NBC Bay Area’s Investigative Unit has learned the San Francisco police department has a list of 133 officers and 10 civilians with disciplinary histories that the city’s top prosecutor says can make them vulnerable to attack on the witness stand and in some cases, imperil convictions.
The police department now says those 143 officers and civilians are on what’s called their “Brady list,” so named for the 1963 U.S. Supreme Court decision Brady v. Maryland. Under Brady, police and prosecutors must disclose anything in a witness’ past that could be used to challenge his or her credibility in a criminal case.
One officer with such a troubled past is Paolo Morgado, who was fired in 2011 but recently put back on the city payroll after an appeals court ruled the city denied his right to appeal his dismissal by the city’s Police Commission.
Morgado was caught on video in 2008, shoving a man against a wall after exchanging words with him as the man was crossing the street. But in his arrest report on the incident, Morgado stated that Charles Haynes was intoxicated and acting in such an “aggressive manner” he had to push him away.
“He lied,” said Haynes’ attorney, Ben Nisenbaum, who said his client was a military veteran who was not only sober, but had just helped a woman cross the street before the videotaped confrontation.
He stressed Officer Morgado was the clear aggressor but yet falsely portrayed his client as the instigator in the official report.
“He prepared a false police report that is a flat out lie, and there is not much more than you can say to it.”
The city not only fired Morgado for lying, but paid Haynes a $50,000 settlement.
But just recently, an appellate court ruled the city had to pay Morgado for the years he was off the force and afford him a chance to appeal his termination. While he is waiting for an appeals process to be finalized, the city is paying him but not allowing him to return to duty.
Nisenbaum said the department may have bungled Morgado’s dismissal, but the public should not pay the price.
“If you can’t terminate this officer,” he said, “I don’t know who could be terminated.”
While Morgado is in paid limbo, District Attorney George Gascon warned city supervisors last week that Brady baggage on some officers poses a significant challenge for his office.
“We’ve made the department aware that, frankly, officers who are on the Brady list are a problem for us to take forward to a jury,” Gascon said at a supervisors budget hearing, adding that Brady blowback played a role in the 40 percent drop in drug convictions his office attained over a five year period ending in 2017. Still, he couldn’t tell supervisors how many Brady officers are on the street or how many cases had to be scuttled because of them.
That troubled Supervisor Catherine Stefani, who urged Gascon to cooperate with the police department on Brady damage control.
“If there are a lot of officers that have these Brady violations,” she said, “that’s something we all need to know. If they are unable to take a case successfully to court, that’s something we all need to know.”
For its part, the police department told NBC Bay Area in a statement that simply because an officer is on the Brady list “is not necessarily an impediment to the successful prosecution of a case.”
The department stressed that state law forbids using Brady status alone to block promotions or to justify reassigning officers to non-field duties. In fact, NBC Bay Area has learned the department’s Brady roster includes several in supervisor ranks.
The attorney for the police officers union who is fighting to get Morgado and four other fired officers back on the street, Gregg Adam, did not return calls seeking comment for this story.
Nisenbaum, the attorney who sued Morgado and the city, said the department needs to make sure he never gets back out on the street.
“This is not an officer, it seems to me, that you ought to let be out on the street,” he said of Morgado, “to be in a position where his word would ever become an issue. Where his truthfulness would come into play.”
“So if he testifies,” Nisenbaum added, “yes, he ought to be confronted by this every time.”