their former employers from releasing certain information, apparently including allegations against the officers. These non-disclosure provisions have now become key issues in both cases.   

A natural tension exists in my experience between officers and prosecutors. Officers are frustrated when they see the effects of a crime on the ground, only to have prosecutors say there are legal problems with the case. Or prosecutors become frustrated when officers seem not to understand that they have to stand up in front of a judge and jury and make the case, despite legal obstacles. 

Brady can serve to exacerbate the tension, especially when it involves alleged violation of internal personnel policies. Officers say violations can be motivated by internal politics and how rules are applied is often subjective. The paperwork generated by such internal disputes do not show that an officer has a “character for untruthfulness,” requiring disclosure under Brady, they argue.  

Brady requires information to be provided to the defense, but that does not mean the information may be heard by a jury. The evidence still must be admissible under the court rules. So, prosecutors see little value in failing to hand over information that might be covered by Brady. Especially, when such a failure could lead to a conviction being overturned and a perpetrator to go free. Also, remember here that prosecutors are under the court’s microscope. 

Motions in each of our two cases deal with the non-disclosure provisions.  

In his lawsuit, the sheriff alleges that the county commissioners breached the settlement agreement and asked the court to order Allard’s hiring. The complaint criticizes the county attorney for allegedly refusing to obtain a court determination on Allard’s hiring as required in the agreement. 

The county attorney has now filed a motion in the sheriff’s case to void the non-disclosure agreements. Thus, the county attorney and resource officer can evaluate the information relative to a request by defendants for Brady disclosures in cases involving Funke and Allard, and potentially disclose the information to defense counsel. 

In the original case, attorney Lance Jasper has filed a motion to compel to produce “any and all documentation they believe constitute” Brady information as it relates to Funke and Allard. Jasper tells the court that the county attorney “absolutely refuses to produce the alleged Brady information,” preventing the petitioners from determining whether the county is in violation of the writ of mandamus that set these events into motion. 

According to media reports, Jasper argued in a recent hearing that the county attorney is retaliating against Funke and Allard because of their relationship to him. I could not find a pleading detailing the allegation. Researching cases here can be a challenge as there is not a public terminal in the District Court clerk’s office where you can read pleadings. Deputy clerk Keanan Taylor was extremely helpful in helping me to identify documents that I wanted to review.  

Jasper argues in his motion that if the county attorney has information that it believes qualifies under Brady that the office needs to, so to speak, put up and or shut up. He writes in his motion that “there could be no settlement agreement” he could think of which would contain information which would show Funke or Allard “are unfit to be law enforcement officers.” If the county attorney’s office disagrees, then produce the information.  

The county attorney argues in its pleadings that information may trigger Brady disclosures, not that it would make the two unfit to be officers. The original court order specifically requires an audit of Brady disclosures in closed and open cases, specifically including those involving three deputies, but does not talk specifically about unfit/unqualified officers. That came out of the ensuing settlement agreement.

The county attorney has reportedly obtained information regarding Funke from his former employer in response to a subpoena issued in the sheriff’s case. The county has asked in its arguments in both cases that the court rule a defendant’s constitutional right to have potentially favorable information trumps the nondisclosure provisions. Without such approval from the court, the office argues it cannot release the information sought by Jasper’s motion to compel.  

The issue appears now squarely before the court, which must weigh the right of privacy of the officers against the right of the accused to information that may help obtain a not guilty verdict. 

More about the applicable law and the evidence provided by the county attorney in support of its motion to nix the non-disclosure agreements in the next column.