Tarnished Badge is a three-part series that looks at credibility questions raised by Vermont prosecutors about law enforcement officials. Part 1 explains why prosecutors file so-called “Brady letters” and other documents when a law enforcement officer’s credibility is questioned. Part 2 examines why some Vermont prosecutors have filed more cases against officers than others. Part 3 looks at what happened to the officers named and where some of them are now.
It was a traffic stop that didn’t result in any criminal charges.
Instead, a prosecutor took the rare step of no longer accepting any cases from the officer involved — an often fatal blow to a law enforcement career.
Addison County State’s Attorney Dennis Wygmans explained his decision in a letter in February 2019 about Timothy Maxfield, who worked for the county sheriff’s department. Wygmans told Maxfield’s boss he decided he would no longer prosecute the deputy’s cases after reviewing video of Maxfield’s traffic stop, an encounter the county prosecutor said turned unnecessarily ugly.
“A review of the video reveals a clearly racially motivated escalation of a roadside stop for a mere traffic violation, wherein he falsely identified the occupants of the motor vehicle as gang members based upon race,” Wygmans wrote to Addison County Sheriff Peter Newton.
Wygmans said it wasn’t the first problem he’d seen with Maxfield.
“We already had concerns regarding Deputy Maxfield based upon recent inaccuracies in an affidavit of probable cause,” Wygmans said, “wherein he misrepresented certain facts in an effort to protect the identity of an informant.”
Maxfield, reached for comment, said there was little he could say about the matter, and referred questions to his attorney, Caroline Earle of Montpelier.
“We thought it was without support,” Earle said of the prosecutor’s letter, adding that she did not believe that her client’s performance was properly reviewed and overlooked his career as a law enforcement officer that had previously drawn praise.
Earle said an eventual lawsuit over Maxfield’s termination and “collaborative” resolution included a $21,000 payment to her client. Maxfield’s termination was also changed to a resignation, she said.
Sheriff Newton said all he could say was that Maxfield no longer worked for the department.
The prosecutor wrote what is often referred to as a “Brady” or “Giglio” letter, named after national court cases. The letters are filed when an officer’s credibility is called into question. They can be used by a defense attorney to question the credibility of an officer, and often prosecutors will simply not pursue any more cases from an officer who received a “Brady letter.” It’s the law enforcement equivalent of a scarlet letter.
They can also lead to tension and bad blood due to the high stakes and effects on reputations. Questions of conflicts of interest are raised as the prosecutors who decide whether to write the letters often have close ties to the law enforcement community within their jurisdictions.
At a time when police conduct is under scrutiny, in Vermont and nationwide, prosecutors’ documents and Brady letters provide insights into dishonesty issues raised about some Vermont law enforcement officials.
Recent public record requests by VTDigger show prosecutors have named roughly 30 officers across Vermont in such documents over the past five years.
The records also reveal some surprises:
• No one is tracking these credibility issues across Vermont’s 14 counties.
• There are no requirements for maintaining Brady letters as years go by.
• When an elected county prosecutor leaves office, there is no system for relaying those letters to the next prosecutor.
• Vermont has no centralized database where all the lists and letters are stored. That prompts questions about what information may follow an officer who’s moving from one department to another.
• The degree to which prosecutors write such letters and include officers’ names on lists is inconsistent. The numbers are higher in Rutland, Chittenden and Washington counties, while others, such as Franklin County, report no such letters or any officers appearing on a list.
Some have termed the letters “Do not call lists” — that is, officers can’t be trusted if they’re called to testify in court. That’s because defense attorneys can tear them apart on cross-examination, zeroing in on past credibility and dishonesty issues.
The letter can even end a law enforcement career, said Robert Sand, longtime Windsor County attorney who is now a Vermont Law School professor.
“Once a prosecutor takes the rather extraordinary and ethically appropriate step of writing a blanket letter about a particular witness, about a particular officer,” Sand said, “that does not bode well for that officer’s further work in the field.”
