There’s a lot that we don’t know about the Lewis list, a document naming police officers in Washington DC who are under investigation or have been found liable for misconduct. The names on the list are secret. It’s not known precisely which offenses land an officer on the list. One thing is absolutely clear: Under federal law, if a police officer who’s on the list testifies in a criminal case, information about their offenses has to be turned over to defense attorneys.
Documents uncovered in a FOIA lawsuit, though, raise serious concerns about whether that information is actually being released. One document from the U.S. Attorney’s Office for DC lists a number of “gray areas.” Information about bad cops or accused bad cops, government attorneys seem to suggest, can stay secret from defendants in a criminal case if it falls into one of these areas. Some of them are shocking: domestic violence findings may not need to be disclosed, the document seems to suggest. (In this context, that means an allegation of domestic violence that has been substantiated in an internal investigation. A criminal conviction for anything, including domestic violence, seems to be subject to disclosure.) The same is true of a police officer being found liable for harassment, “losing” an inmate in their custody, and even a hypothetical case where an officer was found liable for unjustified use of force and then formally reprimanded for firing a gun at a moving vehicle.
These new concerns about Lewis list disclosures have been raised by Property of the People, a government transparency group that uses Freedom of Information Act requests to shed light on the workings of the government.
“We’re committed to liberating government documents so people can know what their government is up to,” said Ryan Shapiro, co-founder and executive director of Property of the People.
The group’s argument with the U.S. Attorney’s office in DC over the Lewis list has been going on so long that it actually predates the existence of Property of the People itself. In 2016, Shapiro, then a PhD candidate at MIT and an expert on national security and the policing of dissent, filed a FOIA request seeking to learn more about the names on the Lewis list. When much of what he requested wasn’t released, Shapiro filed a lawsuit. He went on to become part of Property of the People, and the suit has dragged on, and on, and on. Most recently, Property of the People won a minor but significant victory when the court ruled that the government must prepare what’s known as a Vaughn index—a list of documents being withheld, a justification for why each isn’t being released.
“To fight our FOIA lawsuit, the DOJ is shrouding in secrecy the DOJ’s shrouding in secrecy of the DOJ’s routine efforts to shroud bad cops’ misdeeds in secrecy,” Ryan Shapiro said. (The U.S. Attorney's office in DC did not respond to a request for comment from Vice News by publication time.)
The existence of the Lewis list, and other lists like it around the country, can be credited to a 1963 Supreme Court decision, Brady vs. Maryland, which ruled that if the government has exculpatory evidence in a criminal case, it has to be turned over to defense attorneys. That includes information about whether a witness for the prosecution might not be credible or trustworthy. Since police officers frequently testify in court, that’s led to the creation of what are more often called Brady lists or “do not call” lists, which keep track of officers who have criminal records, are under internal investigation by their own departments, or have been found liable for professional misconduct.
But a sweeping USA Today investigation last year found that many police departments nationwide aren’t complying with their legal requirement to maintain a Brady list, and that where they are being kept, the lists are often incomplete. The investigation also found that many places refuse to make their Brady Lists public, making it impossible for anyone to know how closely police departments are complying with the law. It’s a longstanding and extremely widespread issue: WNYC reported in 2015 that “a police officer's disciplinary history is effectively confidential in almost half of US states.”
What’s not in question is that Brady or Lewis list information is supposed to be turned over to criminal defendants. Being able to point to anything that could impeach the credibility of a witness is part of their basic right to defend themselves. (Not doing so is certainly a violation: In one particularly high profile case, prosecutors in DC Superior Court were sanctioned for withholding potentially exculpatory evidence in the case against protesters who flooded the streets on Inauguration Day.)
“Of course the public needs access to the identities of cops so bad that even the DoJ knows they can’t be allowed to testify in court. Perhaps even more important, however, is access to information about how the Lewis list operates,” Shapiro told VICE News. “Crucially, we need to know what information gets put on the list, and what information from the list actually makes its way to defendants. "
The document uncovered by Property of the People’s lawsuit, though, suggests that the U.S. Attorney’s Office in DC might be taking a somewhat selective approach to what they turn over to defense attorneys.
"The document appears to be guidance from the US Attorney's Office for DC, which oversees the Lewis list," Shapiro said, "to trial prosecutors about when to disclose information from the list to defendants. Disturbingly, much of the time, the guidance appears to be, ‘Don’t.’”
The document is a memorandum written by two top U.S. Attorneys—Richard Tischner, chief of the Superior Court Division, and Jonathan M. Malis, chief of the Criminal Division. In it, they lay out what information is “potentially subject to disclosure” and what might not have to be disclosed to the defense.
According to the memo, information “potentially subject to disclosure” includes an officer’s criminal convictions and any pending cases or investigations against them.
This makes sense. What’s surprising is what Tischner and Malis list as “gray areas”—information that may not have to be disclosed, depending on the case.
