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Denver will undertake review of deputies with past discipline that could affect trial testimony

New division uncovered sheriff department was not tracking Brady obligations
Posted at 4:54 PM, Dec 10, 2019
and last updated 2019-12-10 20:47:18-05

DENVER – The city’s newly-created Public Integrity Division has discovered that the Denver Sheriff Department has not been disclosing to prosecutors and the city attorney’s office the deputies with prior discipline cases or criminal convictions that could affect their ability to testify during a criminal trial, the city’s Department of Public Safety announced Tuesday.

But the division is now undertaking a review of current and past deputies and their disciplinary and criminal records to determine which could potentially be put on a so-called Brady List, which would be updated and keep prosecutors, city attorneys and defense attorneys apprised of which deputies are on the list.

Because of a 1963 U.S. Supreme Court decision in Brady v. Maryland, defense attorneys are supposed to be told by prosecutors if there is any evidence favorable to their client, which could potentially include testimony from a law enforcement officer who has previously been found to be dishonest or have other disciplinary records or criminal convictions that could call into question their credibility.

Denver sheriff’s deputies are only in charge of the city’s jail and are thus not often called to testify in criminal cases other than those that involve incidents inside a jail or during a transport.

Executive Director of Public Safety Troy Riggs said Tuesday that he and Public Integrity Division Director David Walcher estimated that the review of current and past deputies would turn up between 40 and 70 deputies that will be placed on the Brady List.

Walcher said he and his team discovered DSD did not have a Brady process in place sometime in September after beginning work in April. Both he and Riggs said prior leadership within the Department of Public Safety and DSD did not believe the sheriff’s department was subject to Brady rules, but after talking with the district attorney's and city attorney’s offices decided that it should be. The Denver Police Department has had a policy in place since 2008.

Riggs said that the process to identify potential deputies who should be placed on the list would be “time consuming” and “painstaking.”

Interim Sheriff Fran Gomez sent a memo to all DSD staff on Tuesday notifying them of the review, explaining how Brady obligations work, and notifying them of new rule changes.

“If you have a prior sustained case that requires notification to the DA and CAO you will be notified separately during the first quarter of 2020,” Gomez wrote. “Please note that cases that have already been sustained that may potentially require Brady notification will not be re-opened for additional investigation and no additional discipline will be issued. This process is simply providing notice to the DA and CAO to comply with our legal obligations.”

Riggs said DSD’s process would mirror that of DPD’s. He said he expected the review to be complete by the first quarter of 2020, though both he and Walcher acknowledged that timeline was “aggressive.”

Both Riggs and Walcher said that they believed the review could potentially uncover other issues not related to Brady. After the review is complete, the PID will give the list to the district attorney’s office, the city attorney’s office and to the public, Riggs said.

Walcher said he and his division would have to start with thousands of case files and whittle down from there by looking at internal affairs records and cases in which deputies testified, and the credibility and record history of each deputy.

Once the list is complete, the district attorney and city attorney will have to determine what the impact of the list might be and if it could affect any past or current cases.

Gomez said she was “pleased” that the PID uncovered that the department wasn’t following Brady obligations and said she agreed that DSD was a law enforcement agency and “should follow the law.”

Once the list and review by the district attorney and city attorney are complete, anytime a deputy on it is listed as a witness at a trial, defense attorneys will be notified and will be able to ask a judge to provide them evidence of the prior discipline or convictions that they could potentially use to question the credibility of the deputy or to try to impeach them as a witness.