When someone is charged with a crime, law enforcement testimony can play a crucial role in court, even determining whether the defendant lands in prison.

That’s why prosecutors nationwide must provide the defense with information that could call into question the credibility of officers or anyone else who might testify — whether that’s a history of criminal activity, dishonesty or some other integrity violation.

But how do prosecutors determine what to disclose about whom?

That’s where it gets complicated, and it’s the subject of an ongoing investigation by Wisconsin Watch, the Milwaukee Journal Sentinel and TMJ4 News called Duty to Disclose.

Many district attorneys maintain lists of officers accused of acting in ways that erode their credibility. These are often called Brady or Giglio lists, named for two U.S. Supreme Court rulings related to disclosure.

In investigating Milwaukee County’s Brady list of nearly 200 current or former officer names, reporters found inaccuracies and inconsistencies — raising questions about transparency in criminal proceedings.

How do prosecutors across the rest of the state and country disclose such information and what best practices do experts recommend?

Here’s what to know.

What are the standards for Brady lists in Wisconsin?

No clear state or federal standards exist for when officers should be listed for disclosure.

It’s up to district attorney’s offices, which are responsible for prosecuting crimes, to maintain such records.

The district attorney should know when an officer is referred for potential criminal charges. But when officers face non-criminal internal violations, prosecutors rely on law enforcement to share that information for consideration. That’s the case in Milwaukee County, according to District Attorney Kent Lovern. If such sharing doesn’t happen, his office may be left unaware.

Milwaukee County District Attorney Kent Lovern makes decisions about which officers to put on — or take off — his Brady list. He is shown being interviewed by reporters for Wisconsin Watch, the Milwaukee Journal Sentinel and TMJ4 News in January 2025. (TMJ4 News)

The accuracy of a Brady list hinges on clear communication between law enforcement departments and prosecutors, said Rachel Moran, an associate law professor at University of St. Thomas School of Law in Minneapolis who has researched Brady systems nationwide.

“That is where a lot of the sloppiness happens is that prosecutors don’t set up a good system with the police for even learning about the information,” Moran said.

In Duty to Disclose, reporters asked 23 law enforcement agencies in Milwaukee County for policies governing how to handle Brady material.

Only seven provided a written policy. The Milwaukee Police Department and eight other agencies said they lacked a written policy, while the remaining seven did not respond.

What do Brady lists look like in Wisconsin?

A 2024 Wisconsin Watch investigation found some of Wisconsin’s counties keeping spotty Brady records. Records requests to 72 counties turned up more than 360 names of officers on Brady lists. The tally was incomplete since 17 counties either denied a records request or said they didn’t keep track.

Another 23 district attorneys said they had no names on file, although some said they would reach out to local agencies to update their list.

Milwaukee County disclosed incomplete information at the time. But after TMJ4 News made its own request and threatened to sue, the county released a full list of 192 officers listed for a wide range of conduct — from a recruit who cheated on a test to officers sentenced to federal prison for civil rights violations. Some officers were listed multiple times.

Of more than 200 entries on the Milwaukee County list released in September, nearly half related to an integrity or misconduct issue, such as officers lying on or off duty. About 14% related to domestic or intimate partner violence, and nearly 10% related to sex crimes, including sexual assault or possessing child pornography. Another 14% involved alcohol-related offenses.

But the list omits some officers who have cost taxpayers millions in misconduct lawsuits and whose testimony judges have found not credible. That includes two detectives who, according to a civil jury, falsely reported a man’s confession to a crime.

What can go wrong if Brady disclosure doesn’t happen?

The consequences for failing to disclose Brady material can be dire, even leading people to be incarcerated for crimes they didn’t commit.

In one extreme case in 1990, an Arizona woman was convicted of kidnapping and murdering her 4-year-old son based largely on the testimony of a Phoenix police detective who had a history of lying under oath — details prosecutors did not disclose. As a result, Debra Milke sat on death row for 22 years before a judge vacated her conviction in 2014.

Official misconduct has contributed to more than half of wrongful convictions dating back to 1989, according to a 2020 study from the National Registry of Exonerations.

What are other benefits of consistent Brady list disclosure?

The lack of consistent disclosure has prompted some defense attorneys to maintain their own internal Brady systems based on information they learn, said Alissa Heydari, director of the Vanderbilt Project on Prosecution Policy and a former prosecutor.

That extra scrutiny makes it even more important for prosecutors to be aware of witness credibility issues.

“From a strategic point, you want to know the weaknesses in your own case and in your own witnesses,” Heydari said.

Consistent, transparent tracking of Brady information could also improve trust in police, Moran said.

“I don’t think this is an attack on police,” she said. “If anything, I think it could help the credibility of law enforcement to be more transparent about the officers with histories of misconduct.”

Some police unions have sought to influence how Brady lists are created or maintained — including in Los Angeles, Brooklyn and Philadelphia, according to Moran’s research.

Little federal enforcement and a lack of political incentive to challenge police power often prevent state or local tightening of Brady standards.

“Police misconduct disproportionately impacts communities that are often not heard and not represented in media investigations and not represented as well in politics and in places of power,” Moran said.

Following publication of the first Duty to Disclose installments, the Wisconsin Fraternal Order of Police criticized Milwaukee County’s Brady list release, saying officers could face “significant career and reputational damage.”

