DFL pulls police misconduct transparency bill

Minnesota lawmakers have introduced several bills that would make information about police misconduct more accessible to prosecutors, who are legally required to disclose that material to defense attorneys.

The U.S. Supreme Court ruled in Brady v. Maryland in 1963 that prosecutors must hand over evidence that’s favorable to the defense — such as evidence that a police officer lied in court or has a history of brutalizing people. The Supreme Court also ruled in a 1972 case called Giglio v. United States that police and prosecutors must also disclose information that shows a witness may be untruthful or biased.

Hennepin County defense attorneys and even some prosecutors have been ringing alarm bells for years about routine Brady violations — especially when it comes to Minneapolis Police Department officers with disciplinary histories that aren’t disclosed to defense attorneys. 

Of particular concern is that an officer can be accused of misconduct and wind up being “coached,” which is not considered discipline and is therefore not publicly available and not disclosed to defense attorneys. The Minneapolis Police Department has used coaching in cases of serious disciplinary infractions, like excessive force, discrimination, retaliation, and harassment. 

Earlier this year, Hennepin County Attorney Mary Moriarty announced new interim measures to ensure the office is disclosing exculpatory evidence to the defense, including “coaching” of officers; prosecutors can only obtain the records via court order, however. 

Rep. Cedrick Frazier, DFL-New Hope, and Sen. Ron Latz, DFL-St. Louis Park, introduced bills (HF4424/SF4411) to reduce Brady violations, but the bills were pulled from the Wednesday agenda of the Senate Judiciary and Public Safety Committee, which Latz chairs.

Latz said there was “no consensus” among stakeholders, and he now doubts the bill will move this session. The bill is “just not ready for action now,” he said in a text.

The bill amends the state Data Practices Act to allow law enforcement agencies to share potential Brady-Giglio data with prosecutors, even if it’s not public data. Prosecutors currently must get a court order to look at non-public information, such as misconduct complaints still in process or complaints that are handled with coaching.

Under the bill, prosecutors would be able to get the information from the Minnesota Board of Peace Officer Standards and Training. Police agencies are already required to report the misconduct information to the POST Board. But prosecutors would still have to get a protective order to disclose non-public information to the defense.

The bill is supported by the Hennepin County Attorney’s Office, which has been criticized in the past for failing to properly turn over Brady material. The Minnesota Department of Human Rights said in an April 2022 report that the office, under the leadership of former Hennepin County Attorney Mike Freeman, did not properly turn over Brady/Giglio material and instead only looked at publicly available misconduct data.

After more than two decades in office and just weeks before voters elected Moriarty to replace him, Freeman released a new Brady policy. 

Moriarty’s new Brady policy can take more time: More than a dozen cases have been delayed while prosecutors get court orders to look at the possible Brady material, said Clare Diegel, director of the division of professional standards for the Hennepin County Attorney’s Office.

“If the agencies were better able to share information with us, we wouldn’t be in this race against the clock,” she said. 

Rep. Paul Novotny, R-Elk River, attacked Moriarty for supporting “an enhanced version of Brady-Giglio policies to sanction law enforcement officers,” he said, even as she’s been accused of withholding exculpatory information by the defense attorney for State Patrol Trooper Ryan Londregan. Londregan is a trooper who shot and killed Ricky Cobb II during a July highway traffic stop

The attorney for Londregan claims Moriarty is withholding a report by a use-of-force expert she hired to help decide whether to criminally charge the trooper. Moriarty has said her office has already disclosed all relevant information and there is no such report.

Novotny, a retired sheriff’s deputy, sponsored a bill (HF4306/SF4568) that would establish a task force to examine so-called Brady Lists, which is a list of officers with credibility issues. 

Novotny wants “a uniform Brady-Giglio standard in the state not arbitrarily decided and administered by one person,” seeming to reference Moriarty.  

The Novotny bill would also ensure police officers are not disciplined for failing to make exculpatory evidence available in prosecutions or because they’re on a Brady List. 

Diegel said Novotny’s proposed task force is primarily composed of law enforcement and should have more attorneys who would ensure they aren’t violating the Brady requirement. Republicans have introduced several other bills dealing with Brady issues, but they’re unlikely to go anywhere in the DFL-controlled Legislature.

Editor’s note: The Minnesota Reformer is an independent, nonprofit news organization dedicated to keeping Minnesotans informed and unearthing stories other outlets can’t or won’t tell. 

This story was written by Deena Winter, a senior reporter for the Minnesota Reformer. It originally appeared in the Minnesota Reformer on March 21.