In this May 31, 2019, photo provided by the Auburn Police Department via the Port of Seattle Police Department, Auburn police Officer Jeff Nelson, second from right, is shown at the scene where he shot and killed Jesse Sarey in a grocery store parking lot in Auburn, Wash. Although Nelson has been investigated in more than 60 use-of-force cases since 2012, he wasn’t placed on the King County Prosecuting Attorney’s “potential impeachment disclosure” list, or Brady List, which flags officers whose credibility is in question due to misconduct, until after he was charged in Sarey’s killing. (Auburn Police Department via Port of Seattle Police Department via AP)
SEATTLE (AP) — Isaiah Obet was behaving erratically and in mental distress in 2017 when Officer Jeff Nelson ordered his police dog to attack and then shot Obet in the torso. Obet fell to the ground and Nelson fired again, fatally shooting Obet in the head. The officer said his life was in danger.
The next year, Joseph Allen was crossing in front of Nelson’s patrol car when the officer swerved and pinned him against a fence, breaking both his ankles. His justification: Allen was a dangerous criminal.
In 2019, Nelson scuffled with Jesse Sarey after attempting to arrest him for disorderly conduct. He punched Sarey seven times and then shot him in the torso. After Sarey fell to the ground, Nelson killed him with a second shot to the forehead. He claimed Sarey was on his hands and knees “ready to spring forward,” which later was disproved by both video and witnesses.
Nelson’s actions in all three cases were outlined in a criminal complaint, eyewitness accounts, and police dashcam video obtained by The Associated Press. In the past decade, Nelson has been investigated in more than 60 use-of-force cases that involved choking suspects until they passed out, severe dog bites, and physical force that required medical care. But he was not on the King County Prosecuting Attorney’s list that flags officers whose credibility is in question due to misconduct – a designation that must be shared with defense attorneys.
Nelson was only added to its “potential impeachment disclosure” list, or Brady List, after he was charged with killing Sarey. A trial is set for February 2022. Mohammad Hamoudi, a federal public defender, said given Officer Nelson’s history, all of his cases should be reviewed. And he hopes his story will encourage prosecutors to track excessive force cases involving other police officers.
“It has to do with respect for the rules, the laws, and others,” he said. “If an officer lacks impulse control or the ability to exercise informed judgment, you can call into question how he investigates cases.”
The murder of George Floyd by a Minneapolis police officer has sparked a national conversation on police reform, ranging from defunding departments to enhancing training. But reform activists and civil rights advocates say prosecutors already have powerful tools at their disposal to curb bad behavior by police: They can use Brady Lists to shine a light on troubled officers, and they can then refuse to put forward cases from those officers with tarnished histories.
FILE – In this Aug. 24, 2020, file photo, family members and supporters of Jesse Sarey gather outside the King County courthouse in Kent, Wash., after Auburn police Officer Jeffrey Nelson pleaded not guilty to charges in the killing of Sarey in 2019. Although Nelson has been investigated in more than 60 use-of-force cases since 2012, he wasn’t on the King County prosecuting attorney’s “potential impeachment disclosure” list, or Brady List, which flags officers whose credibility is in question due to misconduct, until after being charged in Sarey’s death. An Associated Press investigation based on hundreds of documents and interviews with prosecutors, defense attorneys and experts on police reform found that prosecutors do not always used the lists to ensure accountability. (Steve Ringman/The Seattle Times, File via AP)
The AP found that prosecutors sometimes don’t even compile the lists and that wide disparities in what offenses land officers on them are prevalent across the country, with excessive force often failing to merit inclusion.
The AP also found that many prosecutors and police unions have gone to great lengths to keep Brady List information from becoming public.
Now, defense attorneys, public defenders, civil rights groups and even some prosecutors are calling for an increased use of Brady Lists and a broadening of the offenses that will land a police officer on them, while police unions are resisting those efforts.
Amy Parker of the King County Department of Public Defense called it imperative for officers’ violent histories to be exposed.
