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Berkshire DA: Up to Towns to Handle Officers on 'Brady List'
By Stephen Dravis, iBerkshires Staff
02:21AM / Wednesday, July 28, 2021
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Berkshire County District Attorney Andrea Harrington addresses a meeting of the Williamstown Select Board on Monday evening at Williamstown Elementary School.

WILLIAMSTOWN, Mass. — If Select Board members hoped the Berkshire County district attorney would offer direction on how the town should deal with the impact of having a police officer on her office's "Brady list," they were very disappointed.
 
Twice during an hourlong presentation at Monday's Select Board meeting, District Attorney Andrea Harrington said it was not her office's place to tell towns how to respond when the county's prosecutor decides one of the municipality's law enforcement officers has a history that needs to be revealed to defense attorneys or, worse, that an officer's history is so concerning that he or she cannot be used as a prosecution witness without approval of a supervisor.
 
The town currently has 11 full-time officers — including one on administrative leave since March and another pulling double duty as lieutenant and interim chief. A third has been placed on Harrington's "do not call" list, meaning the DA has determined the officer has "made misrepresentations about material facts in a criminal investigation," she said Monday in Williamstown Elementary School's gymnasium.
 
Some in the community have wondered whether having an officer on the do-not-call list, particularly when the department already is short-handed, creates an issue for the department's efficiency. Many residents have suggested that the town should remove the officer on the list and replace him with an officer who can be fully functional.
 
Harrington indicated those are issues on which her office takes no position.
 
"Our authority over police officers is Brady policy and also prosecuting police officers for crimes," Harrington said in answer to a question from the floor of Monday's meeting. "But we do not govern the conduct of police officers. That is something that is governed by the local municipality. We certainly want to be helpful in terms of providing training, and my office has provided training. And we're happy to continue to work to do that.
 
"I think the [commonwealth's Peace Officer Standards and Training commission] … is really going to be a godsend and really be incredibly helpful in taking some of the politicization and some of the hard feelings and difficult process and having volunteers weighing in on really hard decisions."
 
Later, resident Andrew Art asked about the potential impact on crime victims whose cases are investigated by an officer who ultimately won't be called to testify by the district attorney's office.
 
"It's up to your town and every municipality how you want to be policed," Harrington said.
 
"I will say that we've had an excellent working relationship with the Williamstown Police Department, and we're very happy to have that partnership. It is concerning for my office when victims of crime say that they are afraid or intimidated or don't feel comfortable reporting crimes to the police because we do rely on the police having strong relationships with communities so victims feel confident coming to them. … We want to support the Police Department in building those relationships."
 
Twice Monday, Harrington was asked about whether and how police unions play a role when individual officers are placed on Brady lists — in Berkshire County or nationwide.
 
"There has been some pushback against Brady lists from the officers' unions," Harrington said. "There was a case that came out nine months ago, now, that specifically said the Brady obligations are obligations of prosecutors and, by extension, police officers, to defendants. The unions do not have a legal standing to say we cannot have a Brady list because the defendant's constitutional rights supersede labor and employment rights."
 
The town might experience a different kind of pushback if it terminates an officer's employment based on their inclusion on the Brady list. But at least one bit of case law appears to indicate the town would have a case to do so.
 
A 2017 ruling by the Vermont Supreme Court in the case of Hubacz v. Village of Waterbury found that "a State's Attorney's unilateral decision to refuse to prosecute any cases investigated by a particular municipal police officer, alone, [is] a sufficient basis for termination of the officer."
 
Vermont high court decisions are not the law in Massachusetts. There does not appear to be a Massachusetts Supreme Judicial Court decision on this topic.
 
Harrington spent the majority of her time on Monday explaining the rationale behind the Brady list, which is used in many — by no means all — jurisdictions and is named for the landmark Supreme Court decision in Brady v. Maryland in 1963. That case established that prosecutors must turn over to defendants evidence that is exculpatory, i.e., that tends to support a not-guilty verdict.
 
The list is a tool prosecutors can use to track which law enforcement officers in their jurisdiction have issues on their records that rise to the level of disclosure under Brady.
 
Harrington said Monday that it is not a list of "bad cops" and that one of the officers on her office's list is one of her "favorite" police officers.
 
"The Brady disclosure list is our office acknowledging that we have an obligation to provide this information to the defense," Harrington said. "It doesn't mean that we agree that the information we're providing is relevant. It just means we recognize that we have an obligation to provide it to the defense.
 
"Then we have what is called a 'do not call' list."
 
Williamstown has an officer whose name appears on both lists.
 
"On that [do not call] list are officers that prosecutors are not allowed to rely on as witnesses without the approval of a supervisor," Harrington said. "So that is a more serious designation. The way that things have fallen in consideration of specific incidents is that, generally, officers who have been found to have been untruthful during the course of an internal affairs investigation we have put on our Brady disclosure list. And officers who have made misrepresentations about material facts during the course of a criminal investigation we have put on our 'do not call' list.
 
"We get our information from the police departments. We rely on their internal affairs investigations. We also will rely on if an officer is criminally prosecuted, we'll rely on those reports. We also do look at media reports, and if there's something in the media we don't know about, we will follow up with the local department to get more information."
 
Law enforcement officers placed on the Brady list are notified by Harrington's office and entitled to appeal the decision. In response to a question from Select Board member Andrew Hogeland, Harrington said her office has changed its decision at least once after an appeal.
 
Decisions about whether to include an officer on the Brady list are not made by an individual, Harrington said.
 
"In our policy, we have made the determination that we will honor determinations made by [former] District Attorney Capeless, and any individuals he sent out a Brady letter for, we will include on our Brady list," she said. "We also will honor determinations made from other jurisdictions in terms of who is on a Brady list. The Brady list is really just our obligation to disclose evidence to the defense. We're not necessarily agreeing we're not going to use that individual as a witness, but it's a disclosure obligation.
 
"In terms of politicization, I have found that having a very clear, formal policy and a process that articulates, 'This is how we do it, this the process we take,' has taken out those kinds of concerns of favoritism. We have a three-person panel. We have myself, the first assistant and the deputy district attorney. This is not a statement on what my office thinks about an officer. This is about our obligation to defendants.
 
"Having a formal policy is super helpful."
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