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Understanding Giglio - The "Death Letter" For A Law Enforcement Officer's Career

 

By Rick Tullis, Division Board Member, Mtn. Chapter President

 

 

We have all heard the line, "If you are reading this, it's too late." Sadly, this is the reality for too many officers confronted with Brady/Giglio allegations.

 

It is safe to say that most law enforcement officers have heard the terms "Brady" or "Giglio," but a large percentage are uninformed about the potential impact these terms can have on their careers. Way too often, when an officer becomes aware of the ramifications of a Brady or Giglio letter, it is too late for them to take any meaningful steps to defend themselves against the allegation. Our goal is to provide officers with a basic understanding of these terms, how they can potentially impact the officer and what the NCPBA is doing to address this issue for law enforcement personnel in North Carolina.

 

In the 1963 Brady v. Maryland case, the Supreme Court held that prosecutors must disclose any exculpatory evidence to the accused material to his guilt or punishment.  Subsequently, in the 1972 Giglio v. United States case, the court held that exculpatory evidence also includes information that can be used to impeach the credibility of prosecution witnesses, including police officers.

 

In the ensuing 50 years, prosecutors have been left to determine under their discretion what rises to the level of a Brady (failure to disclose exculpatory material) or Giglio (truthfulness) violation.  Once they determine a violation has occurred, some choose to notify directly or provide letters to the defense each time an officer appears on a witness list. Some district attorneys create and maintain a "blacklisted" officers database periodically provided to media and the public. 

 

Attorney Val Van Brocklin listed some examples of officer's conduct that resulted in a determination of a Giglio violation in her Jan. 28, 2019, article in Police 1 magazine.  Van Brocklin describes an officer falling asleep on duty, missing a dispatcher's call and blaming it on a stuck microphone. Another example is an officer telling dispatch they were out-of-service and unavailable when it was almost the end of the shift and the officer did not want to miss their daughter's basketball game. While these officers should have handled these situations differently, these are not cases where they should lose their careers.

 

Further and most importantly, such cases are antithetical to the Giglio Doctrine which specifies that alleged untruthful conduct must be material to a specific case.  Thus, Giglio matters were never to be confused with the kind of administrative misconduct as described in Van Brocklin’s article. Ironically, after more than five decades of this rarely-used process quixotic to most police administrations, the current anti-police toxic political climate has compelled all too many of today’s chiefs, sheriffs, prosecutors and some judges to not only misapply Giglio, but blatantly abuse it.

 

In a February 2019 Police 1 article, Van Brocklin lists cases from around the country for which officers allege prosecutors have Brady listed them. 

These situations are:

 

  • Criticizing the district attorney in the newspaper
  • Supporting the wrong candidate in the district attorney's race
  • Investigating corruption within the prosecutor's staff
  • Providing truthful, but unhelpful to the prosecution, testimony
  • Complaining to city officials about corruption in the police department
  • Failing to apologize to the prosecutor for some perceived slight

 

While every professional police officer stands united in support of removing any bad police officer from the profession, the system is positioned to adversely affect good police officers in profound ways. Under state and federal constitutions, every person you arrest is afforded a minimum, basic standard of due process.  In North Carolina, even individuals accused of low-level misdemeanors are entitled to pre-trial hearings such as first appearances, arraignments, bond hearings, etc. A fundamental precept of our legal system is that issuing a warrant (allegation) is not evidence of guilt, but it is simply the initiation of an administrative process. 

 

For example, you investigate and then provide a probable cause statement (allegation) to a magistrate who then issues the warrant. Legally, the defendant at that point merely stands accused of a crime, and the presumption of innocence until proven guilty attaches.  The defendant is provided access to an attorney, hearings are scheduled and then a trial occurs. 

 

Terrifyingly, the determination to issue a Brady or Giglio letter against an officer lies solely with a select group of people, including judges, district attorneys, assistant district attorneys, police chiefs and sheriffs.  Once the letter (allegation) is filed, you have no right to a hearing, no trial and no opportunity to defend yourself or question the validity of an allegation. You have no due process. The letter's author becomes the investigator, jury and judge that assesses a sentence that will impact you for the rest of your life.