For some officers, it’s a career death sentence.
“It is effectively that prosecutor saying that my office will not use this officer,” Sand said.
The letters vary
The documents obtained by VTDigger range from short one-paragraph statements to longer letters that include attachments with other supporting documents.
The entries often tell the story from the prosecutor’s perspective, and don’t get into the back-and-forth of defenses. They can be for substantial matters or what might seem less egregious offenses.
VTDigger has already reported on two separate cases involving Rutland detectives who were called out by the county prosecutor for having credibility issues.
In one case, an attempted murder charge was dropped over concerns about the accuracy of statements in a sworn affidavit by Detective Emilio Rosario.
In the other, Detective Jimmy Plakas’ account of a holding cell takedown by another officer had misstated a key detail. Plakas wrote in a sworn statement that the suspect thrown to the ground had only one hand cuffed at the time, while video footage showed both hands cuffed. That discrepancy raised the issue of just how much the suspect could have been resisting when he was thrown to the ground.
There’s the Windsor County letter naming then-Royalton police officer John Breault as giving drugs from the police station’s evidence vault to a woman with whom he was having a relationship. Breault later pleaded guilty to federal crimes in that case.
In a case reported in the Caledonian Record in 2018, then-Caledonia County State’s Attorney Lisa Warren alleged St. Johnsbury police officer Sophie Patenaude had been untruthful about missing a meeting about trial preparation. Warren claimed that Patenaude received notice of the meeting. Patenaude disputed that. Believing Patenaude wasn’t telling the truth, Warren issued the letter.
The documents include an entry for a Rutland City officer, Damon Angelo, who allegedly “joked about pulling a (racial epithet) out of a car even without probable cause.” Angelo resigned soon after.
Another document involved the case of Rutland City Police Cpl. Damon Nguyen, who took a lie-detector test when he applied for another law enforcement job. The records state Nguyen made “concerning comments” during the lie-detector test that led to a criminal investigation of him involving a possible sex assault. No other information was available in the records about the comments.
Prosecutors from outside Rutland County later declined to bring a criminal case against Nguyen because of concerns about “proof and statute of limitations concerns,” according to county prosecutor Rose Kennedy. But there were still indications that he lied during the polygraph exam, documents stated.
According to the last line of his entry on Kennedy’s Giglio listing for the corporal, “Nguyen is no longer a police officer with Rutland City Police or anywhere, to my knowledge.”
Police academy cases
Two other documents involve new recruits at the Vermont Police Academy allegedly caught cheating. Their cases demonstrate a “Brady letter’’ doesn’t always result in an officer losing their job.
In one case, the new officer was later cleared by a polygraph test. In the other, the academy student was accused of plagiarism, but was eventually able to work as an officer after completing an ethics course and other corrective action. Both still work in law enforcement, though the letters could result in them having to answer to the allegations when called to the stand to testify on other cases they investigated.
There is also a letter about Dan Kennedy, then a state trooper assigned to the Middlesex barracks, who was allegedly “untruthful” during an internal investigation about whether he transported an acquaintance in his cruiser while on duty. He later resigned from the state police.
The existence of these lists and letters is not secret, though few know about them.
In response to requests, some prosecutors had to scramble to get them together as if they were stashed away, yellowing in the back of a filing cabinet or kept deep within a hard drive on a no-longer-used office computer.
Other prosecutors pushed out PDFs within minutes.
The Vermont Department of State’s Attorneys and Sheriffs provided several of the letters that it had collected from prosecutors around the state.
Different states have various methods for collecting and maintaining information about officers with truthfulness and credibility issues.
For example, in neighboring New Hampshire, the information is kept in one place, referred to as “Laurie’s List.” According to a report by New Hampshire Public Radio, a 1995 murder conviction against Carl Laurie was overturned after it was revealed that the prosecution didn’t tell the defense about the history of misconduct by an officer involved in Laurie’s arrest.
So far, the names of officers on that list are kept confidential, though several groups, including news organizations and the New Hampshire chapter of the American Civil Liberties Union, are challenging that in a court case. Defending the secrecy are the New Hampshire Attorney General’s Office and police unions, which contend the list amounts to personnel information that’s exempt from public disclosure.
Supreme Court rulings
U.S. Supreme Court decisions are at the heart of these lists and letters: Brady v. Maryland, from 1963, and Giglio v. United States, from 1972.
Though they are often called Brady letters and lists, the later Giglio decision zeros in more on the issues of the credibility and character of a government witness.
The Brady decision requires the prosecution to turn over to the defense any “exculpatory” evidence, material that could help show a person is not guilty of a crime or could lead to a lesser sentence.
According to a report by the Marshall Project, the case centered on John Brady, who was charged in a botched robbery that led to the killing of a man. Brady and a co-defendant blamed each other for the slaying. They were convicted. At trial, Brady admitted his role in the robbery, but denied that he killed the man. He received the death penalty.
It was later learned that the prosecution did not disclose that Brady’s co-defendant had admitted that he was the killer. As a result, Brady gained parole in 1974, according to the Marshall Project report, became a trucker, then a fisherman, and was never known to have committed another crime.
Justice William O. Douglas authored the opinion.
“Society wins not only when the guilty are convicted but when criminal trials are fair,” Douglas wrote. “… An inscription on the walls of the Department of Justice states the proposition candidly … ‘The United States wins its point whenever justice is done its citizens in the courts.’”
The later Giglio ruling expanded on Brady, holding that the prosecution must disclose to the defense information that could impeach the character of a government witness, including cases in which police are prosecution witnesses.
“Justice requires you not to hide the ball,” said Sand, the Vermont Law School professor and former prosecutor. “Therefore, you have to turn over information even if it undermines your ability to obtain a conviction.”
Lying vs. mistakes
John Campbell, executive director of the Vermont Department of State’s Attorney and Sheriffs, said deciding what is “Giglio” impeachment material and needs to be turned over to the defense can be easy to decide when an officer is shown to be lying.
However, he said, making that determination is less clear in situations involving “mistakes” made by officers where there does not appear to be any intent to deceive.
And, Campbell said, determining what information relates to a person’s credibility and honesty can also be tricky.
For example, he said, what if an officer is having an affair?
“Does that go to that officer’s credibility?” Campbell asked. “Should you then disclose that to the defense? That’s a tough one.”
Those decisions are more subjective, and it’s left to a prosecutor’s discretion about whether to alert defense counsel, Campbell said.
“I can say, at least from all the cases I’m aware of in Vermont, that the state’s attorney absolutely did a full investigation or looked into the issue, or information and evidence, before making a determination to issue a Giglio letter,” he said. “We don’t do it willy-nilly.”
Vermont Defender General Matthew Valerio said the information in such letters is important to defense attorneys. If an officer who got a Giglio letter is the main witness in a criminal case, he said, a defense attorney will likely move to dismiss that case.
“It effectively makes them unable to be called as witnesses in a case,” Valerio said.
Everybody makes mistakes, he said, but when a mistake is particularly egregious or becomes a pattern for a law enforcement officer, then a letter is warranted.
“You have to get to the point where you believe that the officer is inherently unreliable,” Valerio said, “either for lack of training, lack of ability to observe, lack of attention to detail, or just plain misrepresentation.”
“In practice, it is a really subjective determination by the prosecutor that the evidence that the officer is producing is not trustworthy.”
Valerio also said that not all misconduct goes to the issue of credibility. For example, an officer who’s charged with drunken driving or careless driving wouldn’t necessarily get a letter.
“I don’t think a DUI in and of itself bears on your credibility. It might bear on your judgment, but anybody could get a DUI,” he said. “It doesn’t make you a liar; it just means you drank too much and you drove.”