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The Police Bureau's practice of adhering to the 54-year-old landmark U.S. Supreme Court ruling in Brady v. Maryland has been "ad hoc'' at best, according to a study by the city's Independent Police Review Division. The Supreme Court decision, and subsequent case law, requires police to alert prosecutors about an officer's potential credibility problems on the witness stand or information that might be favorable to defense attorneys in a case. (Maxine Bernstein|Staff)

Portland police have no policy in place and received no training on their duty to alert prosecutors about an officer's potential credibility problems on the witness stand or the need to turn over information that might be favorable to defense attorneys in a case, a city review found.

An internal affairs supervisor who tried to draw attention to the problem was transferred and passed over for promotion by former chiefs.

The Police Bureau has had an "ad hoc" approach at best to following the 54-year-old landmark U.S. Supreme Court ruling in Brady v. Maryland, which requires such disclosures, according to the study by the city's Independent Police Review Division.

In January 2013, Lt. Larry Graham alerted Multnomah County District Attorney Rod Underhill that he believed the bureau wasn't meeting its obligation to disclose certain internal investigations of officers to prosecutors. He did so after sending a memo to the chief days earlier citing his concerns.

At the time, at least five officers faced credible allegations that they were untruthful. The allegations were that one lied to internal affairs about allegations of touching women co-workers; another wrote an inaccurate memo recounting a phone conversation with a bureau member; one lied in an internal affairs interview and in a police report; one was untruthful when asked by a sergeant why he was not in his assigned district and another was untruthful with interviewed by internal affairs and an outside police department about a driving incident.

Report recommended the Police Bureau:

1. Develop a written Brady policy that clearly articulates what material police must turn over to prosecutors that either raises questions about the credibility of an officer or might be favorable to the defense in a prosecution.

2. Train all its investigative officers and detectives on their responsibility to properly document any evidence that may be favorable to the defense in a case and how to notify their supervisor and prosecutors.

3. Track all Brady-related requests and any Brady-related material police provide to prosecutors in a central database.

(Source: Portland Independent Police Review Division)

In each case, the officer's supervisor or an internal review board recommended the allegations be sustained. In all but two, the police chief ultimately rejected the recommendations.

Graham didn't provide the officers' names but alerted Underhill to the bureau's website, which ran summaries of the investigations.

Instead of applauding Graham for highlighting a significant gap in bureau practices, then-Police Chief Mike Reese and his assistants, Director of Services Mike Kuykendall and Assistant Chief Eric Hendricks, were "perplexed and frustrated'' by Graham's actions, the report said.

They seemed more disturbed that the lieutenant had raised the issue with the county district attorney without their permission than working to fix the problem, the report said. They directed Graham to file multiple memos describing what he shared.

In one Jan. 25, 2013, memo to explain his actions, Graham wrote to his supervisors: "Chief Reese said recently during a hiring and promotion ceremony that we should above all else protect the Constitution and do the right thing even when it is hard."

A short time later, the chief transferred Graham out of internal affairs to a precinct, the report said. Graham also was passed over for promotion under Reese and Reese's successor, Chief Larry O'Dea, though he ranked high on the list for promotion to captain.

"I took my hits for that," Graham told The Oregonian/OregonLive. He was promoted to captain under the current chief.

Graham isn't named in the report but acknowledged that he's the lieutenant discussed. "Based on my understanding of the law, I believe we had a responsibility to provide that information," he said. "I felt like I did my due diligence.''

Constantin Severe, director of the Independent Police Review Division, said Graham "was absolutely correct in what he did." The review division is part of the city auditor's office.

The Supreme Court decision, creating what is known as the Brady rule, and subsequent case law requires police and prosecutors to provide defense attorneys with an officer's past record of any falsification of reports and all "credible allegations'' of untruthfulness that could affect their credibility as a witness, not just sustained findings.

"If they're not turning that over, they've got a problem,'' said Lane Borg, executive director at Metropolitan Public Defenders.

Prosecutors are required to learn and turn over any favorable information to the defendant about people acting on behalf of the government, including information about police officers.

Several criminal defense attorneys told the Independent Police Review Division that they couldn't recall ever receiving notice of potential Brady material involving a Portland police officer in a nonfederal prosecution.

Federal prosecutors in Oregon's U.S. Attorney's Office routinely take the proactive step of asking the Police Bureau about specific officers they may call as witnesses in a trial, the study found. The bureau has responded with memos reviewing the officer's personnel file and internal affairs complaint history, the report said.

The Multnomah County District Attorney's Office adopted its own written policy in October 2014 on how to handle Brady-related concerns and keeps what it calls a "Possible Impeachment Disclosure'' index, names of officers who raise red flags for prosecutors.

"This office is firmly committed to meeting the obligations imposed by the United States Supreme Court in the Brady case,'' according to a statement by Multnomah County District Attorney Rod Underhill. "We continue to work with area law enforcement, including the Portland Police Bureau to ensure Brady obligations are complied with.''

Officers end up on the index if they have a criminal conviction or their police agency found they lied or previously provided false testimony. A committee within the office reviews the index, and officers can contest their placement on it.

Thirteen Portland officers are flagged by the index now, though only a handful remain on the job. The rest were either fired or resigned. Two of the 13 are pending committee review in the district attorney's office because they may no longer hold police jobs that result in their court testimony.

Not shared with prosecutors, the study found, was information on several working officers who faced allegations of untruthfulness upheld by their precinct commander or an internal police review board but ultimately rejected by a police chief or police commissioner.

Since 2010, police have investigated 48 allegations of untruthfulness with 11 allegations sustained. Nine of those officers resigned; two were fired.

"Several attorneys viewed the City's failure to create a Brady policy as an intentional attempt to shirk its constitutional responsibilities," the report said.

A statewide work group recommended in March 2014 that police agencies in Oregon adopt a comprehensive policy to ensure they promptly share Brady material with prosecutors. Even though a Portland police captain and a deputy city attorney participated in the work group, the Police Bureau still has no policy in place three years later.

The work group had recommended police agencies adopt comprehensive policies to ensure prosecutors are notified when an officer has been untruthful, committed a crime, been biased or suppressed evidence.

Smaller police departments have adopted policies, including Tigard, Medford, Philomath, Sutherlin and Talent.

The study also found that the City Attorney's Office has given unsound advice on the issue to the Police Bureau, noting that former Chief O'Dea "expressed frustration" that the city attorney's office told him only the district attorney's office had Brady duties, not police.

Portland criminal defense lawyer Lisa Ludwig called the report and recommendations for a policy and training "long overdue and much needed." She said she wished the recommendations went further, calling for city attorneys and county prosecutors to attend the same training. "There have been too many occasions where lawyers were part of the problem,'' she said.

The Multnomah County District Attorney's office conducts annual training for its prosecutors to ensure they comply with Brady rules, Underhill said.

Police Chief Mike Marshman, appointed in late June, said he agreed with all the review division's recommendations. The bureau is working to draft a written policy and will train its officers once it's completed, Marshman wrote in a response to the report. The bureau will take advice from the district attorney's office, city attorneys and IPR as it works to draft a policy expected to be available for review within 90 days.

Borg, of Metropolitan Public Defenders, said he hopes the Police Bureau will also consult a criminal defense attorney for input in drafting a policy.

The bureau also will begin tracking all Brady-related inquiries and material shared with either the District Attorney's Office or federal prosecutors in a secure database that will be audited to ensure compliance with the future policy, Marshman said.

The study began in 2015 and took so long partly because the Police Bureau lacked documentation on how it handled Brady-related matters.

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian