CINCINNATI (FOX19) - Have the police who patrol your community lied on the job or been convicted of a crimes?
Do you know?
They’re supposed to.
A more than 50-year-old Supreme Court ruling requires prosecutors to seek and disclose evidence to defense attorneys and the accused that is material to his or her guilt or punishment. This includes evidence about their untruthfulness; certain prior criminal convictions and evidence of bias; excessive use of force.
We asked prosecutors across the Tri-State – from Hamilton County to Warren County to Northern Kentucky – to give us their lists, or a copy of their “Brady List."
Most said they do not keep an actual list and some told us they don’t have any issues so there simply is no need for one.
One prosecutor is even proud to say he keeps information from the public.
“In Butler County, eggs are still cheaper in the country," Prosecutor Mike Gmoser said. “I can still do it without a list. I can do it through the grand jury. It keeps it secret that way.”
The Hamilton County Prosecutor’s Office does keep a lengthy and detailed list, one that currently has more than 100 officers.
They promptly handed it over a few hours after we asked.
“We look for anything that a defense attorney might be able to use to impeach an officer’s testimony such as untruthfulness, being fired for using excessive force, making racial slurs, etc…” said Julie Wilson, a spokeswoman for the prosecutor’s office.
“We rely on law enforcement agencies to send us the information and, after we review the information, we decide who goes on the list. Each police department/agency is responsible for notifying our office of officers in their employ who potentially have Brady issues. Prosecutor Deters periodically sends a letter to each department/agency reminding them of their obligation in this regard."
Their list includes mostly officers from Cincinnati police and deputies or correction officers from the Hamilton County Sheriff’s Office, the two largest agencies in Hamilton County.
Some of the highest-ranking officers in the list include two who appear on their twice: the former jail boss for the sheriff’s office, Charmaine McGuffey, who is running to try to unseat her former boss, Sheriff Jim Neil, next year, and a Cincinnati police lieutenant, Michael Fern.
McGuffey is listed for disorderly conduct and public intoxication and again for dishonesty, both in 2017.
Fern is on it following a criminal conviction (pleaded guilty to operation of willful disregard of safety of persons/property and speeding in 2014 and “Intentionally gave inaccurate information on a police form” in violation of a police rule in 2018.
Another Cincinnati police lieutenant who is now a captain, Danita Pettis, landed on the list after she was reprimanded for violations of a CPD rule related to “interference with an investigation” and “disclosure of confidential information” in 2018, which occurred while she was a lieutenant, a copy of it shows.
Two officers who were a part of the internal case that ultimately led to Pettis’ reprimand also are list: Patrice Brooks and Monique Martin, following “sustained finding of dishonesty” for both after they were “found to have made false statements in Internal Investigation Interview," the list shows.
Even minor infractions can qualify an officer for Brady.
Cincinnati Police Officer Dennis Barnette is on the list after pleading guilty in 2015 to a minor misdemeanor “deer regulation.”
His name appears just before Cincinnati Police Officer Darrell Beavers, who pleaded no contest to attempted tampering with evidence and illegal use of a minor in nudity oriented material and was fired.
Some prosecutors offices do not have a list, per se.
Gmoser says he only compiles Brady-related information on officers if they come into testify at grand jury but says he fully meets all Brady requirements.
He has conceded in the past he hasn’t done enough to track officers’ issues, relying on police agencies to alert him to issues, but now says his office keeps better track of it.
At the same time, however, he vows “I won’t weaponize Brady” by keeping a paper or electronic list that can be published by the media or possibly used as a retaliatory move by police officials trying to punish cops.
While some may criticize that approach, others appreciate his discretion.
One high-ranking Cincinnati police official grew so concerned over the potential that top police officials would submit his name to the Hamilton County Prosecutor’s Office for Brady List consideration, he sued to try to stop it.
This came after a peer review panel overturned discipline against him in an internal case they determined had “several conflicts of interest” that could be considered “not fair or objective."
A judge tossed the suit out, and he is trying to resolve the issue through arbitration.
So far, that police official, Captain Jeff Butler, is not among Cincinnati police officers on the list.
But another Cincinnati police officer who coincidentally has the same name is: Jeffrey T. Butler, following a January conviction on a prostitution charge.
Kenton County, Commonwealth Attorney Rob Sanders says they simply don’t need it because no one on it would be serving as a law enforcement officer in their area.
We received a similar explanation from the Clermont County Prosecutor’s Office, where we were told: “We are not aware of any officers within our jurisdiction that must be disclosed or included on a “Brady” list. Therefore, our office does not have a Brady List.”
Warren County Prosecutor Dave Fornshell said his office created a list for us when we contacted them for this story.
Fornshell said records that comprise the list already are tracked in his office’s case management system.
They send an annual letter to police agencies asking them to provide names and information about employers if they have committed acts that qualify for placement on the Brady List, essentially anything that could impact their credibility as a witness in court: criminal convictions, incidents of dishonesty, use of force or serious administrative disciplinary cases, he said.
Fornshell, who is on the executive board for the state prosecutor’s office, acknowledges that the way Brady is handled varies county to county and state to state.
“There is little guidance of what constitutes getting on the list,” he said. “The problem that I have with Brady is you don’t necessarily know if something is (worthy of being considered on) Brady until you are well down the rabbit hole in a particular case. It’s a pretty broad standard.”
So, he said, the state board raised the level of expectation to ask law enforcement agencies to turn over anything that might qualify and then prosecutors review to determine if it should be included.
If you are more inclusive in who consider to put on the list to make sure you know as much about any issues that might come up in court on any given law enforcement officer, you are more prepared, he notes.
But that makes the initial review of each officer before placing them on the “list” or considering them Brady material all that more important, he said.
“Our goal is to make sure you don’t get burned by some judge or appellate court somewhere. It’s something we take very, very seriously because we have this competing obligation to make sure we are producing whatever information we have under the Supreme Court ruling and on the other side of it make sure we are being fair to law enforcement officers.”
A local veteran defense attorney says it’s hard to say if the current system is working, though he is not aware that any Brady material has been withheld from him in all the cases he’s handled in the past four decades.
“Prosecutors may not think that material that they have in their possession is Brady material,” Charlie Rittgers said. “It’s not an intentional thing. It’s just that they may not feel they have to disclose it.”
At times, Brady requirements have led to a war of words among prosecutors and law enforcement.
Pike County Sheriff Charlie Reader and Pike County Prosecutor Rob Junk traded accusations in Facebook posts and statements to FOX19 NOW earlier this year.
The dispute erupted after Junk said Brady concerns prompted him to ask the sheriff in a May 3 letter to refrain from participating in any criminal investigation in which Reader may be a potential witness unless and/or until Reader has been cleared of wrongdoing.
At the time, a state auditor investigation was underway into alleged misconduct by Reader.
He has since been indicted on 16 charges including theft in office, tampering with evidence and conflict of interest. Reader has pleaded not guilty. He is suspended with a criminal trial expected to begin in April.
Junk asked Reader back in May to supply a list of all deputy sheriffs who have been disciplined for any offense remotely reflective of untruthfulness, whether at the Pike County Sheriff’s Office or any other law enforcement agency.
Junk’s letter informed Reader the Pike County Prosecutor’s Office “cannot in good conscience” call one of his employees, Corporal Robyn Cottrill, as a witness in any case now in light of new information about his felony investigator.
Junk told FOX19 he learned the information from “a very confidential, extremely reliable source. It was basically somebody whose word would be impeachable.”
The corporal, Junk wrote in a Facebook he has since deleted, had a charge of dishonesty upheld when she worked at the Ross County Sheriff’s Office as a corrections deputy.
She was found to have engaged in sexual activity in her car parked near the Ross County jail while she was on break from her job “with a former jail inmate who was also a convicted felon who had been to prison and lying about it” during the course of an investigation, he wrote.
Cottrill worked at the Ross County Sheriff’s Office from Oct. 7, 2013 to Oct. 145, 2015, when she resigned, according to the Ross County Sheriff’s Office.
Reader fired back in defense of the corporal, saying she “has had an excellent career and even the Ross County Sheriffs decided to keep her based on her acceptable work.”
Late last year, Junk asked for special prosecutor to investigate Reader after the auditor’s office received the detailed, anonymous complaint on the sheriff in November, just days before the arrests three generations of a family in connection with the 2016 Rhoden family massacre.
Four members of the Wagner family face the death penalty if convicted of the shooting deaths of eight members of the Rhoden family in Pike County on April 22, 2016.
The prosecutions are expected to take years and cost millions.
All four suspects have pleaded not guilty and are housed at separate jails.
Now, it’s not clear if Reader’s issues will impact the Wagner trials.
Ohio Attorney General Dave Yost has declared it will not.
“This will have no impact on the Wagner capital murder cases, as Sheriff Reader was not the primary witness for any issue of fact or law. Ohio sheriffs act with integrity and honor, and this rare occurrence does not reflect the excellent work they do daily throughout their counties,” Yost said in June.
Recently, however, it also came to light that a state agent who was once identified as the lead investigator in the Rhoden family massacre was put on administrative leave.
A spokesman for the Ohio Attorney General’s Office has said that also will not impact the cases.
“Michael Trout was placed on administrative leave on June 4, 2019 for matters completely unrelated to the Pike County investigation that took place in April of 2016. As the special prosecutor confirmed in court last week, Trout was not a grand jury witness in the Wagner cases. Trout, then an agent, served as an investigator on the case, but was placed on administrative leave in his current position as a supervisor. Over thirty law enforcement agencies inside Ohio and nearly two dozen law enforcement agencies from 10 different states, along with federal partners and Canadian authorities assisted with the Pike County investigation – a review of the agent’s work in a different role after the investigation completed has no bearing on the pending cases brought against the Wagner family.”