COMMENTARY: Transparency is the first step in ending police abuse
Removing secrecy is critical to a legal system that depends on truth.
August 18, 2020 - 9:00 pm
Soon after the world watched George Floyd’s brutal killing, it was revealed that the Minneapolis officer who knelt on his neck for nearly nine minutes had been facing 18 misconduct complaints. That information was quickly reported because Minnesota law allows citizens to access these records.
By contrast, Nevada is one of 21 states that keeps police disciplinary reports confidential.
Not only is this information kept from public view in Nevada, but it is also withheld in criminal cases with life-altering consequences. Judges and juries are unaware if an officer who built a case has a history of lying, coercing witnesses or other transgressions.
In some cases they are also kept in the dark about other critical evidence that would cast doubt on a person’s guilt.
This secrecy puts innocent Black and brown lives in danger both inside and outside the courtroom. As Nevada lawmakers consider reforms, their first step in creating a fair and accountable criminal justice system must be transparency. Two measures to begin with are public access to police disciplinary records and improvements to information sharing in the criminal discovery process.
These measures could have made a big difference to DeMarlo Berry, who spent 23 years in prison for a Las Vegas murder he did not commit. Mr. Berry was only a teenager when he was arrested for killing a restaurant manager during an armed robbery. While he sat behind bars, the actual culprit went on to commit another murder.
Three Las Vegas detectives were involved in his wrongful conviction. The detectives used suggestive tactics that may have prompted five eyewitnesses to identify Mr. Berry in a photo array. They falsely reported that each witness had independently and immediately picked Mr. Berry and failed to disclose witnesses who did not identify him.
While in jail, another inmate claimed to have heard Mr. Berry confess to the murder. At trial, the jailhouse informant testified about the alleged admission and denied receiving any deal for his cooperation. Decades later, the jailhouse informant admitted that he had lied. Detectives and the district attorney promised him leniency and fed him specific information on the crime to make the story sound more believable.
What happened to DeMarlo Berry can be prevented with transparency on police disciplinary records and stronger criminal discovery practices. If communities know about abusive officers, there will be more pressure to discipline and remove them. That will help deter the police misconduct that leads to wrongful convictions.
These measures would also provide judges and juries with the information they need to make accurate assessments about innocence and guilt. Law enforcement is constitutionally required to turn over evidence that is favorable to the defense, and Nevada has additional criminal discovery rules. However, disclosure practices vary by county, and materials are often turned over late, incompletely or not at all.
Without this evidence, the accused cannot prepare an adequate defense. For example, Mr. Berry was not given information that cast doubt on the reliability of the eyewitness identifications and jailhouse informant testimony. In addition, his defense attorneys were prevented from seeing whether the detectives in his case had a history of lying or coercing witnesses. If Mr. Berry could have raised concerns about the officers and their investigation, it could have impacted the outcome of his case.
Nevada lawmakers should lift the shield on police disciplinary files to create true accountability. Allowing access to this information will give communities confidence that their local police departments are effectively addressing complaints of abuse.
Nevada should also follow Texas, North Carolina and other states in requiring open-file criminal discovery practices. This would give defendants prompt and complete access to investigative records to ensure the accused have fair trials and can make informed decisions about guilty pleas.
Removing secrecy is critical to a legal system that depends on truth. More transparency on officer misconduct and investigations should be the starting point for criminal justice reform.
Michelle Feldman is state campaigns director for the Innocence Project. Jensie Anderson is the legal director of the Rocky Mountain Innocence Center, which represented DeMarlo Berry.