By Nicholas Chrastil, The Lens via BlackPressUSA
During his campaign for Orleans Parish district attorney, Jason Williams said that if elected he would keep a list of police officers in New Orleans with credibility problems — such as a history of lying, discrimination or brutality — who he would not call on to testify at trial, or in some cases refuse to take cases from all together.
“The purpose of the list is to make sure that every case we bring is credible,” he told The Lens in December after he was elected, but before taking office. “And to ensure that no case that we prosecute is based on racial profiling or racial bias.
Williams has been DA since January, and his office now has a so-called “Brady list” of officers accused of misconduct. (The list is named after the 1963 U.S. Supreme Court case Brady v. Maryland, in which the court found that prosecutors must disclose exculpatory evidence to defendants.)
But as the Brady list is currently compiled, some types of misconduct — including discrimination, unauthorized use of force, intentional misuse or non-use of body worn cameras, and coercing confessions — do not appear to qualify.
A spokesman for NOPD disputed that officers found to have engaged in those categories of misconduct don’t appear on the list, saying that the list includes broad categories, like failing to adhere to the law or lying, that do appear on the list.
But a review by The Lens found examples of officers found by internal investigators to have engaged in serious misconduct whose names are not on the Brady list. Among those are officers who were suspended for failing investigate child abuse and sex assault, officers who were suspended for failing to report to supervisors when another officer hit a handcuffed man, and four of the six officers who were involved in the unauthorized high-speed chase in 2019 that resulted in a deadly crash and fire at the Unity-1 Salon in Broadmoor.
In some cases, officers appear to be excluded because an internal investigation is still ongoing — notwithstanding the seriousness of the alleged offense. A police officer who was arrested last year by NOPD for molesting a teenage girl is also absent from the list.
Williams’ First Assistant District Attorney Bob White said last week that while the office is currently utilizing the NOPD’s list, it is also “committed to developing and maintaining our own as we engage in our screening/case in take work in order to end racial profiling and ending police brutality.” White said that it would be “prudent” for the NOPD to update their list to include “all manner of sustained complaints.”
“Our team meets with the NOPD on a regular basis and are always available to assist with the evolution of categories outlining officer misconduct,” White said.
A ‘very old list’
According to Gary Scheets, a spokesperson for the NOPD, the list was created by the NOPD Public Integrity Bureau’s Quality Assurance Unit, and is meant to contain all sustained allegations of misconduct that “could cause an officer’s credibility to be called into question.” The filter that was used to create the list includes officers who PIB investigators found had sustained allegations in three specific categories of misconduct based on the New Orleans Police Department’s disciplinary matrix — adherence to law, intentional false statements (which is denoted as “honesty and truthfulness” on the list), and intentionally false or inaccurate reports.
The majority of the 38 officers on the list who are still on the force have sustained “adherence to law” allegations, and in many cases the list contains the specific criminal charge the officers have been accused of. Those charges include domestic abuse battery, hit and run driving, possession of stolen property, and public payroll fraud.
But the list does not appear to filter in officers with sustained allegations for a number of other rule violations listed in the disciplinary matrix — including discrimination (“Employees shall not discriminate against or show partiality to any person because of racial, ethnic, religious, political, sexual, or personal prejudice”), coerced confession (“An employee shall not use or direct unjustifiable verbal abuse, threats, or intimidation against any person to obtain a confession”), or whole categories of misconduct including “Performance of Duty” and “Restricted Activity.”
When asked about the apparent omissions, Scheets said that some of the misconduct — such as discrimination and unauthorized use of force — “fall under the categories” that are included in the list. But those are considered entirely separate offenses in the NOPD’s rule book than those that appear in the Brady list.
Using a public database of misconduct investigations performed by the Public Integrity Bureau, The Lens identified sustained complaints against officers for discrimination, unauthorized use of force and failure to report misconduct — among others — that are missing from the Brady list.
Scheets did not respond to multiple follow-up questions to clarify. He also suggested that the list obtained by The Lens was a “very old list” — despite the fact that it was provided to The Lens by the DA’s office just weeks ago. When asked whether there was an updated version of the list that included more categories of misconduct, Scheets did not respond.
When provided with the list obtained by The Lens earlier this month, Scheets said it would be “updated as needed.”
Stella Cziment, the acting independent police monitor at the Office of the Independent Police Monitor, was provided the Brady list and asked if she thought misconduct such as discrimination and unauthorized use of force, among other allegations, fell “under the categories” included in the list.
She said she did not think they did.
“Based on the list provided to the OIPM, it does not appear that the allegations listed below fall into the three categories of offenses on the Brady list,” Cziment said.
‘A long overdue responsibility’
Lists of officers with credibility issues — commonly referred to as “Brady,” “Giglio,” or “no-call” lists — are kept by prosecutors around the country, and can serve a variety of purposes. Some DAs use them to make sure defense attorneys are informed of problem officers, as is required under the law. Other prosecutors go even further — by not calling certain officers to testify, or refusing cases from them altogether.
White, with the DA’s office in Orleans Parish, said that determinations on whether the office would accept cases from officers on the current list or allow them to testify was made on a case-by-case basis, but that defense attorneys would be notified any time an officer on the list is involved in a case.
“If an officer is found to be on that list, it is identified by our Screening Division which immediately flags it by generating a notice that’s added to the file for the Trial Attorney,” White said in an email. “If the DA’s Office believes there to be unfair, unjust practices used or there are major issues around an officer’s truthfulness, then the case may be refused. Some officers on this list are allowed to testify.”
