City officials have identified one out of every 17 Denver police officers as having discipline issues serious enough that their courtroom testimony may be suspect.

Those officers were listed as witnesses in more than 1,100 cases in the past 12 months, a review of court data maintained by the Police Department shows.

The names of the officers show up on a list maintained by the offices of the city attorney and Denver District Attorney Mitch Morrissey. Prosecutors use the list to alert defense lawyers anytime one of the officers might be called as a witness on a criminal case.

But despite safeguards put in place that are meant to ensure defense lawyers know which officers have a history of deception or lawbreaking, the system is not always effective or efficient.

Attorneys say judges are inconsistent when it comes to letting them see the personnel files of officers on the list so they can determine how best to cross-examine them.

And no system is in place to alert defendants when an officer is under investigation for what the Police Department calls “departing from the truth,” and notifications also aren’t sent alerting a defense lawyer if an officer gets fired for such a violation. As a result, defense attorneys never learned about the seven officers who were ultimately fired this year for being untruthful. Meanwhile, even while under investigation for being untruthful, those officers were listed as witnesses in nearly 60 cases in the past 12 months and jurors were never told about the allegations.

“There is no uniform practice in Denver court as to how this information is conveyed,” said Chris Baumann, head of the Denver trial office of the Colorado State Public Defender’s Office. “It’s very frustrating. You know the information is out there, and you know it is in the possession of law enforcement.”

City officials began maintaining the list of officers in 2008 after a year-long debate among city officials over whether defense lawyers should be alerted to police discipline that could be favorable to a defendant.

The list is meant to put the city in compliance with the requirements of a 1963 court case, Brady vs. Maryland. In that case, the U.S. Supreme Court ruled that prosecutors are required to divulge evidence favorable to a defendant.

Despite the creation of the list, Baumann said defense lawyers remain frustrated. More often than not, a defense lawyer never will get to see the details of the case that ended up putting a police officer on the list, Baumann said.

If an officer appears on the list, the prosecution alerts the defense.

The notification reads: “The District Attorney has received notice that this officer has been subject to an administrative finding that may or may not prove relevant if he or she testifies in a criminal matter. Information regarding this administrative proceeding should be obtained through the Denver Police Department’s Civil Liabilities Bureau.”

The city has taken the stance that notification is sufficient to meet the city’s requirement to divulge evidence favorable to a defendant. It is left up to a defense lawyer to pursue getting any further information, and that pursuit often is fruitless, Baumann said.

Anytime a defense lawyer tries to use the list to subpoena the personnel files of an officer listed as a witness, the city attorney’s office will fight back and argue the officer has privacy rights, Baumann said. Prosecutors also will seek to block release, saying that the information is irrelevant, he added. Police officers also can have their own personal lawyers fight the subpoena. It is left up to the judge to determine whether the personnel files see the light of day, Baumann said.

“Judges across the board are reluctant to release these personnel files,” he said. “Some of them will release the files. Others are very reluctant to do so, and they will ask us to make certain records to justify our request that we simply can’t make.”

Officers on the list

A review of the list, called the “asterisk list” by defense lawyers and prosecutors, sheds some light on the inner workings of discipline at the Police Department at a time when the city has initiated a new, get- tough policy for officers who engage in wrongdoing.

The list includes the names of about 81 officers still on the force out of 1,434. At least eight officers on the list have two or more violations. One officer has three violations.

The officers on the list have been found to have committed violations in at least one of the following categories: departing from the truth, violating the law, making false reports, making misleading or inaccurate statements, committing a deceptive act, engaging in conduct prohibited by law, engaging in aggravated conduct prohibited by law, conspiring to commit conduct prohibited by law, soliciting or accepting a bribe, removing reports or records, destroying reports or records or altering information on official documents.

At least seven officers are on the list for driving under the influence. At least 13 of the officers are on the list for violations involving dishonesty, considered a fireable offense at many police departments because such a finding could call into question whether an officer would testify truthfully.

And those are just the ones whose cases have been resolved with a finding that the complaint was “sustained.” An untold number of other officers may be under investigation for dishonesty but testifying on any given day with no notice to the defense.

How others handle alert

Defense attorney Darren Cantor said the lack of notification of officers under investigation causes problems. Internal affairs investigations can take years to resolve and, meanwhile, officers could end up testifying in dozens of cases even though their superiors are preparing their justification for firing them, Cantor said. Defendants and jurors may never learn an officer had major credibility issues.

Some jurisdictions have different systems for identifying officers with credibility problems. Carol Chambers, the district attorney for Colorado’s 18th Judicial District, has a committee that regularly reviews the personnel files of officers and alerts defense lawyers to issues.

Chambers, who declined to comment, even was sued once by an Aurora police sergeant after she warned defense lawyers she believed the sergeant “lacks integrity” and is dishonest. A judge in 2005 ruled in Chambers’ favor, finding that Chambers could continue sending the alerts to defense attorneys.

In Los Angeles, after scandal hit an anti-gang unit in the police department, prosecutors began providing to defense lawyers exculpatory evidence involving corrupt police officers.

Prosecutors there also set up a system that dealt with officers who were under investigation for wrongdoing. Once the internal affairs investigation concluded, the prosecution reviewed all the criminal cases that required testimony from the officer. Then prosecutors alerted defense lawyers who handled cases involving the officer, starting from the date the officer engaged in wrongdoing.

When questioned about the lack of providing notifications when Denver officers are under investigation, Lynn Kimbrough, the spokeswoman of the Denver district attorney’s office, said officers also are presumed innocent until found guilty.

She added that prosecutors in Denver actually don’t have possession of the personnel files and therefore can’t provide defense lawyers anything more than a notification that an officer appears on the asterisk list.

“We meet our notification requirements, but we don’t bump up against privacy and personnel issues for having a file we’re not really entitled to have,” she said.

Case dropped over cop

In at least one recent case, Denver’s asterisk list helped prompt the dismissal of criminal charges.

In that case, a defense lawyer saw that an officer listed as a witness in a heroin possession trial was on the asterisk list. The lawyer subpoenaed the officer’s personnel file. The city had suspended the officer, Eric Sellers, for 40 days for misleading internal affairs investigators about what investigators determined was an unwarranted attack on a volunteer firefighter.

Prosecutors moved to drop the heroin possession charge in part because of the officer’s credibility problems, Kimbrough confirmed.

In one instance, defense lawyers prepared for a first-degree-murder trial of Quinn Guytan unaware that one of the officers listed as a witness in their case, Ricky Nixon, was under investigation for “commission of a deceptive act” following allegations of excessive use of force.

The defense only learned the officer might have credibility problems during jury selection when potential jurors were questioned about whether they knew any of the witnesses in the case. At that time a potential juror told the lawyers she couldn’t sit on the jury panel and be impartial. She said Nixon had been deceptive about a conflict with her cousin, an offense that eventually prompted Nixon’s firing this year.

The officer’s misdeeds never ended up as evidence during the trial. The jury convicted Guytan, now 25.

“Mr. Guytan has got a whole host of issues on appeal, and many will deal with discovery violations,” said Barry Lancaster, one of the defense lawyers on the case.

The asterisk list is updated regularly.

The union that represents police officers doesn’t have any quarrel with the list, said Detective Nick Rogers, president of the Denver Police Protective Association.

“It doesn’t automatically disqualify anyone from testifying,” Rogers said. “As far as I know, it’s never really harmed anyone. It’s a lot about nothing.”

Safety Manager Charles Garcia, a former public defender who now runs the Police Department, declined to comment.

The creation of the asterisk list followed criticism from Independent Monitor Richard Rosenthal, who reviews investigations into alleged wrongdoing by police.

Overseer took action

Rosenthal, shortly after his arrival in Denver in 2005, began raising alarms over the city’s lack of a system for dealing with officers who had earned a reputation for dishonesty at their own department.

Rosenthal urged the city to start firing officers who had been found to have “departed from the truth.”

He also said the city needed to develop a system to ensure fairness for defendants in criminal cases when officers with a history of untruthfulness ended up as witnesses.

“In those cases where an officer is ‘sustained’ for such conduct, but is not terminated by the department, there appears to be no current process in place to evaluate whether it is necessary to reassign the officer to a position where the officer would not be needed to testify in future judicial proceedings,” Rosenthal said in one 2006 report.

Since then, the city has put in place a new discipline system that replaced one that largely relied on past discipline decisions to guide punishment for misbehaving officers.

Under the new system, specific punishments are spelled out for specific violations. The city now is supposed to fire officers who are deceptive on the job, unless mitigating factors are found. The Police Department also has agreed to let Rosenthal suggest reassignments for officers with sustained violations for lying.

Christopher N. Osher: 303-954-1747 or cosher@denverpost.com