What is a Brady letter and why is it an issue in the 2018 campaign for San Juan County Sheriff and Prosecutor?
The Brady doctrine is a pretrial discovery rule that was established by the United States Supreme Court in Brady v. Maryland (1963). The rule requires that the prosecution must turn over all exculpatory evidence to the defendant in a criminal case. Among other things, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a record for knowingly lying in an official capacity.
In 2014, there were 22 officers names on Whatcom County's Brady list. The reasons for issuing the Brady letters ranged from being untruthful under oath to making a doctor's appointment, cancelling it and using the sick day to go to at Seahawks game to submitting a report bearing a signature that was not authentic.
Zac Reimer, who was then an officer with the Whatcom County Sheriff's Office and is now San Juan County Undersheriff, was on the list for submitting a report that he knew bore a signature that was not authentic.
The incident that resulted in Reimer's Brady letter occurred in 2009 according to Reimer. A civilian ride-a-long forgot to sign a waiver. Another person, connected to the civilian through a business relationship, signed the document for her. Reimer erred when he didn't print the name of the person who signed it under the signature. It was on an official document requested by a superior.
Because of changes in case law, a Brady letter was issued in 2014 for the five-year-old incident.
Whatcom Prosecuting Attorney David S. McEachran wrote a letter to Reimer in September 2018 after the Brady letter became an issue in the election:
"I went over your file and the incident that gave rise to the finding in 2014. The courts have placed the duty on prosecuting attorneys to provide disclosure of "Potential Impeachment" on all of our witnesses and most importantly law enforcement officers. Consequently, whenever an incident is reported to my office by a law enforcement agency we have to review it to determine if the incident is "potentially impeaching", for the officer/witness and must be disclosed to the defense. The names of all officers are then included on a list that must be given to the defense on any and all cases in which the officer testifies. The repercussions for not including this information can result in overturned convictions and Washington State Bar complaints for my attorneys.
"Whenever I am asked to review an incident I review it under the guidelines the courts have established and then make a decision. If I feel that the incident is a serious matter concerning the officer's credibility, I can refuse to call that officer in any trials in which he or she was involved. If I don't feel it is a serious matter, but still is "potential impeachment" material I have to pass that on to the defense and the officer is on the "Brady" list. In all letters that I issue to the law enforcement departments, I try to delineate the major issues from ones that I have to disclose, but are not major.
"In your case I did not feel that this was a major incident and felt you were and are a very good and trustworthy officer. In the letter to Sheriff Elfo I stated, "My staff and I have spent a great deal of time reviewing this matter and in reaching this decision. Notwithstanding that, we are very willing to work with Deputy Reimer in present and future cases. We do not view him as a deceptive officer but have decided that the notice has to be given under these facts and under the case law and authorities dealing with discovery matters."
Unfortunately the courts have not given us the authority to remove witnesses from the list on the basis of time. I am sorry to hear that this has come up in the election you mentioned. If the parties were honest, they would review the letter that I wrote and understand that this was not a major incident and does not define you as an officer. However, today elections don't seem to be honest and people are not careful with the facts."
There are questions about how the existence of the Brady letter was handled by county Sheriff Ron Krebs and the county Prosecutor Randy Gaylord. Both had a duty to disclose its existence. The Sheriff should have informed the Prosecutor and the Prosecutor had a duty to inform defendants' attorneys. According to emails and letters, it appears Gaylord was unaware of the letter for almost two years after Reimer started with the San Juan County Sheriff's Office. It also appears that notification of defendants' attorneys may have been sporadic.
No questions have been raised about Reimer's performance as a San Juan County Deputy.
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