“We appeal to the legislature to establish a standardized, transparent process that ensures the protection of officers’ due process rights, while maintaining the public’s trust in the integrity of our law enforcement agencies,” the police group said in a March 4 statement.

A Milwaukee officer who appears on the county’s Brady list has called for inconsistencies on the list to be exposed.

What are best practices for maintaining Brady lists?

Brady list policies elsewhere range widely, with some jurisdictions more meticulous than others. Such policies should consider the rights of police and citizens, Heydari said.

Prosecutors are increasingly recognizing the importance of crafting such policies, but “my guess is that it’s a pretty small minority of offices that are doing it,” Heydari added.

John Jay University’s Institute for Innovation in Prosecution in 2021 highlighted 11 jurisdictions nationwide —from San Francisco to Philadelphia — that clearly spell out their policies.

The institute offers a variety of recommendations, including collecting as much information as possible from police departments about misconduct, providing staff with training, designating a group of people responsible for deciding when to list officers and crafting clear criteria for additions.

Puzzle piece of police officer's head — The lack of consistent disclosure by prosecutors has prompted some defense attorneys to maintain their own internal Brady systems based on information they learn about law enforcement officers’ histories. (Andrew Mulhearn for Wisconsin Watch)

“You don’t want to be frivolously adding police officers who, for instance, have unsubstantiated allegations against them,” Heydari said.

Moran cautions against making that criteria too narrow.

The Milwaukee County District Attorney’s Office uses strict criteria, listing officers only when they have a pending criminal charge, a past conviction or an internal investigation “that brings into question the officer’s integrity.”

That has left off, for instance, some officers who a judge found to lack credibility.

That’s in contrast to Cook County State’s Attorney Office in Chicago, which tracks adverse credibility findings — as do prosecutors in New York.

Last year, the Hennepin County Attorney’s Office in Minneapolis expanded the type of conduct

that may qualify as Brady material, announced specialized training for attorneys, created a new tracking system for judicial orders related to witness credibility and hired staff to exclusively focus on Brady compliance.

Are there any statewide Brady disclosure systems?

Arizona and Colorado have developed statewide disclosure systems, although government watchdogs have called them imperfect.

Colorado became the first state to mandate standards for tracking dishonesty in law enforcement in 2019. But a Denver Post investigation later found inconsistencies in the tracking system.

A bipartisan bill in 2021 expanded disclosure requirements, making Brady list policies and mechanisms transparent to the public. The legislation requires minimum disclosure standards for counties, with options to disclose more than is required.

Colorado maintains a searchable Peace Officer Standards and Training (POST) database that includes decertifications and disciplinary files including untruthfulness. The 2021 law required dishonesty flags be made public. However, the POST website emphasizes that the database itself is not a Brady list.

Still, more recent watchdog reporting found lingering gaps in the data and inconsistencies in enforcement.

Arizona lacks state mandates for tracking and disclosing Brady lists. The Arizona Prosecuting Attorneys’ Advisory Council does, however, publish a statewide database of listed officers — an effort that followed a 2020 investigation by ABC15 that found some prosecutors failed to keep accurate Brady lists. The council also publishes best practices for such disclosure.

Still, ABC15’s follow-up reporting has found continuing transparency gaps in the state.

Are Wisconsin leaders interested in standards?

Milwaukee County Supervisor Justin Bielinski said a statewide Brady standard and database could help the county manage liability in hiring. As Milwaukee County police departments aggressively recruit officers from other jurisdictions, those with a history of questionable policing may slip under the radar, he said. The problem of “wandering officers” is well documented.

“A state law change that would centralize this kind of record keeping or at least standardize the process for how the locals go about doing it could be helpful,” Bielinski said, adding that the county board lacks power to craft such standards for the sheriff’s department.

But Bielinski, who also serves as the communications director for state Sen. Chris Larson, D-Milwaukee, doubts legislation to create Brady list standards would advance in a Legislature controlled by Republicans who more often back police groups and “tough on crime” platforms.

Larson has a different view, saying that legislation for consistency standards across law enforcement agencies and a statewide database housed at the Wisconsin Department of Justice could garner bipartisan support.

“Even Republicans would want to have consistency with their law enforcement so that they’re held to the highest standards,” Larson said.

Wisconsin state Sen. Chris Larson, D-Milwaukee, is photographed during a state Senate session on June 7, 2023, in the Wisconsin State Capitol building in Madison, Wis. (Drake White-Bergey / Wisconsin Watch)

Asked if he supports statewide Brady standards, Wisconsin Attorney General Josh Kaul said district attorneys should retain their discretion, which depends on a range of factors and the circumstances of the cases.

“It’s not as simple as whether somebody is on a list or not,” the Democrat told the Journal Sentinel. “There’s more analysis that needs to go into it.”

Still, Kaul said any Brady lists should be accessible and include “as much consistency as possible.”

Ashley Luthern of the Journal Sentinel and Ben Jordan of TMJ4 News contributed reporting.

This story is part of Duty to Disclose, an investigation by the Milwaukee Journal Sentinel, TMJ4 News and Wisconsin Watch. The Fund for Investigative Journalism provided financial support for this project.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.

Want More Local News?

Civic Media

The Civic Media App