By N.C. Watchdog Reporting Network | June 3, 2021 at 12:34 PM EDT – Updated June 3 at 12:34 PM
Locked away in prosecutors’ offices across North Carolina sit documents declaring certain law enforcement officers in their jurisdiction too untrustworthy to testify in court.
Prosecutors can issue the documents, known as Giglio letters, when they become aware of information about a police officer or sheriff’s deputy that would call into question their credibility on the stand. When a district attorney decides that an officer is not credible, the officer is likely to no longer be called as a witness in court. Being functionally unable to testify in court means they cannot make arrests or be involved in handling evidence.
Sometimes officers and prosecutors call them “death letters,” because they’re career killers.
But in North Carolina, those letters seldom see the light of day. There’s also no formal system for tracking or reporting the letters, or the untrustworthy officers they’re written about.
That may change soon under a new provision proposed by state lawmakers. The House and Senate each passed bills that would require centralized reporting of the letters, creating a database that law enforcement agencies could consult when hiring new officers. The legislation would also give officers a process for challenging complaints made against them.
But the documents would still be off limits to the public.
An N.C. Watchdog Reporting Network request for letters written by the state’s 42 district attorneys’ offices over the past five years drew uniform denial.
Prosecutors — relying on guidance from the North Carolina Administrative Office of the Courts — refused to produce any Giglio letters, citing an exemption in state open records law for criminal investigation records. Most also refused to answer basic questions, including how many such letters their office had issued in that time.
Court system insists on secrecy, DA’s cede decision making
In 1972, the U.S. Supreme Court sided with criminal defendant John Giglio and granted him a new trial because the prosecution did not turn over key evidence about a witness’s credibility. Now, all evidence that could feasibly be used to impeach a government witness is constitutionally required to be turned over to the defense.
This gave birth to the “Giglio letter,” a warning from a judge or, most often, a district attorney, to a law enforcement agency that a certain officer is not a reliable enough witness to be called to the stand.
Lists of these officers are often called “Brady lists,” after a similar precedent-setting court case.
Several other states, including South Carolina and Florida, make them explicitly public. Federal prosecutors also issue Giglio letters, including against North Carolina officers.
Although lawmakers say there’s only been a handful of these letters in recent years, there’s never been an accurate public estimate of just how often law enforcement officers are considered too unreliable to put on the stand.
The effort from the reporting network sought to bring some light to the subject.
As requests streamed in from reporters, emails show officials at the N.C. Administrative Office of the Courts – the judicial agency that oversees court operations across the state – contacted elected district attorneys with guidance on how to respond.
“Office of General Counsel has consistently advised that Brady/Giglio letters to the employing law enforcement agency or lists of officers that are Brady/Giglio impaired are confidential criminal investigative records under G.S. 132-1.4,” AOC assistant legal counsel Corrine Lusic wrote on May 19, citing a broad exemption in North Carolina’s public records law.
The agency’s understanding, Lusic wrote, was that “the only reason DAs have these letters/lists is to fulfill the State’s obligation to disclose to the defense” any details that might cast doubt on an officers’ testimony against the accused.
The next week, on May 26, Lusic emailed prosecutors a second time to tell them about two webinars she’d host that Friday to coach them on how to respond to requests for this story.
As a result of the coaching from the court system’s staff, nearly every response from a district attorney for this story was the same: Giglio/Brady letters are investigative records and cannot be released.
There is no law or regulation requiring district attorneys, who are independently-elected constitutional officers, to follow advice from the Administrative Office of the Courts.
Nearly all — 34 of 42 elected district attorneys – responded to the reporting network’s request for this story. Ten of those prosecutors said their office did not have any responsive records, or weren’t aware of any such letters. Nearly all cited a version of the guidance offered by Lusic, the court system lawyer.
Only one district attorney – Garry Frank of Davidson and Davie counties – answered a question about how many of the letters his office had issued since 2016 and said he had letters on file.
“We have reviewed our files and I believe I have sent 3 letters since 2016 and they were to 3 different agencies,” Frank wrote in an email Thursday morning. “None of these were the so-called ‘death letters,’ but were notification that the info I had received would require notification to the defense in any case that would require the individual officer to testify in a criminal prosecution.”
Several prosecutors simply directed those questions to the Administrative Office of the Courts. Spokespeople for the AOC declined repeated requests for an interview on the agency’s insistence that these letters are not public record.
