July 23, 2011 in City

Shawn Vestal: Dismissal of detective sheds light on ‘Brady officer’

By The Spokesman-Review
 

They call them “Brady officers.” If you ever find yourself arrested, they’re the ones you want to catch you.

A Brady officer is a cop with a record of untruthfulness. On a witness stand, they could be a defense attorney’s dream. If a prosecutor gets a criminal case filed by a Brady officer, that officer’s record is “discoverable” – meaning it should be turned over to the defense as exculpatory evidence.

Among the many reasons police Chief Anne Kirkpatrick cited for firing Detective Jeff Harvey – a list that is breathtaking in its comprehensive inclusion of all the ways we’d prefer that police not behave – was this one: He qualifies amply as a Brady officer.

In other words, the city of Spokane was paying him almost $100,000 a year to be a source of reasonable doubt for defendants.

The Brady factor was mentioned only in passing in the letter from Kirkpatrick and City Administrator Ted Danek discharging Harvey. The letter details his history of excessive force, reprimands and suspensions, and truculent, pain-in-the-butt behavior. The last straw was the filing of obstruction-of-justice charges against Harvey over a confrontation with a fish and game officer.

I can’t find any indication that his Brady-ness ever actually became an issue in court. But the potential was there, and it was among the best reasons Kirkpatrick had for sending the 25-year veteran packing.

Harvey has filed a $10 million claim against the city, alleging that his constitutional rights to due process were violated. But given his long record of bad behavior and the seemingly bottomless well of second chances he received, the only question is why he wasn’t gone sooner.

The Brady v. Maryland decision in 1963 was a landmark for due-process rights; the Supreme Court found that prosecutors cannot suppress information that might be favorable to an accused criminal’s case. This can include evidence about the credibility of an officer testifying in court.

Here’s what Police Chief magazine had to say about that: “Indeed, evidence that the officer has had in his personnel file a sustained finding of untruthfulness is clearly exculpatory to the defense.”

Harvey has two such findings. In 1991, he was suspended for a week after he called in, claimed to be sick and went hunting, according to the chief’s letter. At that time, the chief of police, Terry Mangan, warned Harvey if he didn’t straighten up he could lose his job.

Less than 18 months later, Harvey was again suspended, for making false allegations about a supervisor. Mangan again warned him: Any “serious lapses” would lead to his “probable termination.”

“These two events alone would qualify you as a ‘Brady officer,’ ” Kirkpatrick wrote.

Through a spokeswoman, Kirkpatrick said this week that she was just pointing to a possible problem – not indicating that it had become a concrete issue during the two decades since Harvey donned the Brady jacket.

I couldn’t raise prosecutors to talk about how Brady works here; a defense attorney said it was a potential problem, but he couldn’t think of cases here in which an officer’s credibility had been challenged in that way.

A Seattle Post-Intelligencer investigation in 2008 found that few prosecutor’s offices maintain lists of Brady cops, and that officers found to have lied in an official capacity – supposedly the profession’s cardinal sin – often keep their jobs.

Former Spokane County Prosecutor Don Brockett said the former detective’s personnel record could absolutely have become a problem at trial.

“I think it’s amazing we’ve gotten to the point where an officer … has been allowed to get away with so many things over the years without being fired,” he said. “What if he (investigates) the Big Case and the Big Case gets thrown out?”

Harvey’s attorney, Bob Dunn, said incidents from 20 years ago have been superseded by Harvey’s long career since, including the awarding of a Medal of Valor for bravery in the line of duty. Harvey shot and killed an armed suspect in 1993, ending a standoff at a surplus store.

Dunn says Kirkpatrick cavalierly ignored Harvey’s due-process rights by presiding over the hearing at which he was to give his defense, instead of having an independent hearing officer; by releasing details of his personnel file without notifying him and allowing him an opportunity to object; and by rushing to judgment before his criminal case on the obstruction charge is complete.

Dunn is a good advocate, and he argued that people shouldn’t rush to judge Harvey until he’s had a chance to tell his side of the story. He’s innocent until proven guilty, after all.

But he might be innocent of the criminal charge, while being guilty of unprofessional behavior. That’s the judgment Kirkpatrick has made, and she’s supported it well. In his complaint to the city, Harvey says the accusations that he refused to cooperate with the fish and game officer were contrived and spurious; the investigation was negligent and biased; he was denied due process; and Kirkpatrick was retaliating against him for being a union officer.

In other words, Harvey asks us to disregard the word of a lot of people – the fish and game officer, a prosecutor, internal affairs investigators, the administrative review panel, top department officers and city officials who reviewed the audiotape of the incident – and to accept his.

He may be right. But I hope we get more than his word to go on.

Shawn Vestal can be reached at (509) 459-5431 or shawnv@spokesman.com. Follow him on Twitter at @vestal13.


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