“As a career public defender, I have listened to prosecutors routinely make the argument that defendants with prior unlawful uses of force/crimes of violence are more prone to violence and lack credibility,” she said in an email. “If prosecutors are going to apply that standard to defendants, then the same standard should apply to police officers when judging their conduct.”
King County prosecutor Dan Satterberg argues excessive force doesn’t make an officer less credible. “An officer who was accused of using too much force in an unrelated arrest has nothing to do with the impeachment of their veracity,” he said.
Brady Lists stem from a ruling in the 1963 Supreme Court case Brady v. Maryland mandating prosecutors turn over exculpatory evidence to defense attorneys, including information that could be used to question the officers’ credibility. But the ruling did not define the steps prosecutors and police departments must take to ensure defendants are informed or whether lists of troubled officers must be kept at all.
The result, critics say, is a mishmash of policies that vary state to state — and even jurisdiction to jurisdiction.
FILE – In this Aug. 24, 2020, file photo, Auburn police Officer Jeff Nelson appears in King County Superior Court court in Kent, Wash. Nelson pleaded not guilty to charges in the killing of Jesse Sarey in 2019. Although Nelson has been investigated in more than 60 use-of-force cases since 2012, he wasn’t on the King County prosecuting attorney’s “potential impeachment disclosure” list, or Brady List, which flags officers whose credibility is in question due to misconduct, until after being charged in Sarey’s death. An Associated Press investigation based on hundreds of documents and interviews with prosecutors, defense attorneys and experts on police reform found that prosecutors do not always used the lists to ensure accountability. (Steve Ringman/The Seattle Times, File via AP)
Prosecutors in Atlanta, Chicago, Tulsa, and Pittsburgh told the AP that they don’t track officers with disciplinary problems, and Milwaukee prosecutors only listed officers who have been convicted of crimes.
The Dallas County district attorney’s list contained 192 names, with infractions ranging from making false statements to convictions for theft, assault, and driving under the influence. The Suffolk County, Massachusetts, prosecutor’s list included Boston officers who lied on their timesheets or embezzled funds. Louisiana’s Orleans Parish district attorney tracked officers who committed crimes, lied, or drove dangerously, but not violent arrests.
Dishonesty lands an officer on the list in Detroit, Denver, and Seattle, but using excessive force does not.
The Phoenix district attorney, along with prosecutors in Orange County, Florida, and Los Angeles, were among the few the AP found who include excessive use of force cases on their lists.
“It’s like there’s a huge continuum and the result is you don’t have the same procedures being followed not only across the country but within individual states,” said Will Aitchison, an attorney with Portland, Oregon-based Labor Relations Information Systems, which represents officers after they’ve appealed discipline orders.
Some states have attempted to pass legislation that would address the lack of consistency, including the Washington State Legislature, which approved a bill this year requiring county prosecutors to develop written protocols for collecting potential impeachment information by July 2022.
The California Legislature approved a bill last year that required prosecutors to maintain a list of officers who have had “sustained findings for conduct of moral turpitude or group bias,” but Gov. Gavin Newsom vetoed the measure due to the cost of such “a significant state mandate.”
When Larry Krasner was elected Philadelphia district attorney in 2017, his staff discovered a “do not call” list of police officers that had been compiled by a previous prosecutor.
The officers had a history of lying, bias, and excessive force and were barred from testifying “absent explicit permission from the highest levels of the district attorney’s office.”
Krasner shared the list with defense attorneys, who used the information to challenge the convictions of people imprisoned by testimony from those officers and has continued to provide timely Brady material to public defenders.
“When my client goes for a preliminary arraignment first appearance in court where they set bail, the prosecutor might disclose 20 to 30 or 40 pages of materials that they’ve generated on a particular police officer,” Philadelphia public defender Bradley Bridge said.
Using Brady List information, Bridge has filed motions to dismiss about 6,000 convictions based on officer misconduct, with more than 2,000 convictions thrown out so far.
Bridge acknowledges some of those released might be guilty.
“The problem is, there’s no way to know,” he said. “I have no idea how to evaluate whether they’re guilty or not guilty because the officer’s behavior in the cases is too tainted.”
