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The Solution: Why we need access to police misconduct records in Delaware

Part IV: The need for defense counsel access to these records

 · April 10, 2023

This is Part IV of a five-part series about how and why Delaware’s Law-Enforcement Officers’ Bill of Rights (LEOBOR) needs to be reformed, and reformed now. Part I addressed “The Problem” – how LEOBOR has kept police misconduct secret. Part II addressed “The History” – the history of LEOBOR in the First State. Part III addressed “The Myth” – how myths and facts have informed and influenced this debate. Part IV addresses “The Solution” – the need for defense counsel access to these records. And, finally, Part V, “The Public,” will address why public access matters. 

One of the hallmarks of our nation is the right to a fair trial. Within that cornerstone concept is the right to know the evidence against you. It’s the right to know whether there is evidence that exists that is in your favor. It is the right to know whether the witness testifying against you has a history of lying or is lying in your case. These rights are important, especially to someone who is facing the rest of their life in prison. 

I’m a trial attorney and I love it. I’m a Public Defender and I love it. It’s my job to make sure that people have a fair trial. And if you care about the Constitution, or the rule of law, or ensuring people aren’t wrongfully convicted, you also care about the right to a fair trial. 

If you are someone who loves John Grisham books, or true crime podcasts, or the latest binge-worthy Netflix crime documentary, I’d bet you care about a fair trial too. 

And one of the essential things about a fair trial is to make sure that witnesses are telling the truth. And it’s not just me saying it. The U.S. Supreme Court cares about this as well.1 

So, how does this relate to LEOBOR? If you’ve read the first three essays in this series, then you know that we have a problem in this state. And the problem is that Delaware’s LEOBOR keeps police misconduct records secret

Police are often the sole or the most important witnesses in a criminal trial. Their honesty matters. Their credibility matters. How they handle evidence matters. How they stop people and search their homes matters. Who they decide to routinely stop and search matters. Whether they use excessive force matters. 

It matters to those who are innocent but have been wrongly accused and convicted. I cite this statistic often but it’s true – more than half of wrongful convictions nationwide involve government misconduct and 35% of wrongful convictions involve police misconduct

Police, prosecutors, and judges also care about a fair trial. I know that they do because I have seen them time and again do the right thing in really tough cases. 

The U.S. Supreme Court also cares about the role of police and prosecutors in preserving a fair criminal justice system. In a 1995 case, the Court held that prosecutors have a duty to learn of any evidence favorable to the defendant that is known to the police.2 It is my position that this includes whether the police officer has a history of misconduct. 

In Delaware, also since 1995, police misconduct records have been confidential. As I wrote in an earlier essay, in the early 1990s, the Delaware Department of Justice (DOJ) initially opposed making police misconduct records confidential. Nevertheless, it eventually became law. 

In 1996, civil attorneys got a carveout. Civil attorneys are different from criminal attorneys. Criminal attorneys handle cases where a defendant faces prison time. Civil attorneys handle cases where a plaintiff seeks money damages or other relief. So, in 1996, civil attorneys were successful in getting access to police misconduct records when a plaintiff claims physical injury or damages against the police. 

But who was left out? Criminal defense attorneys. 

Under LEOBOR, criminal defense attorneys are not entitled to police misconduct records. And this matters. It matters because we represent people facing the rest of their lives in prison. We represent people who are regularly wrongly accused or over charged. And it is our job to fight for people’s right to a fair trial. 

A fair trial means that there is an even playing field for all parties. And that means that criminal defense attorneys should have the same access to police misconduct records that prosecutors and civil attorneys have. And we should have access to this information just like we have access to all types of other information and evidence. 

Prosecutors and defense counsel handle very serious cases. In turn, we handle sensitive information all of the time. Prosecutors and defense attorneys receive personal information including medical records, mental health histories, victim statements, autopsy reports, and graphic photographs. As officers of the court and as lawyers obligated to adhere to ethical standards, neither prosecutors nor defense attorneys can share these items except in limited circumstances. 

What’s more, judges routinely play a gatekeeping function and decide what’s admissible in a trial. Just like with all other evidence, it’s up to a judge what a jury should hear or see. If police misconduct records are directly provided to defense counsel, a judge will then decide whether the information is relevant and what can go to a jury. 

Since criminal defense attorneys are not entitled to police misconduct records under LEOBOR, we have to go through a special legal process in order to have any – albeit limited – access. Here’s how it works.

If a criminal defense attorney can establish a factual predicate that a police officer’s record contains misconduct, then the Court will privately review the records.3 However, this is a Catch-22. How are we supposed to make a factual predicate that the records will contain misconduct when the records are secret? 

Admittedly, the Court has granted some of these requests. My review of the published legal opinions has shown that less than a handful of cases have been granted in 27 years.4 Yes, in nearly three decades, there has only been about a handful of published cases where the Court has granted review. 

And here’s when the Court has granted these requests – when an officer was fired, or left the department and the parties didn’t know why (which itself should cause you concern since one of the parties was the DOJ), or when the officer was himself the criminal defendant.

I think that the third category above provides a good example of why the Catch-22 standard isn’t working. In a 2002 case, a Wilmington police officer was accused of rape.5 When the DOJ asked for the officer’s misconduct records, the Wilmington Police Department refused. Consequently, the DOJ was put in the peculiar position of having to ask the Court for the records. The Court granted the State’s request.

After the Court conducted a private review of the police personnel file, several records were released to the prosecutor, including the officer’s credibility concerning an automobile accident, credibility concerning sick time policy violations, an incident of use of force, and his association with known criminals. All of this would otherwise have been kept secret. 

The other problem with the Catch-22 standard is that even if we can provide a factual predicate, the Court privately reviews the records and decides what to provide to the parties. But because of attorney-client confidentiality, only defense counsel knows what its defense is and cannot share this with the State or Court. To put it differently, the Court may not know what is relevant to the defense’s case. 

Let me give an example. What if in my client’s case, the officer states that they smell weed in the defendant’s car but there is no weed in the car? And what if that officer has been accused of making that false allegation many times in the past in order to conduct searches of people’s cars but none of the complaints were substantiated? That may not seem like an issue to the Court, law enforcement or the prosecutor’s office, but it is relevant to my client’s case. 

LEOBOR’s restrictions provide a special and unique cloak of privacy for law-enforcement in the trial process. Juries are entitled to know whether the officer testifying under oath has a history of relevant misconduct, just like any other witness who testifies.

Police officers serve many roles in trials. They testify as eyewitnesses, expert witnesses, as well as evidence collection and preservation witnesses. Their testimony and the evidence that they control is some of the most important proof that a jury relies upon in finding someone guilty. 

A fair criminal justice system demands that all parties have access to the same information. Under LEOBOR, police, prosecutors, and civil attorneys have much more access to these records than defense attorneys. Defense attorneys play an important role in protecting the Constitution and should have the same access when someone’s liberty is at stake.

As U.S. Attorney General Merrick Garland recently stated, “Criminal defense attorneys put the government’s case to the test, and so doing, they make sure that every part of our system is fairer, more equal and more just.” LEOBOR reform must ensure the same access to police misconduct records for all attorneys. 

Misty Seemans is an Assistant Public Defender in Wilmington, Delaware

1United States v. Bagley, 473 U.S. 667 (1985).

2Kyles v. Whitley, 514 U.S. 419 (1995). 

3Snowden v. State, 672 A.2d 1017 (Del. 1996).

4Mitchell v. State, 89 A.3d 477 (Del. 2014), as revised (Apr. 8, 2014) (denied records review); State v. Mobley, 2023 WL 107387 (Del. Super. Ct. Jan. 3, 2023) (denied records review); State v. Tilghman, 2010 WL 703055 (Del. Super. Ct. Feb. 25, 2010) (parties agreed to records review); State v. Torres, 2002 WL 31478167 (Del. Super. Ct. Oct. 31, 2002) (granted partial records review); State v. Watson, 846 A.2d 249 (Del. Super. Ct. 2002) (granted partial records review); State v. Steele, 2001 WL 1221082 (Del. Super. Ct. Aug. 29, 2001) (granted records review); State v. Johnson, 2015 WL 13333324 (Del. Com. Pl. Oct. 23, 2015) (denied records review).

5State v. Watson, 846 A.2d 249 (Del. Super. Ct. 2002).

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