When two Aurora police officers testified in a burglary case last year, they described a relatively routine arrest: They found a man who seemed to match the reported description of the suspect less than a block from the burglarized house and took him into custody.
But that's not what their body camera footage showed.
The judge paused the motions hearing to watch body camera footage and saw vast discrepancies between the officers' account and the video. One of the officers aggressively approached the man, with a Taser drawn, and the duo used physical force against the man almost immediately. The video showed the officers pulling jewelry from the man's pockets, though they testified they had just happened to see the jewelry hanging out of his pocket.
Arapahoe County District Court Judge Ryan Stuart not only found that the arrest was "a blatant violation of (the defendant's) constitutional rights" because the officers, Paul Timmons and Matthew Neely , didn't have enough evidence to detain the man, but also found the officers untrustworthy.
"They testified inconsistent with the video that the court observed, so the court finds that their other testimony regarding what happened when the video is not credible and the court is not willing to believe any of it," Stuart said, according to a transcript of the May 2, 2019, hearing.
After the judge's findings, the two officers joined the hundreds of current and former Colorado law enforcement officers with histories that may impact their credibility in court. Every district attorney in Colorado tracks officers whose pasts may need to be disclosed in court. But it's difficult to know which officers are included on prosecutors' lists — often called "Brady lists" after a U.S. Supreme Court decision — because there is no statewide system to track such officers, and district attorneys disagree whether the lists should be made public.
The Denver Post requested Brady lists from each of the 22 district attorneys' offices in Colorado. From the nine offices that provided a list, The Post compiled a list of 466 current and former law enforcement officers with criminal convictions, histories of lying, excessive force incidents or other backgrounds that could impact their credibility in court. The records offer insight into the often-opaque realm of police discipline in Colorado, but because some offices withheld their lists it's impossible to know how many other officers have a Brady designation, whether they're still working in law enforcement or whether an officer on a list in one jurisdiction has moved to another.
That means it can be difficult for people to know whether an officer testifying against them in court or issuing a ticket has lied before, or whether the officers entrusted with arresting powers to keep communities safe are trustworthy themselves.
"It all comes back to the accountability of police agencies," said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. "And that's important because having more transparency and accountability builds trust with community."
In Colorado, district attorneys often rely on law enforcement agencies to self-report disciplinary matters that could impact an officer's credibility. There's no uniform policy across the 22 judicial districts about what incidents qualify an officer for such lists, though certain disclosures are required by law, and sometimes district attorneys themselves don't know why an officer is included on their list.
"I rely on the law enforcement agencies to notify me if there is a concern," Sixth Judicial District Attorney Christian Champagne said. "The burden, as I see it, is really more on the law enforcement agencies to let me know."
That places defense attorneys — and the public — in a difficult place, said Tristan Gorman, legislative policy coordinator for the Colorado Criminal Defense Bar. Despite a 2019 law change, it is still difficult to obtain many police disciplinary files, she said, and defense attorneys are often left in the dark about officers' credibility.
"It's a situation that I see repeated in many contexts in the criminal legal system, where the DA or the police say, 'Just trust us,'" Gorman said. "And I'm just inherently distrustful."
"A moving target"
Prosecutors compile Brady lists to comply with their duty under Colorado's Code of Criminal Procedure and a 1963 U.S. Supreme Court decision in Brady v. Maryland to provide criminal defendants with information that might help their case, including information that may impact the credibility of a witness, including police.
That's a broad category that different prosecutors and law enforcement agencies might define differently. Each district attorney's office keeps its list in its own way and sets its own policies about what is included. Some, like the 18th Judicial District Attorney's Office, have lengthy written policies, and others operate using less formal agreements with law enforcement. Colorado law requires that law enforcement agencies notify district attorneys of officers' lying in some instances, but that law doesn't cover every interpretation of what could be considered "Brady material."
"It's a moving target, man, it's not well defined," 14th Judicial District Attorney Matt Karzen said.
Criminal convictions or charges are a common reason officers are added to a Brady list — at least 174 officers were added to lists in connection to criminal conduct , according to the records reviewed by The Post. Offenses included convictions for sexual assault , manslaughter and domestic violence as well as many drunk driving charges. In one instance, a Denver police officer working at the airport allowed his wife, an airport employee, to use his department badge so she didn't have to pay for parking.
Others were added to the list for lying during a criminal or internal affairs investigation, and a handful were included because of excessive use-of-force cases or allegations that the officer made racist comments.
Many of the documents were vague about the reason for the Brady letter, just noting that there is something in the officer's personnel file that may be of interest to the defense. For example, one Brady letter from the 18th Judicial District Attorney's Office simply states that an officer with the Lone Tree Police Department, whose name was redacted, was fired after an investigation into "matters" at the department.
Even after a defense attorney is alerted that there might be something in an officer's personnel file, it's not always easy to get the records in question. Defense attorneys have to subpoena the records and, often, a judge will review the records before deciding whether they're relevant enough to release them to the defense.
That's tricky, defense attorneys said, because they have to convince the judge that the file contains something important without knowing what's inside the file.
"The standard is that you have to show whatever's in there is material to your defense, but you have no idea if anything's in there or if anything material exists," said Ann England, a professor at the University of Colorado Law School and a former public defender. "Any other witness, if the DA should know that information, they would have to disclose that information to you. But we've carved out these pieces because of how we've negotiated in our society how to monitor police."
Trying to use the public records process is equally difficult, Gorman said. A law passed in 2019 deemed police internal affairs records to be public but mandates their release only if the requester can identify "a specific, identifiable incident of alleged misconduct involving a member of the public." Defense attorneys don't always know enough about the incident to request a record under those parameters.
"There are a lot of hoops to jump through and if it's not handled properly pretrial, it can turn into a years-long protracted legal process that may or may not end up with the right result," Gorman said.
No statewide tracking
It's difficult to know how many of the officers included on prosecutors' Brady lists remain employed in Colorado law enforcement. The state's Peace Officer Standards and Training Board maintains a database of officers who are certified law enforcement but would not provide that list, citing security concerns, though it will verify whether an individual officer is certified upon request.
Law enforcement agencies are not required to report Brady listings to POST, either, though officers are required to report criminal convictions. Since August 2019, law enforcement agencies also have to notify POST of any internal investigation that found an officer knowingly lied. Lawmakers' police accountability bill, passed this summer, will require POST to maintain a database of those officers starting in January 2022.
But even that database won't track all officers on a Brady list. There is no formal system for district attorneys to know whether an officer has a Brady letter in another jurisdiction, said Tom Raynes, executive director of the Colorado District Attorneys' Council. Instead, prosecutors have to rely on law enforcement agencies to thoroughly investigate a candidate during the hiring process.
Some, but not all, officers on the lists lost their jobs for the conduct that got them on the list, records show. Brady lists obtained by The Post show at least five instances where an officer was able to get a law enforcement job at another agency after being included on a previous employer's list.
In 2004, then-Douglas County deputy Nathan Ahlbrecht pleaded guilty to official misconduct, earning a Brady letter. He was later hired by the Elbert County Sheriff's Office, and in 2011 he pleaded guilty to a count of official misconduct there. He no longer works for the county, according to his Brady letter .
Another officer was able to move to Castle Rock Police Department after being fired for lying by the Littleton Police Department. At least two officers were able to join the Morrison Police Department after internal affairs investigations about their credibility at other Denver area departments.
The district attorneys' council in 2014 convened a group to create a "best practices" document about Brady disclosures for prosecutors to use, but it never got past the draft form, Raynes said. States including Arizona, Oregon and Pennsylvania are working on creating a more standardized process about Brady cops, he said, and Colorado is beginning to do the same.
"I think the time is right to get the project to the top of the pile again," Raynes said. "I have 12 new district attorneys coming in , I think it's a prime time."
Uneven public access
Want to know which law enforcement officers in your area have a potential credibility issue? Your ability to do so depends on where you live.
Of Colorado's 22 district attorneys, nine denied a records request for their Brady list: the Fourth, Seventh, Eighth, Ninth, 10th, 16th, 17th, 19th and 21st judicial district attorneys. Seven district attorneys provided a complete list of names: the First, Second, Fifth, Sixth, 13th, 20th and 22nd judicial district attorneys. The district attorneys in the 14th and 18th judicial districts released partial lists with dozens of officers' names redacted.
And four prosecutors' offices — the Third, 11th, 12th and 15th judicial district attorneys — did not respond to The Post's requests.
The prosecutors were able to deny the records request under the Colorado Criminal Justice Records Act, which gives public officials wide leeway to deny requests they think would be contrary to the public interest. The district attorneys who denied the requests often said they didn't want to violate officers' privacy or hurt their ability to get a job.
"Releasing a list of names may result in speculation that the officers on the list engaged in some wrongdoing that threatens to significantly impact career opportunities or promotions and could unfairly damage the reputation of those officers," wrote Jess Redman, assistant district attorney in Adams and Broomfield counties.
Other offices stated fears that releasing the names would discourage law enforcement agencies from reporting potential credibility issues to prosecutors.
"To release the names of officers on our Brady list, without first having a judicial review to determine if in fact the internal affairs file contains Brady material, would have a chilling effect on police agencies notifying my office of possible Brady issues," wrote Rich Tuttle, assistant district attorney in Mesa County.
In the case of the two Aurora police officers ruled not credible, prosecutors asked the judge to dismiss the charges against the burglary suspect.
But the two officers continue to wear a badge. They are investigating crimes as motorcycle officers, a department spokesman said.
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