A coffee maker. An attendance sheet. A report on a public official’s tantrum. They were all used to blacklist cops. But how? That’s a question many law enforcement officers have found themselves asking after appearing—for reasons opaque to them—on an unreviewable list of “bad” cops called a Brady list.
In the landmark 1963 case Brady v. Maryland, the Supreme Court ruled that prosecutors must disclose evidence that may help the defense. It later extended that disclosure obligation to include potential integrity issues of a government witness (e.g., a police officer). The Court never required prosecutors to keep a list of such misconduct, nor did it specify how such a list should operate. But prosecutors began keeping these lists for administrative purposes, helping them track and designate witness issues.
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Across most of the country, prosecutors possess largely unchecked power to list cops as credibility liabilities. Because police duties often require testimony, being blacklisted can derail careers or end them outright. Placement on the lists, variously called “Brady lists,” “Giglio lists,” “Lewis lists,” and “do-not-call lists,” can become a scarlet letter. You aren’t much use as a police officer if you can’t go to court.
Using dozens of open records requests, the Law Enforcement Legal Defense Fund, where we work, surveyed the internal policies of 50 large prosecutors’ offices and found that the process of getting on—or ever getting off—such a blacklist is largely a black box. Officers can be listed based on unproven allegations, on the say-so of a single prosecutor, without being told why, and with no means to appeal a Brady designation.
Analyzing all 50 states, we found that only 11 have statutes regulating Brady lists to some extent. Most of those fall short of granting substantial due-process rights to officers before or after a listing. Some are Kafkaesque in their design, with Tennessee granting listed officers the right to view the evidence against them but expressly foreclosing the right to sue to get off the list. Under Nebraska’s new law, officers can appeal but have no right to see what evidence was used to list them.
Elsewhere, law enforcement lacks even these protections, and the decisions remain entirely at the discretion of local prosecutors. It’s a system that lends itself to arbitrary and even abusive listings.
That is exactly what happened in Fairfax County, Virginia, in 2021. Security staff asked Commonwealth’s Attorney Steve Descano and his chief deputy Kyle Manikas to pass through the public security entrance to the Fairfax County Courthouse. Security footage showed Descano becoming visibly upset, throwing an umbrella, while allegedly yelling at the private courthouse security guards. Descano also reportedly cursed and said, “Don’t you know who I am? I’m the chief law enforcement officer in Fairfax County!”
The Fairfax County Sheriff’s Office, which oversees courthouse security, responded to the scene and took a report. Descano and Manikas refused to cooperate with the investigation, but after viewing the footage, two lieutenants concluded that “both Attorneys demonstrated behavior unsuited for an officer of the court.” The video and report leaked to the media, and Manikas responded by placing the two lieutenants on a Brady list for “false and misleading” statements. An internal sheriff’s office investigation cleared the law enforcement officers, yet they remain on the list five years later.
Another officer in Sparks, Nevada, was added to a Brady list for returning a broken coffee maker to a retailer while on duty. In Phoenix, an officer was listed for signing an attendance sheet for her husband, who later failed to show up as expected.
Thirty of the 50 offices whose policies we reviewed allow unsustained and pending allegations to justify a listing, and 80 percent identify no standard of proof used to assess the evidence against an officer. More than half use criteria extending beyond traditional credibility issues (e.g., perjury, fraud etc.), including excessive force complaints and biased social media posts. In San Bernardino, California, “moral turpitude” can get you listed, while undefined “mistreatment” of witnesses is enough in Virginia Beach.
Who makes these decisions matters just as much as how they’re made. In some jurisdictions, it’s entirely in the hands of a single person, often a line prosecutor or the elected prosecutor. Norfolk, Virginia’s chief prosecutor, Ramin Fatehi, wrote in an email response, “I take Brady designations extremely seriously, which is why I do them myself and do not delegate them to anyone else.”
Fatehi’s diligence is no substitute for due process: under Virginia law, the listed officer has no independent recourse. Only if an officer is fired and decertified can he see and rebut the evidence used to justify that termination—and that still won’t necessarily change a Brady listing.
To remedy these flaws, our report identifies ten principles for Brady-list reform to promote transparency, fairness, and redress. For example, the rules should be written and publicly available, based on strong evidence, and reviewed by a committee. Officers should be notified beforehand (they rarely are) and have the ability to appeal a decision to an independent body.
Every one of the 50 offices met at least one of these ten principles. Most met a few. None met most, let alone all of them. Yet this partial compliance demonstrates that each principle is achievable.
Prosecutors can and should fix the system, but unless statutes have teeth, they won’t. Currently, even prosecutors with exemplary rules can repeal their own policies on a whim or simply deviate from them at will. Therefore, building on the best parts of recent state laws in Iowa, Georgia, Nebraska, and Tennessee, we have drafted model legislation to codify the ten reform principles.
It’s ironic that the Brady decision, designed to uphold the due-process rights of the accused and guarantee a fair trial, has been used to deny cops the same rights it grants to criminals. It’s time to fix that.