'A Significant Liability': Portland Police May Be Violating the Constitution

Doug Brown

The Portland Police Bureau has major issues. It's time to add anther one to the pile.

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A new report from the city auditor's Independent Police Review (IPR) suggests that the PPB may not be compliant with the constitutional obligation to disclose evidence to defendants. They are required to do so thanks to the landmark 1963 Brady v. Maryland United States Supreme Court ruling which said suppressing potentially exculpatory evidence violates due process.

"Both the folks in the police bureau and in our office take an oath to protect and defend the constitution of the United States and Oregon," IPR Director Constantin Severe tells the Mercury. "For our office, that's a really big obligation, and for an agency that's as big as the police bureau to not have a Brady policy, it's just a significant liability."

The Mercury raised concerns about the PPB's compliance with the Brady decision in 2013.

The IPR investigation—conducted over the past two years with the summary released today, embedded in full below—raised a number of troubling issues: The PPB has no written policy on what evidence to turn over, officers don't get trained on what they're required to disclose, officer discipline histories are often shielded from both prosecution and defense attorneys, and, in one notable instance a few years back, a lieutenant appeared to have been retaliated against for having brought attention to the bureau's "legal and ethical" obligation to provide such material.

IPR found this out despite the PPB essentially stonewalling the investigation by not providing any documents the city's police watchdog requested (mostly in the the Larry O'Dea era, when the bulk of the investigation was done): "It's something that perplexed us as we were working on this because there were multiple requests to the police bureau," Severe said.

Not everybody in the PPB was blind to constitutional obligations, Severe said, but concerns went unaddressed.

"There were people inside the bureau who were trying to make the bureau have a Brady policy years ago," he said. "They faced a consequence for that."

The report highlighted a 2013 incident in which a lieutenant in the Professional Standards Division "became aware that the Police Bureau had failed to disclose disciplinary cases that had Brady implications to the Multnomah County District Attorney's Office," the document states. The lieutenant wrote a memo to then-chief Mike Reese (who's now the Multnomah County Sheriff) titled "Legal duty to disclose exculpatory evidence," noting at least five officers with credible allegations of lying—fireable offenses—filed against them. The Police Review Board—the usually cop-friendly internal discipline board—suggested the officers be fired but the chief overruled them. Defense teams have the right to know this—it could be used to question the credibility of a key witness in a case.

"I believe it is the Bureau's legal and ethical obligation to provide this information to the Multnomah County District Attorney's Office so they are fully apprised of any potential issues with the officers' credibility," the memo to Reese stated.

A week later, the lieutenant called the district attorney's office and said the PPB "may be withholding exculpatory evidence." Two weeks later, after drawing ire from supervisors, the lieutenant wrote in a PPB memo that "Chief Reese said recently during a hiring and promotion ceremony that we should above all else protect the Constitution and do the right thing when it is hard." The lieutenant again, a week later in a memo, highlighted the five likely-lying officers and how it was a constitutional liability to have their records shielded from attorneys.

The Professional Standards Division lieutenant "was subsequently reassigned and transferred to a precinct," the IPR report states.

"It is apparent from a review of contemporaneous records that the lieutenant’s supervisors were perplexed and frustrated by his actions," the report says. "In an undated memo on the letterhead of an assistant chief, a list of questions to be asked of the lieutenant by his immediate supervisor includes several that revolve around the appropriateness of his decision to notify the District Attorney and his failure to notify supervisors."

The IPR documented more instances of constitutional issues, and you should read the full report below. The auditor's office-based watchdog had three main recommendations for the bureau which, after they were revealed in the report, Police Chief Mike Marshman seems willing to accept.

IPR suggestion 1: "The Police Bureau should develop a written Brady policy that clearly articulates what constitutes Brady material, both exculpatory and impeachment, and how notifications to supervisors and prosecutors are made."

Marshman's response: "PPB agrees with this recommendation and has assigned the Policy Development Group to conduct the appropriate research, identify qualified subject matter experts, consult with stakeholders (District Attorney, Investigators, IPR, etc.), and develop a draft policy for universal review within ninety days."

IPR suggestion 2: "The Police Bureau should provide training to all its investigative personnel regarding their responsibility to properly document possible exculpatory Brady material and how to make notifications to supervisors and prosecutors."

Marshman's response: "PPB agrees with this recommendation and has assigned the Detective Division Commander and the Training Division Captain to jointly develop and recommend through written report to the Chief's Office a training program for investigative personnel that both sufficiently instructs members on their obligation under Brady and ensures comprehension of the newly crafted Brady policy. This training plan will be prepared and ready for implementation within 30 days from the completion of the Brady policy so that it may be delivered when the new policy is enacted for the Bureau."

IPR suggestion 3: "The Police Bureau should track all Brady related requests and their disposition in a centralized database."

Marshman's response: "PPB agrees with this recommendation and has assigned the Professional Standards Captain to develop a secure centralized database capable of tracking all Brady requests to PPB and material provided by PPB to the District Attorney in accordance with the PPB Brady policy whether a request was made or not. This database will be operational within sixty days and include an audit plan for ensuring it is used in accordance with the Brady policy."

Read the full IPR report below: