The Hennepin County Attorney’s Office is flooding courts with a motion for private police data

As they prepared for a trial starting this week, the Hennepin County Attorney’s Office filed a motion asking the court to order the Minnesota State Patrol to release any public or private misconduct records against the seven state troopers involved in the case.

The troopers weren’t going on trial. They had arrested a man who allegedly fled a traffic stop before a State Patrol helicopter traced him to an apartment where he was found hiding under a bed with a gun and drugs nearby.

The motion asking for misconduct records, known as a “Brady-Giglio review,” represents a new tactic for how the Attorney’s Office is approaching the legal obligation for gathering and sharing evidence of police misconduct under Hennepin County Attorney Mary Moriarty. In the past eight months, the office has filed that same motion nearly 600 times.

There is nothing new legally about the need to gather and share Brady-Giglio information. The legal requirement stems from two U.S. Supreme Court decisions in 1963 and 1972 regarding due process. In practical terms, prosecutors need to disclose to the defense any information about a case that would benefit the person charged with a crime or any question about the credibility of a potential witness.

In the past, prosecutors and law enforcement typically worked together to gather pertinent data related to police misconduct or questions about witness credibility. Then they’d share it with the defense ahead of trial. But, if a police department didn’t disclose pieces of disciplinary information or a prosecutor didn’t push to obtain it, a case could be overturned on appeal.

Kevin Burke spent 10 years as chief judge of Hennepin County District Court, before retiring in 2020. He said Brady-Giglio has been around for decades, nearly every practicing lawyer in the United States grew up with it and there have been “egregious examples” of it not being complied with ever since.

“Some police departments have not been as forthright in providing material,” Burke said. “I think that if you’re a prosecutor, putting this outside of Hennepin, just a prosecutor anyplace, if you don’t comply ... it’s a post-conviction proceeding waiting to happen.”

Moriarty told the Star Tribune in January that her office was taking a more proactive approach in gathering Brady-Giglio information to follow those Supreme Court decisions. That announcement kept with her two core campaign promises: that she would hold police accountable and her office would be more transparent about how they operate.

The Hennepin County Attorney’s Office declined to comment for this story, but provided data on its use of the motion. When asked if it was filing court orders for Brady-Giglio data, the Ramsey County Attorney’s Office provided a link to its internal policy, which says its prosecutors are not limited in any way in trying to gather that information. The Anoka County and Dakota County attorney’s offices said they are not filing motions in a similar manner to Hennepin County. The Hennepin County Public Defender’s Office didn’t respond to a request for comment.

Jeff Potts, the executive director of the Minnesota Chief of Police Association, said Moriarty’s positioning stands in contrast with other counties in the state and how law enforcement worked with Hennepin County in the past.

“I would say that it’s probably indicative of the relationship that she is creating with the police chiefs,” Potts said. “Most other county attorneys are doing this in a way that is probably equally effective. However, their style is more cooperative and collaborative. This county attorney has chosen to use court orders to obtain information.”

The Hennepin County Attorney’s Office wouldn’t discuss its process around Brady-Giglio on the record. But its memorandum arguing for the motion, written by Assistant Hennepin County Attorney Siara Melius, explains that obtaining private disciplinary data against law enforcement is the office’s “legal obligation and authority.”

Melius was hired for her expertise on Brady-Giglio compliance, and her motion zeroes in on what information is considered protected under the Minnesota Government Data Practices Act. She argues that several examples of private law enforcement discipline, including officer misconduct cases that are still being processed or when a police chief rules that an officer violated policy but didn’t impose discipline, could be pertinent to a case. That means the Attorney’s Office has a legal obligation to gather and share it.

Melius also points to a Minnesota Court of Appeals decision from 1985 when the Minnesota Department of Human Rights issued a subpoena to investigate St. Paul over a claim of discriminatory hiring for a firefighter position. St. Paul twice refused to comply with the subpoena. The Court of Appeals ruled the Department of Human Rights had the authority to review the data in order to identify if discrimination had taken place.

