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  • illustration by neil perry
The US Constitution is painfully clear when it comes to cops and prosecutors' responsibility upon finding evidence that might prove helpful, instead of damaging, for a defendant: Before a case goes to trial, cops must share whatever "exculpatory" evidence they might possess with prosecutors, and prosecutors are then supposed to do the same with defense attorneys.

Has a cop been written up for dishonesty—thereby damaging her credibility on the stand? Or have investigators probing a murder maybe found a confession note suggesting someone besides the suspect pulled the trigger? In both cases, that evidence would have to be disclosed rules first sketched out in a 1963 US Supreme Court case called Brady v. Maryland.

Because of Brady, dishonesty often means the end of a cop's career—in that a cop no longer fit for the stand isn't worth much in the field. But as the Mercury reported almost two years ago—after noting at least three instances in which cops found to have lied by a review board kept their jobs—that's not always been the case in Portland.

Those concerns caught the eye of local prosecutors and advocates way back when. And now, after years of quiet concern, the city's Independent Police Review office has finally announced a cage-rattling investigation into how and whether the Portland Police Bureau is complying "with its obligation under the United States Constitution."

In a statement sent this morning, the IPR office—overseen by the city auditor's office, and not the cops—lays out the following areas of focus:

When the policy review is complete, IPR will issue a public report. IPR’s review will cover three areas:

1) How the Police Bureau’s current policy and procedures define Brady material and an officer’s constitutional duty.

2) Training received by officers on their obligations under Brady.

3) Police Bureau’s current policy on disclosing to prosecutors when the Police Bureau has material that would fall under Brady.

The timing is interesting. The city's latest batch of Police Review Board reports, first detailed earlier this month by the Mercury, shows some seeming improvement in how the bureau deals with cops found to have been dishonest. Three cops whose credibility and trustworthiness were impugned over lapses like dodging parking tickets or lying during internal affairs interviews all resigned after unanimous "termination" votes by the review board.

In previous years, the same kind of misconduct also earned unanimous or near-unanimous termination votes from the PRB—whose members were equally alarmed and troubled over the lapses in honesty. But as the Mercury reported, citing public records the city initially refused to provide, then-Chief Mike Reese softened the board's recommendations by going with demotions or a demerit letter.

The current shift might be due to the implementation of a new "discipline guide" in which certain kinds of misconduct are now clearly matched to certain ranges of punishment—with dishonesty treated exceedingly harshly. But it's clear the issue's been festering for some time. Even before that reporting, the Multnomah County District Attorney's Office confirmed it's interested in working with the bureau to better identify cops with damaged credibility. (In some other jurisdictions, it's worth pointing out, those cops are kept on curated, publicly released "Brady" lists.)

It also comes at the same time the Mercury has learned the Multnomah County District Attorney's Office is talking with [Chief Mike] Reese's office and the city attorney about how to better identify officers whose credibility is in such doubt they won't be called as witnesses at trial.

"This office currently is in discussions with the city attorney and the police bureau. But in a general way," Deputy District Attorney Don Rees, stressed. "It's not linked to one specific incident or officer."

And although that conversation started before the recent outcry, advocates and attorneys welcome it and quietly hope everyone keeps talking.

"There is a perception among the public in Portland that law enforcement misbehavior is not really being taken seriously by management at the police bureau or frankly by the DA's office," says one attorney who asked to remain anonymous.

But of note, neither the DA's office nor the chief's office seemed as concerned as the PRB about some of the allegations detailed in 2013. The bureau said at the time it could recall only one cop on the list and wasn't looking to immediately grow the thing. It also defended its efforts to share information with prosecutors and said dishonesty among officers would be left up to prosecutors to decide and that it wasn't "a big issue."

Of course, one of the officers targeted for dismissal, per that earlier story, was rapped for failing to properly fill out a use of force form and then lying to cover his or her tracks. That's a bedrock part of police work—the ability to report out basic details on something as controversial as the use of force. And yet?

One wrinkle is how to treat an allegation sustained by an [advisory] review board like the PRB—but not by the chief, who, along with the police commissioner, makes the final determination on wrongdoing.

It's not clear at this point how those earlier talks have fared, and how they might fare now under a new police chief, Larry O'Dea. And it's also not clear if the IPR investigation will focus solely on dishonesty or on other issues involving physical evidence. But the announcement by IPR—another aggressive assertion of its oversight powers that's likely to discomfit cop brass—suggests they maybe haven't played out as satisfactorily as some might have hoped.

Here's the full IPR announcement:

The Independent Police Review (IPR) of the City Auditor’s Office will conduct a policy review of how the Portland Police Bureau complies with its obligation under the United States Constitution to provide criminal defendants with evidence that is material to their guilt or innocence or as to punishment.

The constitutional duty stems from a landmark 1963 US Supreme Court decision in Brady v. Maryland which states, “that the suppression by the prosecution of evidence favorable to an accused …. violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Later court cases have extended the duty to disclose material exculpatory evidence to police agencies. Generally police agencies fulfill their obligations under Brady by notifying prosecutors of the exculpatory evidence, prosecutors then notify a defendant’s attorney.

When the policy review is complete, IPR will issue a public report. IPR’s review will cover three areas:

1) How the Police Bureau’s current policy and procedures define Brady material and an officer’s constitutional duty.

2) Training received by officers on their obligations under Brady.

3) Police Bureau’s current policy on disclosing to prosecutors when the Police Bureau has material that would fall under Brady.