The impact of the new Hennepin County officer misconduct disclosure policy

CATHY WURZER: Well, right now, we're going to go on to another story. Police departments in Hennepin County will have to disclose more information about when officers have mishandled evidence, lied, or acted out of bias. And prosecutors will be required to turn those records over to the defense.

County Attorney Mary Moriarty announced the new rules at a press conference yesterday. They relate to Supreme Court cases known as Brady, or Giglio, which says that prosecutors have to collect and share information that could cast doubt on an officer's testimony. Brooklyn Park Police Chief Mark Bruley was also at the news conference, where he said he worked with the county on the policy.

MARK BRULEY: The data that we have, when officers make mistakes, they're held accountable. And that accountability, it sometimes may show up in trials, and it should be. And that brings some credibility to the system.

CATHY WURZER: Joining us to help explain what this means for defendants on trial is Barry Edwards. He's a criminal defense attorney with the Keller Law Offices. Barry, thanks for joining us.

BARRY EDWARDS: Good morning, Cathy. Good afternoon, Cathy.

CATHY WURZER: Good afternoon. For folks who are not attorneys, prosecutors, as I understand it, are constitutionally obligated to disclose any information that could aid in the defense, right?

BARRY EDWARDS: It's broader than that. But under the Brady decision, which is rooted in the due process clause of the US Constitution, the prosecution is required to disclose information that may relate to guilt or to culpability.

CATHY WURZER: OK. So I'm wondering here, what kinds of information does that currently entail? I mean, as a defense attorney, what are you looking for? What do you need?

BARRY EDWARDS: Everything. The defense attorney views the world through a drinking straw. And we share the goal that when a crime is committed, we want the right person prosecuted. And we're talking a lot today-- we're talking a lot in the context of Mary Moriarty, Hennepin County, and Minneapolis about police conduct police misconduct, conduct, police training. But Brady material also includes much more information, including things like how crime labs implement standard operating procedures. Whether witnesses, for our side or their side, have a criminal history.

We don't have access to that information, especially if it's from outside of Minnesota. So the prosecution has what is technically called awesome resources-- that's a term of art-- that the defense doesn't have. And the prosecution has an affirmative duty to reach out and find this information which may relate to the defendant's guilt, whether he or she committed the crime, and also culpability, which is a different thing which relates to just how culpable, just how much this person was responsible, which may relate to sentencing, for example.

CATHY WURZER: So in Hennepin County now, what's been the situation like prior to yesterday's announcement?

BARRY EDWARDS: Well, the situation after yesterday's announcement, of course, is the same as it was before. Mary Moriarty announced that there is a new policy, but if I understand it correctly, she hasn't formalized the policy or articulated it. But as-- well, to have a list of police officers who have been found guilty of misconduct, who have been found guilty of dishonesty, who have been found to violate the Fourth Amendment on search and seizures, excessive force-- every police department knows who these police officers are and is supposed to keep a list. They call it a Brady list.

Hennepin County-- I'm sorry, Minneapolis specifically. Of course, that's the biggest jurisdiction in the state and in Hennepin County-- has infamously, jaw-droppingly not even kept that list. So when a police officer is disciplined, that is public information under the Minnesota Data Privacy Act, Data Practices Act, which is the Minnesota version of FOIA, Freedom of Information Act.

To avoid that, Minneapolis Police have not disciplined attorneys for a decade. They have instead used something called coaching. And they insist that coaching is not public information under the Minnesota Data Practices Act.

CATHY WURZER: Coaching of officers who may have some problems, right.

BARRY EDWARDS: Judges or defense attorneys, prosecutors, frequently find misconduct-- or even if it's not deliberate misconduct. Just someone who doesn't know how something is done. And when that's identified, yeah, instead of going through a disciplinary process-- which, of course, is somewhat regulated by a union. Instead of going through a disciplinary process, they've been getting what's called coaching, which, again, doesn't qualify as discipline-- they say does not qualify as discipline, therefore is not disclosable.

CATHY WURZER: So this sounds like a huge change in Hennepin County.

BARRY EDWARDS: It's a huge change for Minneapolis, and I think that we are, rightly or wrongly, conflating Minneapolis and Hennepin County. It's Minneapolis that has not had a Brady list. I can't speak to the scores of cities in Hennepin County. But as I said before, it's not just-- Brady is not just police misconduct. It's the global information that the prosecution has access to. Again, how crime labs implement standard operating procedures. Whether witnesses have criminal histories.

So I hope that Mary Moriarty is looking not just at police and saying, you guys have got to do better, but looking internally at her own line prosecutors. I've got a case right now where it's a criminal sexual conduct case, a sexual assault case, where a police officer conducted a forensic interview. And I'm trying to get access to his training on conducting forensic interviews, and I'm having trouble getting that information. So it's that kind of thing that has to come from the county attorney, not just from the police.

CATHY WURZER: So final question for you, and you may have touched on this briefly. You mentioned Minnesota's Data Practices Act. And I'm wondering, all this information will now be disclosed. Would it also be released to the public?

BARRY EDWARDS: Well, I'm not necessarily agreeing to the premise that it's all going to be disclosed. I have no doubt in Mary Moriarty's good faith that she intends to get more of it disclosed. But the Data Practices Act is a lengthy statute. It has categories such as investigation data, which may be disclosed to me but may not be public. I'm sure that's part of the hang up, like it was with body cameras.

If we release this to you, then people's personal interactions in their homes with police may then be broadcast on YouTube. So in, I'd say, most of my cases, I get a protective order signed by the judge saying that I can look at this stuff, but I cannot disseminate it or disclose it. So it wouldn't be hard to come up with a scheme that protects it from public disclosure.

CATHY WURZER: All right. You know, I appreciate your time, Barry. Thank you so much.

BARRY EDWARDS: Yeah, thanks a lot, Cathy. Have a great day.

CATHY WURZER: You too. Barry Edwards is a criminal defense attorney with Keller Law Offices.