Bridge has filed more than 500 petitions to reopen convictions tied to a sole officer who admitted falsifying records — Christopher Hulmes of the Philadelphia Police Department’s Narcotics Strike Force, who was charged in 2015 with perjury and tampering with public records. So far, 357 of those convictions have been dismissed, many involving drugs and guns, Bridge said.
Krasner said he feels prosecutors have both a legal and moral obligation to use Brady Lists, but that local police have pushed back.
Last month, he asked for the Philadelphia Police Department to be held in contempt for not cooperating with his request for officer disciplinary material.
Kym Worthy, the prosecutor for Wayne County, Michigan, which includes Detroit, also is disclosing Brady List material to defense attorneys and the public “because in an era of criminal justice reform,” she said, “it just makes sense.”
Worthy has compiled a list of officers who have committed offenses involving theft, dishonesty, fraud, bias or bribery, saying officers who commit these crimes have lost their credibility and won’t be called to testify.
St. Louis Circuit Attorney Kim Gardner also has said she won’t take criminal cases filed by untrustworthy officers and has an “exclusion list” with more than 50 names.
“The union’s predictable over-the-top ‘sky is falling’ reaction to any attempt to distinguish the vast majority of honest and hardworking officers from the few bad actors is one big reason why community relations with the people they serve are so frayed,” Gardner said.
Last year, police misconduct records were at issue in the hotly contested Los Angeles district attorney race between Jackie Lacey and former San Francisco District Attorney George Gascon, who had been the San Francisco police chief when now Vice-President Kamala Harris was the city’s district attorney and became the DA when she ascended to the state attorney general job.
Gascon had partnered with Harris and the police union to establish a “do not call” list that became the model for the state. After he won the Los Angeles election, he sent letters to local law enforcement agencies seeking the names of officers involved in 11 categories of misconduct, including bribery, theft, evidence tampering, dishonesty, and unreasonable force.
“If the officer’s history is such that we just don’t believe the officer, period, we will not use him,” Gascon said.
In this March 14, 2017, file photo, King County Prosecutor Dan Satterberg speaks at a news conference in Seattle. Auburn police Officer Jeffrey Nelson has been charged in the 2019 shooting of Jesse Sarey, and has been investigated in more than 60 use-of-force cases since 2012, but he wasn’t on the prosecutor’s “potential impeachment disclosure” list, or Brady List, which flags officers whose credibility is in question due to misconduct, until after being charge in Sarey’s death. An Associated Press investigation based on hundreds of documents and interviews with prosecutors, defense attorneys and experts on police reform found that prosecutors do not always used the lists to ensure accountability. (AP Photo/Elaine Thompson, File)
Settlement agreements — and many police union contracts — often prohibit the release of the names of officers named in disciplinary records, but Brady Lists can blow open those closed doors.
The contract between Seattle and its police department, for instance, prohibits releasing disciplined officers’ names. But the Brady Lists sent to the AP by the King County prosecuting attorney included 51 Seattle officers.
Seventeen of those officers had criminal charges filed against them, 26 had sustained findings of dishonesty, six had shown racial bias and one violated the department’s ethics policy.
An investigation by the Office of Police Accountability found that a Seattle officer violated policies against biased policing by posting offensive comments on social media in 2019. The office was prohibited from naming the officer and so referred to him in its report as Named Employee #1, but the Brady List identified him as Ron Smith.
One of Smith’s social media comments “stated that the Islamic religion was not one of peace, suggesting that the Islamic religion and all of its approximately 1.57 billion adherents were supportive of violence,” the OPA report said.
Another post targeted Gov. Jay Inslee, a Democrat, saying: “you weak wristed lefties don’t want border security … you want votes to keep your anti-American party in power,” the report said.
Smith resigned, but the OPA investigation did find that he engaged in “bias-based policing.”
Another Seattle officer on the Brady List was Salvatore Ditusa, who was working a side job flagging traffic when he approached three workers and “engaged in a diatribe that included multiple racial slurs towards African Americans,” the OPA said. Ditusa also resigned. The OPA found that he had also engaged in biased policing.