The law defines a record of a criminal investigation as information gathered by law enforcement “for the purpose of attempting to prevent or solve violations of the law.” The statute says that can include anything from witness statements and surveillance video to details from confidential informants.
Mike Tadych, a Raleigh attorney who frequently represents the media in public records litigation, said the advice given by the court system lawyers and parroted by district attorneys doesn’t square with state public records law.
“They don’t fit the record of violations of law or criminal intelligence information that is defined in the statute,” Tadych said. “And if they’re not specifically statutorily exempt, then they’re public. That’s about the crux of it.”
Tadych said he also takes issue with the Administrative Office of the Courts’ role in the effort to release the records.
“I understand the AOC’s desire to have consistency, but the consistency needs to comport with the law,” Tadych said. “I find it disappointing that there is almost a gatekeeper function being imposed on public records requests made to district attorneys in North Carolina.”
Bills would create database, leave letters secret
State lawmakers have advanced legislation this year to take a closer look at Giglio letters, and to compile them statewide. The bills would exempt the letters from public release, but would require any officer or agency head who gets a Giglio letter, as well as the judges or district attorneys who send a letter, to send a copy to the state’s Criminal Justice Standards Division.
That’s a substantial change from how Giglio letters are currently used in North Carolina.
“There’s not necessarily any current requirements for an agency to do anything in terms of a deputy that gets a Giglio letter, although it basically does render a law enforcement officer unusable,” said David Mahoney, Transylvania County’s sheriff and president of the N.C. Sheriffs’ Association, which supports the proposal
The state legislature would get an annual report on the total number of letters issued statewide, but that wouldn’t be broken down by law enforcement agency.
Republican State Sen. Danny Britt, a key sponsor on the bill, said that information would be stored in the database if lawmakers wanted to drill down later. He also said the total number of letters would be made public, though he added that he doesn’t think the documents themselves should be public.
Law enforcement associations have argued at the General Assembly that the letters are one-sided missives from district attorneys, and that officers don’t have a way to appeal if they feel the letters are false or unfair.
Britt said there’s a range of reasons district attorneys could question an officer’s ability to testify, and that prosecutors don’t always follow up.
“It might be something that just cast shade (on an officer’s testimony),” Britt, who represents Robeson and Columbus counties, said. “But, oftentimes, it could be information that was not fully investigated.”
If the complaints hold and are serious enough, officers could be decertified. The N.C. Department of Justice maintains a list of all decertified officers in North Carolina.
Criminal defense attorneys weigh in
The Watchdog Network spoke with several defense attorneys who are skeptical that a database, especially one maintained in secret, would advance the pursuit of justice for their clients. It is already a constitutional requirement and part of North Carolina law that prosecutors turn over any Giglio material, which includes Giglio letters, to defense attorneys.
But defense attorney Alex Charns, who has worked in Durham for 38 years, said prosecutors rarely turn over Giglio material of any kind, let alone formal letters barring law enforcement officers from testifying. And his experience is hardly unique.
Charns said if a database of Giglio material was created, especially one that would prevent law enforcement officers from leaving one agency and joining another, it would be an improvement. To make that happen, though, Charns said it would require a significant cultural shift in law enforcement and prosecutor offices to accurately track and report officer misconduct.
District attorneys, he said, are disincentivized from writing formal letters that could harm law enforcement officers.
“Prosecutors protect officers and deputies because they’re elected officials and find it in their interest to do that,” Charns said.
Charns has never seen a Giglio letter despite litigating several criminal cases where officer misconduct was clear, a letter should have been written and turned over to him as the defense attorney, he said. In those cases, Charns said he has had to petition the court for any Giglio material at all, when that should be proactively turned over by prosecutors.
“We don’t get Giglio/Brady material now. So if we’re not getting it now, how is a database that’s going to be incomplete, lacks transparency and is secret going to help the matter?” Charns said. “It won’t.”
This story was jointly reported and edited by Laura Lee, Frank Taylor and Jordan Wilkie of Carolina Public Press; Gary Dotson of The Charlotte Observer; Cathy Clabby, Tyler Dukes and Jordan Schrader of The News & Observer; Nick Ochsner of WBTV; Michael Praats of WECT; Travis Fain and Ali Ingersoll of WRAL; and Jason deBruyn of WUNC.
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