 

Most officers that receive a letter alleging a Brady or Giglio violation will simultaneously see their employment terminated. They will be told that there is no place in the organization for someone untruthful or less than transparent regarding a Brady disclosure. Additionally, there has been a significant push to add Brady/Giglio allegations to forms maintained by the North Carolina Criminal Justice Education and Training Standards Commission. This addition would become a repository where potential employers could contact staff and inquire about whether or not an officer has been accused of a violation. If the Giglio/Brady box is checked, the employer would be inclined to move on to the next candidate.

 

The NCPBA views the lack of binding due process regarding Giglio/Brady allegations as  Giglio is becoming the preeminent issue facing law enforcement officers. As such, we have taken an aggressive position to oppose the creation and maintenance of any list until officers are afforded due process, including the opportunity to defend themselves in a court that can issue a binding decision.    

 

The NCPBA educates and asks legislators about their position on this topic during our political screening process. All too often, we learn that legislators are unaware of this issue, and they often express their dismay to screeners. 

 

During the 2016 election cycle, we interviewed candidates on numerous issues and received positive feedback on the question of due process from attorney general candidate Josh Stein. Stein was endorsed by the NCPBA and would go on to become attorney general. 

 

For a number of legislative sessions, the PBA has worked to obtain a seat on the North Carolina Criminal Justice Education and Training Standards Commission as the largest law enforcement association in the state. In 2017, after HB 395 was defeated, the PBA approached Stein and asked if he would appoint a PBA member using his appointment.  He agreed and asked for several resumes of members for review. 

 

Division Secretary and Winston-Salem Triad President David Rose was later chosen, in part, because Stein was impressed with his work on the opioid crisis as a narcotics supervisor with Winston-Salem Police Department. Stein had made this a priority of his administration upon taking office.

 

During Stein's first term, the Attorney General’s Office represented a defendant district attorney in a Giglio case that had landed in the North Carolina Court of Appeals. PBA represented our member, the plaintiff. The Court of Appeals ruled ambiguously in a split vote that left the case eligible for review by the North Carolina Supreme Court.

 

President Randy Byrd, Executive Director John Midgette and PBA counsel met with Stein to implore him to appeal the case to the state Supreme Court in hopes of getting a definitive decision from the state's highest court. Leslie Cooley-Dismukes, who serves as the criminal bureau chief for the North Carolina Department of Justice and ex-officio member for Stein on the North Carolina Criminal Justice Training and Standards Commissions, was also present. Stein intimated that an officer could find due process in their Commission hearing and Cooley-Dismukes championed his position. 

 

The problem with this concept is that the results of a Commission hearing are not binding regarding Giglio/Brady. The hearing authority also pertains only to certification issues, and the hearing happens months or years after the problem arises. Without a clearer ruling from the Supreme Court the PBA could potentially be faced with pursuing civil litigation against a district attorney. 

 

Surprisingly, Stein thought this was a viable option. Several days later, Stein confirmed he would not pursue the case on appeal. Subsequently, the COA’s remand was ignored by the plaintiff/district attorney who immediately “re-Giglioed” our member again and again without any opportunity to be heard.

 

In the Aug. 14-16, 2019, Commission meetings, Cooley-Dismukes, with commissioners Robert Hassell[i] and Eddie Caldwell[ii], began an aggressive campaign to add Giglio disclosures to various Commission forms. Several other reasonable commissioners joined Byrd and Rose in arguing that viable, binding due process should be established before an officer's reputation is destroyed by these allegations being placed on the forms.  The Commission sided with them and rejected the proposal at that time.

 

Not to be dissuaded, the issue would come up again in the Commission's August 12, 2020, Planning and Training Committee meeting. Cooley-Dismukes once again recommended adding the Giglio disclosure to the Commission forms. Commissioner Andy Gregson, the representative from the Conference of District Attorneys, expressed a willingness to meet with stakeholders to determine if a due process framework could be developed before including this information on Commission forms. The committee agreed and denied Cooley-Dismukes's motion. 

