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Editorial: Law officer transparency helps ensure fair trials

Sun., May 20, 2012

Nearly a half-century ago, the U.S. Supreme Court issued a ruling about the suppression of potentially exculpatory evidence that reverberated through two recent news developments. First, we learned that three officers involved in the Otto Zehm case are on something called the Brady list. Then, the Washington Supreme Court overturned a death penalty conviction and ordered a new trial, citing violations of civil liberties protections stemming from the 1963 U.S. Supreme Court case Brady v. Maryland.

The Brady ruling, which has been tweaked and refined by subsequent federal court cases, says defendants have a right to any evidence that could help their cause. In the death penalty case of Darold Stenson, a Clallam County man who was convicted of murder 18 years ago, the state Supreme Court tossed his conviction because defense counsel was not given some investigatory information.

Does this mean Stenson is innocent? No, but he will be granted a new trial. His case provides a fresh example of how law enforcement and the prosecution can undermine their own cases. Prosecutions can be torpedoed if the defense isn’t informed that involved officers have a history of lying while carrying out their duties. It’s important that law enforcement agencies identify these so-called Brady officers so that defense counsel can be told and prosecutors can avoid surprises at trial.

Because law enforcement and prosecutors work together, this has been a delicate subject to broach. But the issue has been a topic of the Washington Association of Prosecuting Attorneys for the past two years, according to Spokane County Prosecutor Steve Tucker. An effort is now under way to formalize the compilation of a Brady list in Spokane County.

While it may seem like common sense that such officers wouldn’t be employed anymore, “you lie, you die” is more slogan than reality. Witness the difficulty former Spokane police Chief Anne Kirkpatrick had in firing officers. A Seattle Post-Intelligencer investigation in 2008 revealed that just 13 officers over a five-year span had been terminated and disqualified from serving in Washington, yet the newspaper had documented about two dozen other cases involving officers who had allegedly lied and retained their jobs.

Even with that revelation, Brady lists have been slow in developing. The U.S. Attorney General’s Office has identified three officers in the Spokane Police Department; all are connected to the Otto Zehm case. Spokane County Sheriff Ozzie Knezovich said he can think of some deputies who might end up on his list.

In some jurisdictions around the country, law enforcement agencies won’t respond to Brady requests unless subpoenaed. So far, it looks as if the Spokane Police Department and the Spokane County Sheriff’s Office will cooperate.

Although no officer wants to be labeled this way, it’s important that transparency supersede personal concerns. Suppression of such information could amount to a “get out of jail free” card for guilty parties. That should be incentive enough for any law enforcement agency to cooperate.