Hennepin County Attorney to require police to disclose more of officers’ misconduct history

Hennepin County Attorney Mary Moriarty sent a letter to police chiefs last month announcing new requirements on what their agencies must disclose about an officer's history of misconduct, a measure she says will ensure fairer criminal proceedings in Minnesota courts.

Prosecutors in the United States are constitutionally obligated to disclose any information that could aid in the defense of someone accused of a crime, including evidence that casts doubt on the credibility of a witness, such as the police officers whose testimony and investigations are critical to securing convictions. This data — known as "Brady" or "Giglio" for the legal doctrines — may include an officer's pattern of rule breaking or lying. But there is debate among prosecutors across America on what exactly must be disclosed.

Moriarty's letter instructs police departments in Hennepin County to begin turning over any evidence of critical findings related to a police officer's truthfulness or candor, bias against a person or group, excessive force, improper search and seizure or abuse of authority. They must also notify the courts if an officer failed to follow proper protocols related to collecting or handling evidence, obtaining statements, recording communications, obtaining consent to search or record communications, supervising criminal informants or analyzing forensic evidence.

"Fair trials are the bedrock of our criminal legal system," Moriarty said at a news conference Wednesday. "If a defendant does not receive a fair trial, a conviction can be overturned. Overturned convictions can mean that a person who has committed a crime and inflicted harm is not held accountable — or that an innocent person is wrongfully convicted."

Nick Kimball, a spokesman for Moriarty's office, said they are still working to finalize the internal written policy.

In an interview, Moriarty said her office has been meeting with dozens of police chiefs and legal experts since shortly after she started her position last year. She also hired Clare Diegel, a former public defender and attorney for the American Civil Liberties Union, to help develop a new policy based on best practices.

Under the past administration's interpretation of the law, Moriarty said, the Hennepin County Attorney's Office only disclosed data deemed public information under Minnesota statute — which may be inconsistent across police agencies. For example, in Minneapolis, if a police officer is accused of misconduct, and an investigation finds merit, the complaint will become public under state law once the officer is disciplined. But if the officer is "coached" — a gentler form of discipline — Minneapolis says that doesn't constitute a public record, and in turn wouldn't have been disclosed. Yet, other agencies may say "coaching" does fall under the umbrella of a public record.

"This is much more proactive — which is what the Supreme Court requires us to do," Moriarty said of the new policy.

Moriarty said private data will be reviewed by her office under court order, meaning it won't be released publicly. Her office may also argue the data is not relevant to trial proceedings after disclosing it to the defense.

Brooklyn Park Chief Mark Bruley appeared alongside Moriarty at a news conference Wednesday endorsing the plan, saying he "expressed numerous times" that he didn't think Moriarty's predecessor, Michael Freeman, had a strong enough policy to comply with the data disclosure requirements.

"This is absolutely the right move," said Bruley. "As such, I have way more confidence that we are complying."

Asked for comment, Minneapolis police spokesman Garrett Parten released a statement saying: "MPD continues to cooperate with the Hennepin County Attorney's Office to revise and update the Memorandum of Understanding between her office, the Minneapolis Office of Police Conduct Review, and the Minneapolis Police Internal Affairs Division."

Representatives for the Minneapolis and state police unions did not respond to requests for comment.

Rachel Moran, a University of St. Thomas law professor who has written legal articles on constitutional disclosure requirements, called the new policy a "dramatic improvement."

"This is a very strong policy that is on the better end of things and makes really specific efforts to comply with the law," she said.

Kathryn Bennett, a civil trial attorney for Robins Kaplan LLP, also praised the new policy as "step forward in the right direction" in identifying dishonest police. Bennett helped secure a $20 million settlement for the family of Justine Ruszczyk Damond, who was shot and killed by a Minneapolis police officer in 2017, in a case that raised questions over whether the "blue wall of silence" interfered with an officer's ability to be honest on the stand.

Bennett said the new policy will make it more difficult for police to skirt the spirit of the disclosure laws through technical loopholes, such as Minneapolis' "coaching" designation.

'Sea change'

In her past job as chief public defender in Hennepin County, Moriarty saw prosecutors building criminal cases on the testimonies of police officers she knew were not reliable.

In one especially egregious example, the defense repeatedly won dismissals based on the same Corcoran police officer's vehicle searches that judges later deemed unconstitutional. After the sixth dismissal, in February 2020, the officer, Cody Vojacek, told the judge he had no plans to change his policing tactics based on the court's findings.

"No, because I disagreed with the findings of those orders," Vojacek said in court. "So no, I didn't. I do things exactly the same as I always have."

The judge in that case, Marta Chou, expressed concern in her court order over what she called Vojacek's indifference to the court's role in administering justice. "It is a grim and dangerous day when an officer admits explicitly in open Court he believes he is above the law," Chou wrote.

Moriarty said she talked about this case at a meeting with police leadership recently, and the Corcoran chief approached her after and said he didn't know about Vojacek's continued dismissals.

"I was really, really surprised — and disappointed — to hear that this office had never contacted him," Moriarty said in an interview this week.

Under the new policy, Moriarty said her office would have addressed this issue with the chief after the first dismissal — rather than waiting for six — and prosecutors would be unlikely to put an officer like Vojacek on the stand if he continued the behavior.

Moriarty said her new policy marks a "sea change" in how prosecutors inform police leadership of these type of credibility problems with officers that lead to putting officers with histories of bad behavior on the stand. "When a case is suppressed and we have to dismiss it, we are making sure that the officer and the chief knows about that."

She said Vojacek's is an extreme case, and the problems more often come down to a "training issue."

In most cases, it's difficult for defense attorneys to know if the prosecutor is disclosing what's required by law. If an allegation isn't disclosed, the defense may never become aware that it exists.

No 'exclusion list'

The Brady doctrine derives from a 1963 Supreme Court case in which a Maryland man, John Leo Brady, was found guilty of murder and sentenced to death. Brady's defense later learned that prosecutors withheld a statement from an accomplice saying he'd committed the murder mostly himself. Brady appealed and his sentence was commuted to life in prison.

In 2002, a murder conviction in New Orleans was vacated after a private investigator discovered the prosecutor had hidden the results of a blood-sample test that did not match the defendant, John Thompson. Thompson spent 17 years in prison before the exoneration. The U.S. Supreme Court later ruled in a 5-4 decision that a prosecutor couldn't be held civilly liable for a Brady violation, dismissing Thompson's $14 million verdict awarded by a lower court.

In other states, some prosecutors have released more aggressive policies in recent years that blacklist officers deemed not credible.

In St. Louis, former prosecutor Kim Gardner dropped dozens of cases based on investigations conducted by officers on a so-called "exclusion list."

In Philadelphia, the police union unsuccessfully sued District Attorney Larry Krasner over his Brady list.

Moriarty said she doesn't plan to create an exclusion list.