Things on the list include findings of unjustified use of force, “losing a prisoner/notebook” (which are given the same weight), and even an officer firing a pistol at a moving vehicle, if the officer was reprimanded but the finding “doesn’t give rise to bias/veracity or relate to the accuracy of his testimony in the case.” (Tischner and Malis suggest something like that might be disclosed privately in a judge’s chambers, not in open court.)
Also surprising is what Tischner and Malis list as “presumptively not disclosable,” meaning things that wouldn’t necessarily be turned over unless they were specifically relevant to the case in question or asked for by the defense. These include “harassment,” “sending inappropriate emails,” and “domestic violence findings,” though that has a parenthetical question mark next to it. Also listed as presumptively not disclosable are “sustained findings that do not relate to an officer’s testimony”—a seemingly rather broad classification.
Shapiro says that the document underscores Property of the People’s main point: That the Lewis list information is urgent and should be disclosed.
Jeffrey Light was an attorney for Shapiro when he first filed the lawsuit, and is now one for Property of the People. He was surprised to see some of the supposed “gray areas” the memo lists. “It seems almost axiomatic to me that gray area [information] needs to go to the defense,” he said. “Or if not to the defense, at least to the judge to make a decision. That was very surprising.”
Light also says that disclosure of the Lewis list might actually help people convicted of crimes determine if there was any misconduct in their case, or anything that should have been disclosed and wasn’t.
“There’s an extremely strong public interest in the information,” he told VICE News. To the extent that “embarrassment might result” from the documents being released, “the court would be able to order the names to be redacted so we would till be able to learn about the types of corruption, dishonesty and wrongful conduct from the police and how prosecutors handle that kind of information without embarrassing specific officers. Obviously that is less helpful than having the names. Having the names allows people who were convicted to go back and reexamine the basis for their conviction and determine whether there was any misconduct by by the government in failing to release Brady information in their specific case.” It’s important, he said, to be able to check “and to be able to compare the information from the Brady list with the names to what the government claims in individual cases.”
In the case of DC and the Lewis list, the Department of Justice has argued in the case filed by Property of the People that disclosing misconduct records would be embarrassing for police officers on the list, and might improperly tar their reputations. Richard Contee, the assistant chief of the Investigative Services Bureau at the Metropolitan Police Department, wrote in a declaration that officers on the list “would be subject to embarrassment and humiliation from their outside employers if the employers became aware that an officer’s credibility or reputation had been called into question by a law enforcement agency.”
In an affidavit, Richard Tischner, the chief of the Superior Court Division for the U.S. Attorney’s office in DC who co-wrote the memo listed above, argued that releasing Lewis list information could be unfair, given that sometimes it involves a preliminary investigation, not a sustained finding of misconduct. Tischner is also the chair of the Lewis Committee, a body that’s part of the U.S. Attorney’s Office in DC, which meets periodically to review and assess information it has received about police officers who might testify on behalf of the prosecution.
“The Lewis list is maintained with the utmost confidentiality in order to protect the subjects of the list,” Tischner wrote in his declaration, “as well as to ensure that information needed effectively to ensure the completeness and accuracy of the list continues to be received by the Lewis Committee.”
Tischner added there is “particular unfairness” in disclosing any “non-final” recommendations the Lewis Committee might have made regarding a particular officer. “The recommendation may result in a conclusion that the officer has done nothing wrong, yet the officer will be tarred as having been determined by the Lewis Committee as having issues that people will likely assume cast doubt on his or her credibility. Even disclosing a summary of the allegations or the underlying information on file about an officer runs a significant risk that an officer will be linked to the circumstances of the allegations by others who know of the situation depicted in the Lewis database, then the officer's coworkers or associates could link the officer to the events and would know that the USAO-DC and its Lewis Committee had determined that some action was deemed warranted based on allegations about the officer's veracity.”
Light, Property of the People’s attorney, argues that the release of Lewis list information isn’t meant as a way to embarrass individual officers or as a “pro-cop or anti-cop thing,” but as a way to make sure criminal prosecutions are scrupulously fair.
“We should all want defendants to get a fair trial,” Light said. “We should all want to know how the disciplinary system works. And we should all want to know who needs to be held accountable for misconduct.”
Property of the People has had the memo since 2017, but only recently decided to make it public, to shed more light on their case at a time when Americans are particularly focused on how the justice system works—or doesn’t.
“I’ll note the DOJ and many police departments don’t seem to care about causing embarrassment or other hardship for the many arrested people whose names and often mugshots they publicize, despite these people not yet having been tried for, much less convicted of any crime,” Shapiro said. “Yet, in order to avoid ‘embarrassment’ for the cops, the U.S. Attorney’s Office insists on keeping secret even the most basic information about police officers, ostensibly public servants, who have engaged in behavior so outrageous that even the DOJ knows these officers cannot credibly testify before a court.”
In the end, he added, “Racial justice, due process, and people’s ability to walk down the street without fearing for their lives trumps bad cops’ embarrassment in virtually every calculus that matters.”
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