LMPD maintains list of officers with credibility issues. It leaves off some notable cases

To avoid court cases falling apart — and to defend against wrongful convictions — law enforcement agencies and prosecutors across the nation often maintain lists of officers with credibility issues, whose testimony may not be trusted in court.

The lists are often called “Brady” lists after a landmark 1963 U.S. Supreme Court case that ruled prosecutors must hand over exculpatory evidence to defendants.

Untruthfulness, documented bias and criminal charges are easy ways officers end up on Brady lists, though some lists count excessive uses of force and other misconduct.

But as of December, Louisville Metro Police’s list had just 10 names on it. Four of those officers have been added in the past seven years. Two have been on the list for over 20 years.

“It strains credulity that that’s the complete list of every officer that should be on an appropriate Brady list from an agency that size,” said Philip Stinson, a professor of criminal justice at Ohio's Bowling Green State University and an expert in police misconduct.

Some of the officers on the list landed there for things like allegedly lying about misusing sick days or vehicle damage many years ago.

But glaringly absent from the list are officers who were deemed to have lied to the department in more recent and serious misconduct cases, including the drinks-throwing ‘Slushygate’ scandal.

Also absent is LMPD Chief Jacquelyn Gwinn-Villaroel, who has faced calls to be added to the list following false testimony at a civil trial in November and recent revelations about a past suspension for lying while she was a member of Atlanta's police force.

In 2019, an investigation by The Cincinnati Enquirer found Cincinnati’s police force — which has a similar number of officers as LMPD — had 33 current officers on a local Brady list. LMPD currently has 1,056 sworn officers.

Brady lists, sometimes called “do-not-call” lists, help prosecutors identify officers whose testimony could be problematic given their past. In theory, the lists help act as a bulwark against wrongful convictions by preventing officers with troublesome track records from pushing for shoddy convictions.

While the practice of keeping such lists is common, there is no overarching guideline for how they are maintained, who should keep the lists and what lands officers on the list.

LMPD list not 'exhaustive'

In a statement to The Courier Journal, LMPD said Brady obligations were ultimately up to prosecutors and that the department’s list was not “exhaustive.”

“In general, officers are placed on such lists when they have been sustained for incidents of untruthfulness, bias, or prejudice. There are other circumstances which could cause an officer to be placed on such lists, such as some criminal convictions. This is not an exhaustive list as any conduct which calls an officer’s credibility into question and would be favorable to the accused in a criminal proceeding, is something the prosecutor would be required to disclose,” a department spokesperson said in the statement.

The Jefferson County Commonwealth Attorney’s Office, which prosecutes felony crimes, does not keep its own Brady list but uses LMPD’s as a starting point, said Ebert Haegele, assistant commonwealth attorney and a spokesman for the office.

“It’s a tool we use, but we still have to do our own — as prosecutors — inquiries and analysis before any witness is called,” he said.

He added: “We don’t get to use the Brady list as a crutch ... Our ethical obligations don’t allow us to go ‘well, LMPD didn’t mark Officer Dan, so I didn’t disclose it.’ We have a job as prosecutors to flush that out.”

The Jefferson County Attorney's Office, which prosecutes misdemeanor offenses, has a list of its own, but that list can include names from all law enforcement agencies in the county.

A copy of the County Attorney's office list dated Jan. 8 had 17 names listed as current law enforcement officers that The Courier Journal was able to match with a May 2023 database of LMPD officers. However, discipline documents show at least one of those officers has since separated from the department.

The County Attorney's list also shows dozens of former officers, including a number of whom who were charged with or convicted in high-profile misconduct cases.

County Attorney's Office spokesman Josh Abner said his office's list is broader than LMPD's, because it includes other law enforcement agencies — like Louisville Metro Corrections, for example — and because the Brady rules are "originally directed at prosecutors, and we take the responsibilities with that case law seriously."

Officers involved in high-profile incidents left off LMPD list

A December copy of LMPD’s Brady list, obtained by The Courier Journal under Kentucky’s open records law, does not include a number of officers the department determined to have lied during internal affairs investigations.

Among them are officers who denied knowing about the drinks-throwing ‘Slushygate’ attacks , even though the department determined they did know about them.

One, Detective John Benzing, responded to a video of officers hurling a fountain drink at a pedestrian with a laughing emoji in a group text and was allegedly spotted on camera driving behind a vehicle from which attacks were launched.

Another, Sgt. Kevin Casper, responded “y’all need to use the slo mo feature” to one of the videos in a group text, but claimed he didn’t know subordinates were pelting civilians with drinks.

While those officers faced misconduct charges for not reporting the attacks, and while investigators ultimately determined their denials were not true, the officers did not face formal untruthfulness charges nor are they on the Brady list.

