Page 18 - January 2020 FOP Magazine

The Giglio problem
If you are a working police officer, you are going to be making a lot of arrests. And if you are mak- ing a lot of arrests, you will find yourself tes- tifying in the Circuit Court of Cook County. Unfortunately, doing your job well may someday cost you your job in this caustic
police environment in which we find our- selves.
A Cook County judge could end your career with one simple ruling. He could find your testi- mony to be “incredible,” or untrue, and then you have been “Giglioed.” We have written about this problem in the past and due to recent trends, it needs to be revisited, as many of our members are being destroyed by one flippant ruling by a single
judge.
First, let’s review exactly what it means to be placed on the
Cook County state’s attorney’s Giglio list. It has been called hav- ing to be “disclosed,” or a Brady obligation. No matter what it is called, it all boils down to the same thing — it destroys a police officer’s credibility as a witness.
The seminal case is U.S. v. Giglio. In 1971, the U.S. Supreme Court looked at a case where the prosecution failed to disclose to the defendant that a material witness had been offered le- niency in exchange for testimony. The court ruled that “when the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credi- bility” would be a due process violation. Evidence that would not have changed the outcome does not automatically require a new trial, and there must first be “[a] finding of materiality of the evidence” under Brady v. Maryland.
The Supreme Court reaffirmed this approach in U.S. v. Bagley in 1995, when the prosecution suppressed evidence favorable to the accused. It makes sense and has logic that if the prosecu- tion is in possession of evidence that may impact the credibil- ity of a witness, the defendant’s attorney should be allowed to bring that to the attention of the jury. We, as law enforcement officers, do not take issue with this. It is the next step where Cook County has contorted the ruling.
When a police officer testifies and the judge finds that the officer has been untruthful or dishonest with respect to a ma- terial issue, there has been ruling of record that essentially says the officer is dishonest. Cook County State’s Attorney Kim Foxx, who never misses an opportunity to impugn the integrity of Chicago Police Officers, has taken the position that under Gi- glio, they are required to disclose, without further analysis, to the defendant in every future case that a judge has found that the officer lacked credibility.
Foxx has compiled a list of these officers and it is part of the state’s disclosure to the defense. The law requires the judge in future proceedings to have a hearing about whether the prior ruling should be disclosed to the jury during the trial. The state
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and the judge are well aware that the failure to allow this evi- dence to the jury may be reversible error, and thus disclosure will happen almost every time. The easy way out for the assistant state’s attorney is to simply not call the officer as a witness. Hence, the hardworking officer will be per-
sona non grata in a witness chair in Cook County.
How does this happen in the first place? It’s simple. A judge does not want to find a defendant guilty for what- ever social justice reason, so instead of stating in his or her ruling that the court finds that the state has failed to meet its burden of proof, the judge takes the next step and says the offi- cer lied under oath. The officer has had his or her own trial and sentencing with those words; now, he or she is under suspicion
until his or her last day on the job.
Over the last year or so, this has happened many times to our
officers, and clearly there are a number of suspect judges who are continually making these types of findings. If you regularly testify in the Cook County Courts, you know who these judges are and avoid them.
The FOP has fenced with Foxx’s office, trying to explain con- cepts like “loose language” by the judge, what is actually ma- terial testimony, what is intentionally false testimony versus mistake or poor memory, and how the proliferation of body cameras and other video evidence clouds one’s perception and understanding of what occurred.
The state has obviously pushed back, reluctant to back our officers before the judges. The FOP is currently attempting to litigate some of these issues but has encountered many legal obstacles in reversing these rulings. Stay tuned, as success may be close.
What should you do if you find yourself in this position? First and foremost, if a judge makes a ruling that calls into question your testimony, contact the FOP immediately. Many times a re- view of the transcript shows that the judge’s ruling did not go to your credibility and disclosure is not necessary.
Do not tell a state’s attorney that you “may have been found incredible” until an FOP attorney confirms the ruling. No need to cause a problem before one exists.
The best advice is to be prepared when you are about to tes- tify. Don’t let an assistant state’s attorney who’s a month out of law school and has not prepped you to testify attempt to just “throw” you on the stand because it is a “nothing trial” and he or she wants to go home.
Insist on watching your body-worn camera, insist on being given the time to review your reports and previous testimony if it exists, speak with your partner and make sure you have a very clear understanding of the case and what occurred.
Until judges appreciate the consequences of their rulings and the state’s attorney’s office understands the Giglio ruling, we must be proactive and protect ourselves. You do not want to see your name on Foxx’s list.
TIM GRACE