An Erie County Court judge has ruled prosecutors must turn over to defense attorneys all disciplinary records of police officers who will be called as witnesses at a criminal trial.
In what’s believed to be the first local ruling on the matter, Judge Susan Eagan ordered prosecutors to provide the full departmental records for each officer as part of their legal requirements to reveal evidence to the defense.
Under state criminal procedure law, prosecutors must turn over its evidence to the defense, including any material that could be used to discredit a witness.
Until now, county prosecutors decided – in most cases – what police disciplinary records to share with a defendant’s lawyers.
“Having this information is incredibly important,” said Kevin Stadelmaier, chief attorney of the criminal defense unit of the Legal Aid Bureau of Buffalo. “Judges and jurors tend to believe police officers. Attacking their credibility is a key factor in any defense.”
State law changed last June to make most police disciplinary records public through the repeal of a section of civil rights law, known as 50-a, and changes to the state’s Freedom of Information Law.
In her ruling, issued Feb. 23, Eagan said prosecutors cannot deem their case ready for trial until the full disciplinary records for would-be witnesses are turned over. Providing “summaries” of disciplinary records, like those maintained by the Buffalo Police Department, was not sufficient.
Eagan’s ruling also removes prosecutors’ discretion about what parts of the disciplinary records could be turned over.
“The law does not allow for this information to be filtered by subject matter or by the People’s assessment of its credibility or usefulness,” the judge ruled.
Prior to this ruling, county prosecutors had been providing copies of records involving substantiated claims of wrongdoing, as well as any “technical” violations they determined could be used to impeach a witness’ credibility, District Attorney John Flynn said.
An example of what’s considered a technical violation that may also be used to impeach is an officer who was found to have been violating a department’s residency policy, Flynn said. In such a case, the officer is essentially lying to his employer, he said.
On the other hand, an officer disciplined for showing up late to work by five minutes would not have been turned over because prosecutors wouldn’t consider it “impeachable,” he said.
In instances he described as “borderline,” prosecutors would ask the judge to review it and decide whether it must be shared, Flynn said, describing his office’s past practice.
This aspect of Eagan’s ruling is important because police department supervisors, who make the decisions on citizen complaints, won’t be the ultimate filter on what gets released, said Stadelmaier, of Legal Aid.
“I don’t really want the fox watching the hen house,” Stadelmaier said.
Eagan also ruled that police disciplinary records, even those not in the physical possession of prosecutors, must be provided. Such records in possession of a police department are considered to be in prosecutors’ possession.
“This is really important for the defense that we finally have a judge put that in writing and in such specificity everything that we’d be entitled to,” said Brittany Penberthy, the defense attorney in the case in which Eagan ruled. That case involves weapons charges against a defendant following an arrest by Buffalo police.
The District Attorney’s Office cannot yet appeal Eagan’s ruling, since the case is ongoing. Flynn said he’s not sure if his office will appeal it when the case is over. He said he will wait to see if another county court judge issues a different opinion.
Changes to discovery rules that went into effect statewide Jan. 1, 2020, included the establishment of “automatic” discovery – which eliminates the requirement for defense attorneys to file paperwork in order to obtain evidence. One category of evidence that must be automatically shared is material considered to be favorable to the defense.
While the precise impact and influence of Eagan’s ruling will be seen as time goes on, and as other judges may issue rulings on the topic, defense attorneys will argue Eagan’s ruling is also binding in lower courts in Erie County, according to Flynn, Stadelmaier and Nicholas Texido, deputy defender for litigation support and appellate bureau of the Assigned Counsel Program of the Bar Association of Erie County.
Ultimately, state appellate courts, and possibly the Court of Appeals, the state’s highest court, will have to weigh in, Texido said.
“It does take time for these issues to be argued in the trial courts and wind their way up to the appellate courts,” he said.
The District Attorney’s Office is working to create a database of all police disciplinary records for officers from all agencies in the county, Flynn said.
Thus far, the office has received full disciplinary files for about 400 of the approximately 750 officers in the Buffalo Police Department, he said.
Flynn’s office sent letters to police agencies across the county last summer and fall requesting all disciplinary records. The response has been mixed, with some suburban agencies “dragging their feet,” the district attorney said.
“A lot of them blew me off,” he said.
Flynn said while he’s not opposed to giving defense attorneys “legitimate” impeachable material, he is concerned that information about unsubstantiated complaints against an officer are now able to be used at trial.
Some police departments who are actively encouraging the public to bring complaints about officers to their attention in order to foster an open relationship with the community may not want to be as proactive if unfounded complaints are used at trial, Flynn said.
“That’s a major concern in local police departments, among local police chiefs,” he said.
The vast majority of police officers are very good and are simply trying to perform a difficult job, said Stadelmaier.
There’s a significant public interest and there should be a significant interest from police departments to disclose disciplinary material, he said. It incentivizes good behavior and possibly gets some officers who may have been more aggressive in the past to tone down their actions, he said.
With the opening of disciplinary records, hopefully it shines a light on those who aren’t acting appropriately, Stadelmaier said.
“It can only really be a positive,” he said. “Why wouldn’t you want behavior cleaned up inside of whatever profession you’re doing?”