Similarly, Officer Nathaniel Richardson, who slammed a Black man’s head into the ground after he had already surrendered in a 2020 incident, denied doing so when confronted by investigators.

Despite video evidence to the contrary, he told investigators he was lifting the man’s head up to see if he was OK.

Like the Slushygate officers, he did not make the list.

According to a Louisville Public Media investigation, Officer Lonzo McConico told internal affairs investigators he did not use force in an incident in which he sent a handcuffed teen to the hospital after sweeping his legs from under him.

Louisville Metro Government paid $189,500 to settle a resulting lawsuit, but McConico is not on the Brady list, even though he was later arrested in Texas in 2022 after allegedly hitting a woman.

“It’s problematic, because a defendant is entitled to a fair trial; the U.S. Supreme Court has said that a defendant is entitled to exculpatory evidence. And it could result in a wrongful conviction,” said Stinson, the police misconduct expert, about LMPD’s short list leaving off officers who had been untruthful with the department in high-profile cases. “These are serious issues.”

Louisville attorney Thomas Clay, who has represented a number of Louisville law enforcement officers who have sued city government in recent years, also took issue with LMPD’s short list.

“The fact that the number is what it is indicates to me that the Brady list process with LMPD is ineffective and flawed,” he said, adding he believes Gwinn-Villaroel should be on the list for her recent false testimony in a local civil trial and her past suspension for lying when she was on Atlanta’s police force.

In LMPD’s policy governing its Brady list, things that could call into question an officer’s credibility as a witness include:

• "Any sustained finding of misconduct that reflects on the member’s truthfulness

• "Any sustained finding of misconduct that indicates that member was biased;

• "Any credible allegation of misconduct resulting in a pending investigation that reflects on the truthfulness or possible bias of the member

• "Any pending criminal charge brought against the member; and

• "Any criminal conviction of the member that goes against the credibility of the member."

Further, LMPD’s Brady list policy defines untruthfulness as intentionally making a false, misleading or untrue statement, including in court proceedings, board or commission meetings or departmental investigations.

LMPD policy states officers who are called to appear as witnesses in court cases have an individual obligation to tell prosecutors about "any sustained disciplinary history that may impact upon their credibility and qualify as Brady material."

The absence of officers with troubling backgrounds from LMPD’s Brady list is not unique. A 2019 investigation by USA Today found at least 1,200 officers nationwide with “proven histories of lying and other serious misconduct” who escaped such lists.

Which LMPD officers are on the Brady list?

As of December, there were 10 LMPD officers on the department's Brady list. LMPD said it keeps only currently employed officers on its Brady list, and the names that appeared on the list were all listed as active officers according to a May 2023 roster of LMPD officers reviewed by The Courier Journal.

The officers on LMPD’s list are:

• Andre Shaw, who was put on the Brady list in August following a determination in March that he violated LMPD’s truthfulness policy. According to a letter from then-interim chief Gwinn-Villaroel to Shaw, he was “intentionally deceptive” when asked by a lieutenant about the whereabouts of another officer in August 2022. Shaw was issued a five-day suspension, but he is appealing it.

• Jay Moss, who was put on the Brady list in August as a result of the same case. In a March letter, Gwinn-Villaroel wrote she determined Moss violated the truthfulness policy when, like Shaw, he was “intentionally deceptive” when asked about the whereabouts of an officer in August 2022. Moss was issued a five-day suspension, which he is appealing.

• John Perkins, who was put on the Brady list in April after being arrested by the Jeffersontown Police Department for an alleged domestic violence assault. According to court records, he pleaded guilty to a lessened harassment charge in July. His next hearing is in April.

• Kenneth Brown, who was placed on the list in March 2014 for being untruthful to a commanding officer “about damage to his vehicle,” according to a note on December’s Brady list obtained by The Courier Journal.

• Tracy Gutterman, who was placed on the list in 2004 for being untruthful to a supervisor “about documentation from a physician.”

• Carrie Mroskey, who was put on the Brady list in 2003 for being untruthful “regarding her alleged misuse of sick time.”

• James Steffan, who landed on the list in 2010 for being untruthful to a sergeant about an auto accident.

• Carmine Zoeller, who was “terminated due to untruthful testimony to PSU” but was “reinstated upon appeal,” the copy of the Brady list obtained by The Courier Journal said. Zoeller has been on the Brady list since 2002.

• Angel Davidson, who has been on the list since 2006 after they “made inappropriate statements and was sustained on a violation of LMPD [policy] governing prejudice.”

• Jeremy Livers, who was put on the list in 2017 for “alleged prejudice against commanding officer of opposite sex.”

Reach reporter Josh Wood at jwood@courier-journal.com or on Twitter at @JWoodJourno.

This article originally appeared on Louisville Courier Journal: Brady list of LMPD officers with credibility issue omits notable cases