In Los Angeles, the battle over disclosing officer misconduct information traveled all the way to the state’s highest court.
When Jim McDonnell took over the Los Angeles Sheriff’s Department, he wanted to share the list of officers accused of misconduct with the prosecutor’s office, but both sides were concerned that a state law — the peace officer’s bill of rights — would prohibit the move.
After the police union filed an injunction to block any sharing, the case went to the state Supreme Court, which ruled in 2019 that prosecutors could be given the list.
One of the people named was homicide detective Daniel Morris.
In 2003, a car theft suspect had said Morris and other officers kicked, punched, and stomped on him – an accusation Morris denied to three different supervisors. But he eventually admitted to the beating, receiving a 30-day suspension.
That information was not shared with the district attorney’s office until 2019.
Ten years before that, Morris had investigated the murder of a gang member in Paramount, California, obtaining a search warrant for the home of Filipe Angel Acosta.
Morris testified that Acosta, who had no criminal history, was associated with a gang and he was charged with drug possession, with a gang enhancement.
Acosta refused a deal that would have involved admitting to gang involvement, but changed his mind and entered a plea of no contest after getting sick in jail and being hospitalized.
At no point did the district attorney reveal that Morris had been disciplined for dishonesty.
When Morris’ misconduct finally was disclosed, Acosta filed a motion to overturn his conviction because of the prosecutor’s Brady violation. The charges were dismissed.
As a 2013 report on the sheriff’s department by a civilian oversight group called the Office of Independent Review put it: “Instances of deputies lying in reports or during investigations do not simply affect the immediate case at hand. Instead, they may influence the outcome of every other case in which the deputy’s testimony is considered.”
Lost in the din of the Michael Jackson coverage late last month was news that the racially charged Jena 6 saga had officially come to an end — at least from a legal standpoint. The six African American teens from Jena, Louisiana, made national headlines and inspired emotional protests when they were charged with attempted murder for beating a white classmate in 2006. Many considered the charges too severe, and a massive demonstration was staged in September 2007 to oppose the ruling. After nearly three years of dramatic twists and turns, the case quietly wrapped on June 26. Now the Jena 6, as well as Justin Barker (the white teen who was beaten in the infamous skirmish), are free to move on with their lives.
The terms of the plea agreement were revealed in the course of a two-hour court hearing at the LaSalle Parish courthouse. Mychal Bell, the defendant who was initially convicted as an adult for aggravated battery against Barker but later pled guilty to a reduced charge in juvenile court after the adult conviction was overturned, had been sentenced earlier to 18 months under state supervision. Each of the five remaining defendants in the case — Corwin Jones, Jesse Ray Beard, Bryant Purvis, Robert Bailey, Theo Shaw — pleaded “no contest” to the misdemeanor charge of simple battery. Each was placed on non-supervised probation for one week and must pay a $500 fine and in most cases an additional $500 in court costs. In addition, a civil suit filed by the family of Justin Barker was settled when the Jena 6 defendants (including Bell) agreed to pay the Barker family an undisclosed settlement. Attorneys were not allowed to reveal the details of the settlement, but a reliable source has disclosed that the payment was approximately $24,000.
The Jena High School courtyard.
What lessons do we take away from the Jena 6 story? Six young men won’t be dragging a felony conviction into adult life. That’s reason for rejoicing, but as this saga approaches its third birthday, it’s fair to ask if we have learned anything.
“Jena 6” was briefly transformed into a popular movement that brought at least 30,000 people to the central Louisiana town of 3,000 in September of 2007.
Mass awareness of the Jena story was spread by the black blogosphere, radio personalities like Michael Baisden, internet-savvy organizations like Color of Change, and the brief but highly publicized involvement of civil rights celebrities like Al Sharpton and Jesse Jackson.
Unfortunately, the movement that culminated with the September 20th march lacked an end game. Nobody knew what came next, so not much did.
Or so it seemed.