While it enforces criminal laws, the Hennepin County Attorney’s Office positions itself as no different than the Department of Human Rights, which enforces civil rights laws.

The Attorney’s Office also points to a Minnesota legal statute which says government agencies in Minnesota should have shared access to classified data when it is required by federal law. The motion notes that even if all of these state laws went against Brady-Giglio it wouldn’t matter because the U.S. Supreme Court rulings override any state law protecting privacy. The motion says any private data the office obtains will remain protected with confidential information not pertinent to the case redacted and not made publicly available.

In the past, the Hennepin County Attorney’s Office has fought against defendants seeking this same private police data, and Melius notes that discrepancy. She argues the defense request is individual and not legally the same as the Attorney’s Office making the same request. “Without any legal bases, the defendants were conducting a fishing expedition,” Melius writes. In those cases the data went to a judge for a review before being given to the defendant.

That wrinkle is perhaps most telling for why the use of these motions is considered a new prosecutorial tactic in public accountability of police misconduct. The Hennepin County Attorney’s Office is asking to perform investigative work that it has argued in the past the defense is not legally allowed to do.

Whether or not the motion is granted is left to individual judges in the Fourth District to determine.

Hennepin County Chief Judge Kerry W. Meyer said in a statement that, “Each case with a motion is reviewed on the merits. The judge assesses whether there is disclosable information relevant in the case. The orders speak for themselves about the process used in the cases.”

The motion for a Brady-Giglio review commonly asks the court to order a law enforcement agency — for example, the Minnesota State Patrol or Minneapolis Police Department Internal Affairs — to share disciplinary information against specific officers.

If the judge grants the motion, the Hennepin County Attorney’s Office reviews and catalogues the data and gives any information they view as relevant to the judge overseeing the case. The judge then performs what is known as an “in camera” review of the information to determine if it should be shared with the defense.

In the case of the state troopers, Judge Tamara Garcia denied the motion “for lack of a plausible showing such files would contain material evidence.” She cites the Minnesota Supreme Court opinion in State v. Hummel which stated, “having the trial court review confidential material is not a right. It is a discovery option, but only after certain prerequisites are satisfied.” In other cases, judges have approved the motion and ordered the law enforcement agencies to produce specific disciplinary files for review.

The sheer volume of motions the Hennepin County Attorney’s Office has filed indicates this is becoming standard operating procedure for a department that works with more than 35 law enforcement agencies to prosecute criminals. The reason for that could be related to gray areas in how different agencies categorize public vs. private police data.

The Minneapolis Police Department has a publicly available “police discipline decision dashboard” which dates back more than a decade and tracks various violations and types of discipline. But, as the Star Tribune reported earlier this year, MPD has used coaching — a form of one-on-one mentoring — as their most common approach to dealing with police complaints in the past decade. Coaching documents are not publicly available.

The ability of law enforcement agencies to make disciplinary actions private matters because they can argue that an employee could sue them if they share private data. These legal motions are one way the Attorney’s Office can work around that concern.

When the county filed a Brady-Giglio motion in a murder trial earlier this year, Judge Juan Hoyos agreed to the motion.

He ordered that Minneapolis Police Department Internal Affairs and the Office of Police Conduct Review provide the HCAO with “all not public data” relating to three officers who were potential witnesses in the trial. The HCAO would not be given any records against the officers that were designated either “Dismissed — No Basis” or “Exonerated.” Any other disciplinary files the HCAO would review, redact accordingly and provide any information they believe was needed to satisfy their Brady-Giglio obligation to Judge Hoyos. He would then decide if any of it needed to be shared with the defendant. The private data was held under a protective order by the court and the officers had to be alerted that their file was being provided to the state.

The officers and the government agencies were given five business days to object.

Staff writers Andy Mannix and Liz Sawyer contributed to this report.