 

Not to be deterred, two days later in the full Commission meeting, and despite the motion failing in committee, Hassell employed a seldom-used parliamentary procedure and offered yet another motion to add the Giglio information to Commission forms. The motion failed on a 17-11 vote.  During this same meeting, Rose was sworn in to another three-year term, after being reappointed by Stein.

 

A few days later, the PBA interviewed candidates for attorney general. The candidates were asked specific questions to include Giglio/due process, qualified immunity and police reform. Based on the candidate’s responses in a graded format and the screening committee’s recommendation to the division board, the division board chose to endorse Stein’s opponent. The endorsement was announced in September.

 

In October, Midgette and Rose met with Gregson and other representatives with the Conference of District Attorneys. Gregson demonstrated that he genuinely understands the multi-faceted issues that arise from Giglio/Brady allegations. Gregson committed to present our issues to his organization. He hoped that, at minimum, a “position paper” could be developed recommending that officers be provided with a hearing with the respective district attorney before the issuance of formal Brady/Giglio allegations.

 

Gregson additionally recommended that police chiefs and sheriffs receive training about what conduct rises to the level of a Brady/Giglio violation. The discussions surrounding this are ongoing at the time of this writing. 

 

On Nov. 20, 2020, Stein attended the regular Commission meeting to encourage commissioners to embrace the recommendations of the Governor’s Task Force for Racial Equity in Criminal Justice to be released in December. Stein and Associate Supreme Court Justice Anita Earls had served as co-chairs. A significant part of the report centered on the Commission enacting numerous changes to the criminal justice system through the statutory power invested in the Commission, which fall under the attorney general’s purview. 

 

On Jan. 28, 2021, Stein exercised his authority and removed Rose from the Commission after having appointed him to a second three-year term several months earlier. In this place, he chose to appoint a member of the task force. Byrd spoke with Stein and expressed the NCPBA's disappointment with his decision and how its timing would be detrimental to the progress made regarding Brady/Giglio issues.  

 

Byrd, Midgette, and Staff continued to work on this through the non-partisan PBA legislative process, when the General Assembly came back to Raleigh for the long session.  Because of that process, the PBA has educated even more legislators on why due process is imperative involving Giglio issues. 

 

On Sept. 2, 2021, Gov. Cooper signed into law SB300, a bill sponsored by Sen. Danny Britt Jr. Hailed as a Police Reform Bill, it created requirements that several databases be created and maintained regarding police conduct. Britt met with the PBA to hear and address our concerns. These databases include the mandatory submission and collection of information about critical incidents/uses of force, de-certification and Giglio allegations.  SB300 updates General Statute 17E-16 (h) to require that an officer be noticed appropriately regarding the existence of a Giglio letter.

 

GS 17E-16 (h) reads as follows:

 

(h) Any person who has received a notification that may meet the reporting requirement provided in subsection (a) of this section may apply for a hearing in superior court for a judicial determination of whether or not the person received a notification that the person may not be called to testify at trial based on bias, interest, or lack of credibility.   

 

While this does not represent the meaningful due process that we believe every officer deserves, we see it as a small step in the right direction.  The NCPBA remains on the front lines of the battle to achieve a viable, complete and binding Giglio/Brady due process for our members. We believe, as do many other law enforcement professionals, that without meaningful resolve to this critical issue, we will continue to lose good officers, and the best and brightest applicants who once looked forward to a career in law enforcement will continue to look elsewhere.

 

In a step in the right direction, PBA is appreciative of Speaker of the House Tim Moore who reappointed Rose to the Commission with one of his appointments. Rose is looking forward to his continued work on this issue and serving as the “voice of law enforcement officers” on the Commission for our members. 

 



[i] Robert Hassell is the police chief of Rocky Mountain Police Department and serves on the Commission as an appointee of the North Carolina Association of Police Chiefs.

[ii] Eddie Caldwell serves as vice-chair of the Commission as an appointee of the North Carolina Law Enforcement Officers Association.  He is the executive vice-president, general counsel and lobbyist for the North Carolina Sheriff’s Association.

 

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