The huge turnout on September 20th placed enormous pressure on Jena officials, but the key to success was community organizing, savvy media outreach, and strategic legal work.
My organization, Friends of Justice, helped lead the way. We started with the goal of recreating the coalition of reform organizations and legal firms that overturned a corrupt drug sting in Tulia, Texas. Long before anyone from the outside had taken an interest in the Jena story, we were sifting through legal documents, reading local newspaper accounts, and conducting dozens of personal interviews. When the facts were clear, we circulated a six-page narrative account describing what happened, why it happened, and what justice would look like.
Our narrative called for Judge J.P. Mauffray and District Attorney Reed Walters to recuse themselves from the Jena 6 cases. We supported a change of venue, a Department of Justice investigation, and a program of diversity training in the public schools. We knew none of this could be accomplished without a huge groundswell of indignation, but our first step was to unite and organize the affected community. The families and friends of the defendants gradually learned to withstand the pressure of an outraged white community and to tell their personal stories with verve and enthusiasm.
The families and friends of the Jena 6 had been gathering at a local black church and holding demonstrations on the steps of the LaSalle Parish courthouse long before CNN, NPR, and the Chicago Tribune were on the scene.
Just as the mainstream media was picking up on Jena, independent journalists and bloggers were warming to the story. Color of Change started collecting signatures for a petition and soliciting donations to a legal defense fund. Across America young black men and women were asking how they could help the Jena 6. The student body of Howard University got into the action and the civil rights community eventually swung its weight behind the Jena justice movement.
When I talked to the folks who came to the massive rally on September 20th it was quickly apparent that the folks who rode the buses were a bit fuzzy about the most basic facts. The general impression was that some white kids had hung nooses in a tree at the high school and black kids had retaliated by beating up one of the noose hangers. There was little understanding that Justin Barker, the victim of the December 4th beat-down, hadn’t been directly involved in the noose hanging incident or that the two episodes were separated by three months.
Jena, Louisiana, on September 20, 2007.
The facts in Jena were of secondary importance to the bus riders. They were drawn to Jena by personal experience. People told me they were there for a son, a boyfriend, or a nephew who had received grossly disproportionate treatment at the hands of the criminal justice system. These people had no trouble relating to the plight of the Jena 6.
When the crowds left Jena, the movement quickly ran out of gas. It didn’t matter. By that time the five Jena defendants still awaiting adjudication were represented by some of the best legal talent in America. D.A. Terry McEachern had been no match for the legal “dream team” that rose to the defense of the Tulia 46, and I knew Reed Walters would fare no better against the legal firepower he was facing. The facts were all on the side of the defendants. Another trial would have established the link between the hanging of the nooses in September and the tragic events of December. Reed Walters and his supporters in Jena’s white community simply couldn’t allow that to happen.
Five of Six: (from left) Theo Shaw, Jesse Ray Beard, Bryant Purvis, Corwin Jones, and Robert Bailey on the LaSalle courthouse steps following the settlement on June 26.
The Jena phenomenon demonstrates the power and the limitations of public narrative. Jena happened because public officials like Reed Walters and school Superintendent Roy Breithaupt didn’t want to revert to the apartheid world they were raised in, but they deeply resented the civil rights movement that had swept it all away.
Therefore, when Kenneth Purvis asked the high school principal if it was okay for black kids to sit under the tree in the school courtyard, these men froze. When white students sent a “hell no” message by hanging nooses in the school colors from that very tree, school officials insisted that the act was devoid of racial significance. When black students voiced their incredulity by gathering around the tree, Superintendent Breithhaupt called an emergency assembly in the school auditorium where D.A. Walters laid down the law. Turning to the black students who had been causing all the trouble, Walters reminded them that “with a stroke of my pen” he could make their lives disappear.
If Breithaupt and Walters had called a hate crime by its proper name, they would have validated the civil rights narrative they resented so deeply. So they resorted to threats. Nothing was going to change at Jena High School, and the black students would just have to suck it up.