White said that “to ensure just and fair trials, we disclose the name of any officer on this list involved in a case to defense counsel.”
The DA’s office did not respond directly to whether or not there was a written policy around the use of a Brady list, and declined to provide one to The Lens.
White said that the office has “publicly and internally said that we will hold officers accountable engaged in untoward behavior.”
So far, White said, no cases have been refused by the office due to officers being on the list.
White also said that creating their own list in addition to the one NOPD has provided to them will serve as “an excellent tool to inform the police chief, the Public Integrity Bureau and NOPD leadership when officers are engaging in misconduct.”
“As NOPD leadership has realized in the wake of the current federal consent decree, external pressure can improve both the culture and policies of local law enforcement,” White said. “The use of NOPD’s internal list as well as matters that we discover on our own will be very important to maintain that positive pressure for reform.”
Danny Engelberg, chief of trials at the Orleans Public Defenders office, said that he thought the list was a “good start” on a “long overdue responsibility of the New Orleans district attorney,” but that he thought the list needed to be significantly expanded.
“The list should be much bigger, frankly,” Engelberg said. “We know that there are still officers not on the list to have even recently not been truly forthright in their justification for someone’s stop and search and arrest. That’s a historical practice that the DA can start to address by tackling those issues in addition to this.”
He also said that he hoped the DA would decline to prosecute any case in which officers on the list were involved, rather than just informing defense attorneys.
So far, according to Engelberg, the DA’s office has not provided the list to the public defenders office or informed them that any officers on the list are involved in cases they are handling. But he noted it was “still early days” and that the Williams’ office has been “making important strides to get New Orleans in line with national best practices, the Constitution, and the law.”
‘It does not include the NOPD officer who was arrested for sexually assaulting a minor child’
It appears that the lists’ relatively narrow criteria, along with the fact that an officer won’t be placed on the list until a Public Integrity Bureau investigation is complete, have resulted in some officers involved in high profile incidents of misconduct to be left off the list.
In some instances, it appears, even when NOPD feels they have enough evidence to make an arrest of a fellow officer, they still may be left off the Brady list until another internal investigation is complete.
Rodney Vicknair was arrested by NOPD in September 2020, following an internal investigation, for allegedly molesting a young girl he had once taken to the hospital for a sexual assault examination, and he was suspended by the NOPD. The DA’s office has not filed formal charges, according to online court records. But the Washington Post reported in March that the police department had also referred the allegations to federal authorities, and a civil suit filed by the girl’s mother alleges that he raped her. Vicknair was fired in January.
According to WDSU, Vicknair had already been disciplined four times by NOPD before his arrest — including three suspensions.
Vicknair is not on the list generated by the NOPD. When asked about the omission, Gary Scheets, with NOPD, pointed out that the list is only composed of officers with “sustained violations.”
“If the process isn’t completed, they won’t be on the list until that happens,” Scheets said.
But there are serious incidents where internal investigations have been completed and charges sustained, yet the officers involved are omitted.
In March 2019, six officers were involved in a high speed chase of a suspected stolen vehicle — violating NOPD policy — which resulted in the vehicle crashing into Unity-1 Beauty Supply in the Broadmoor neighborhood. Three people were killed, including two teenagers who were in the vehicle, and a 54-year old woman who was getting her hair done.
A completed investigation following the incident found that in addition to engaging in an unauthorized pursuit, several officers intentionally turned off their body-worn and in-car cameras.
“This incident involved purposeful violations of the body worn camera policy, in-car camera policy, and the pursuit policy, and those purposeful violations led to the deaths of three individuals, one of which was an innocent victim who was not involved in the incident at all,” the investigator wrote.
Following the investigation, four of the officers were fired, and two were given lengthy suspensions.
Yet the incident did not land the officers on the Brady list compiled by NOPD. Two of the officers are on the list — but for a different Public Integrity Bureau case related to yet another unauthorized pursuit, not the Unity-1 incident.
The misconduct the officers were found to have engaged in during the Unity-1 crash all fell under NOPD “Rule 4: Performance of Duty,” which contains several sub-categories of misconduct. But sustained allegations of misconduct under that rule do not appear to be independently sufficient to land officers on the Brady list.
William Most, a civil rights attorney whose office represents both the parents of one of the boys killed in the Unity-1 crash, along with the mother young girl who was allegedly raped by Mr. Vicknair, said that the Brady list was a “good starting point” but that “it cannot be the ending point.”
“It does not include the NOPD officers who admitted to deliberately turning off their cameras shortly before three people died in an unauthorized police chase,” Most said in an email. “It does not include the NOPD officer who was arrested for sexually assaulting a minor child. We expect the District Attorney will take this and build it into a comprehensive Brady list.”
Cziment said that the Office of the Independent Police Monitor expects the “that all exculpatory information regarding NOPD investigations and officer misconduct be provided to the District Attorney’s Office in adherence with the NOPD’s legal obligations and obligations under the Federal Consent Decree.”
She also noted that OIPM is creating its own public facing database of officer misconduct “that would not only provide this vital information to the District Attorney’s Office but also to the community.”
“In no way would this database alleviate the legal obligations of the New Orleans Police Department or the District Attorney to fulfil legal disclosure obligations,” she said, “but it would enable an additional layer of accountability and public transparency.
The above article originally appeared in The Lens on its website (www.thelensnola.org). The Louisiana Weekly enjoys a partnership with The Lens.
This article originally published in the May 31, 2021 print edition of The Louisiana Weekly newspaper.
This article originally appeared in The Louisiana Weekly.