Asked to explain his “stroke of my pen” remark at a pre-trial hearing, Walters admitted that he was angry with the students causing the unrest. The kids, he explained to the court, needed to “work out their problems on their own.”
Tragically, that’s precisely what happened.
Ultimately, Jena was a “Lord of the Flies” story about adolescent males functioning without adult guidance. If any of the remaining Jena cases had gone to trial, this version of the Jena story would have taken center stage. Unfortunately (and perhaps inevitably), this was not the way the Jena narrative unfolded in popular culture.
In Jena two powerful narratives competed for dominance. A “thug narrative” was concocted for folks who resented the civil rights revolution. Jena was about six black thugs doing what comes naturally and a Bible-believing prosecutor gutsy enough to hold them accountable. The hero of the thug narrative is Reed Walters, the victim is Justin Barker, and the villains are six black misanthropes. In the thug narrative, the noose incident in September was utterly disconnected from the the “attempted murder” of Justin Barker in December.
The people behind the massive September 20th protest embraced a “noose narrative,” which contrasted the lenient discipline meted out to the noose hangers in September with the grotesque prosecutorial over-reaction following the “schoolyard fight” in December. Reed Walters was a racist, this narrative argued, because he was way too soft on white kids and way too hard on black kids. In the noose narrative, the noose hangers are the villains, the Jena 6 are the victims, and the folks rushing to their assistance are the heroes.
While the noose narrative reigned in the blogoshpere, the thug narrative showed up in publications like the Jena Times, the Christian Science Monitor, and the Weekly Standard.
The “objective” mainstream media fell back on a “town divided” storyline in which angry proponents of the two competing narratives were given 15 seconds of fame.
This kind of noncommittal reporting left both sides vulnerable to criticism. Thug narrative people sounded racially insensitive and parochial; noose narrative folk appeared callous when they minimized the seriousness of Justin Barker’s wounds.
Lost in all of this back and forth was a simple irony: Reed Walters’ “stroke of my pen” oratory unleashed a chain of violence that reached a violent crescendo in the December 4th altercation he was now trying to prosecute as attempted murder.
What are the implications of all of this for criminal justice reformers? Are we doomed to hawk simplistic morality tales to a tiny demographic of like-minded activists, or is honesty still the best policy?
Perhaps the truth lies somewhere between these two extremes. The goal isn’t just to get the facts straight or to rev up the faithful; we are trying to change public perception. Cases must be carefully selected. If we want to gain and hold an audience, even the most compelling stories must be pared to their essentials.
But even stripped-down narratives must comport with reality. Both sides in the Jena imbroglio wowed the faithful at the cost of losing credibility with the general public. If we are trying to change public perception, an ear for nuance is essential. America has changed dramatically from the day when a reformer like Fannie Lou Hamer could be beaten half to death in Winona, Mississippi, for advocating racial equality. “Nothing has changed” rhetoric appeals to impatient reformers, but it won’t get a hearing in middle America. Similarly, crude references to the depradations of “black thugs” may play well in the small-town southland, but this kind of talk doesn’t work in the wider world.
The public officials at the heart of the Jena story personify the southern dilemma. They were raised with one set of rules, then forced to adopt a new rule book. No one helped them negotiate these troubled waters; they simply had to make the best of a bewildering circumstance. No wonder they are confused-who wouldn’t be?
When Jena’s infamous tree gained iconic significance, the town fathers and mothers cut it down and built a new addition over the spot where the tree once stood. This was the most creative response they could muster.
This southern shadowland is most apparent in the criminal justice system. How can men and women who grew up attending Klan rallies be expected to dispense equal justice in the dawning days of the 21st century? How can people reared in segregated schools and workshops be expected to fight for cultural diversity? America is a work in progress. We ain’t where we need to be-not even close. But thank God Almighty, we ain’t where we used to be.
Ultimately, simplistic narratives change nothing. The Jena 6 aren’t heroes and they aren’t villains; they’re just ordinary small-town kids trying to make their way in a confusing world. Their attorneys won a smashing victory last month because they knew what they were up against and honed their message accordingly. There’s a lesson in that for all of us.