SUNDAY EDITION | LMPD officers under investigation can get fresh start with resignation
Defense attorneys say LMPD should finish investigations and that information should be turned over in court cases.
Friday, May 15th 2015, 4:57 pm EDT by
Monday, May 18th 2015, 9:28 am EDT
LOUISVILLE, Ky., (WDRB) -- In December 2011, the Louisville Metro Police Department began investigating one of its own – Lt. Lynn Hunt – for falsifying her time sheet, lying about when she was at work and other allegations.
But the investigation went away when Hunt retired from the force nearly a year later.
Hunt was then hired as a detective by the Bullitt County Sheriff's Department – where she recently led the high-profile Stanley Dishon murder investigation.
Neither Dishon's lawyer – nor even the Bullitt County Sherriff's Office – were told of Hunt's potential credibility issue.
“If we'd known, I for one would not have hired her,” said Bullitt County Chief Deputy John Cottrell, who said LMPD told Bullitt County nothing about the past investigation. “We found out through the rumor mill.”
The Hunt case illustrates a potential loophole that other Louisville officers have used to escape investigations into their own misconduct: retire or resign before any discipline comes down, and get a job with a different department.
Such moves raise thorny legal issues. For example, considering the officers still might be called to testify in criminal cases after leaving the department, should police finish investigating and determine whether any wrongdoing occurred? Should defense attorneys have access to those unfinished investigations when the officers testify against their clients?
“Just because they say there's no finding doesn't mean the allegations never happened,” said Louisville defense attorney Julie Kaelin. “An independent investigation could lead to a determination that the conduct did occur, and if it involves the officer's truthfulness, then their testimony can be and should be scrutinized.”
Attorney Jennifer Wittmeyer, who represented Dishon, said prosecutors should have turned over the LMPD investigation into Hunt under the “Brady law,” a 1963 U.S. Supreme Court ruling that says defendants must be told about potentially exculpatory evidence in criminal cases, including questions about police witness credibility.
WDRB looked through the cases of more than three dozen LMPD officers who retired or resigned in the last five years while under internal investigation. At least 24 officers – including Hunt – are not included on LMPD's current “Brady list,” a directory which prosecutors can check to see if officers who might testify in a case have potential credibility issues.
Louisville police say they were not required to notify prosecutors or law enforcement in Bullitt County about the investigation once Hunt retired.
Maj. Donny Burbrink, head of LMPD's Public Integrity Unit and Professional Standards Unit, said if an officer leaves the department before an investigation has been completed, they cannot make a determination that a policy has been violated.
“If we haven't gotten a chance to investigate the allegations totally, then we won't know if they are credible,” he said.
If an officer leaves LMPD for another law enforcement agency, Burbrink said they are not required to tell other departments about the investigations, as long as they were not criminal in nature.
“We're restricted just like everyone else with (human resources) type things in what we can and can't tell in regards to that,” he said.
But Kaelin, the Louisville defense attorney, said LMPD has a conflict of interest when investigating its own – and the police might be happy to have a reason to drop a case that might expose credibility problems.
“When a jury is relying on the word of a police officer, and there is evidence that they've lied in the past, the fact that their own agency didn't complete an investigation doesn't mean it didn't happen,” she said.
Burbrink acknowledged that well-timed resignations or retirements have allowed some officers to go on to other departments with clean records.
For example, Officer Bradford Mitchell resigned from LMPD in 2012 under threat of being fired for having lied to internal investigators about working an off-duty job, among other things.
But Mitchell resigned the day before his termination hearing, and the investigation by LMPD was “closed by exception,” according to records obtained by WDRB under the Kentucky Open Records Act.
Mitchell now works as an officer for the small city of West Buechel, where he has been involved in dozens of arrests the past few years, and defense attorneys involved in his cases say they haven't heard anything about his past issues.
Some defense lawyers say they should be notified about officers who left LMPD while under investigation -- especially when those officers are still testifying in ongoing cases.
“The courts have ruled over the years that exculpatory evidence includes evidence that runs to the credibility of a witness, whether there was a conclusion or not,” said attorney Jay Lambert of the Louisville Public Defender's office.
The issue came up in court late last year when defense attorneys asked a judge to order the Jefferson Commonwealth's Attorney's office to turn over an internal investigation into “allegations of misconduct” by retired Lt. Kit Steimle.
Steimle, formerly the head of a department's unit targeting Louisville's most dangerous criminals, retired last summer and the investigation against him was closed. But he still has active cases that require him to testify in court.
Last November, attorney Sean Pharr of the Louisville Public Defender's office asked a judge to order prosecutors to turn over any documents in the unfinished investigation of Steimle.
But the Commonwealth's Attorney's office told Jefferson Circuit Court Judge Susan Schultz Gibson they didn't have any records on Steimle.
The criminal case was eventually settled before Pharr pushed the issue of whether prosecutors would have to turn over any investigative documents regarding Steimle. Steimle declined to comment for this article.
Jefferson Commonwealth's Attorney Tom Wine, who prompted police to start keeping the Brady list in 2013, said it's only recently that LMPD has begun keeping track of officers who might have credibility issues. His office continues working with police to improve the system, Wine said.
Wine also doesn't agree that prosecutors are required to turn over unfinished investigations into allegations against an officer – considering that the truth of those allegations remains an open question.
“If someone is accused of untruthfulness … someone calls up and accuses a police officer, does that officer's name go on the list?” Wine asked. “Where do you draw the line?”
Wine said, “We're doing what we are supposed to do,” adding that his prosecutors turn over any information they learn about. “We are going to follow the rules and err on the side of caution.”
As for Steimle, Wine said the office will handle his cases as they come up and decide if and when prosecutors should turn over whatever documents are available from his misconduct investigation.
“If we find out there is information there that does affect his credibility, we are required to turn it over,” he said.
Burbrink said the investigation into Steimle did not involve anything that would have put Steimle on the Brady list – in other words, nothing that would hurt his credibility.
“There's nothing there” for defense attorneys, he said.
But in reviewing the list of officers who resigned or retired while under investigation, WDRB found some officers who police admit should have been on the Brady list.
Burbrink said it was a mistake that Mitchell had not been put on the list. The allegations against him were sustained, but he resigned before the disciplinary process was complete. Still, there was enough evidence to turn over, Burbrink said.
Another officer, Keith Walz, was also mistakenly left off the Brady list, Burbrink said.
Walz was going to be fired in 2014 for, the department concluded, lying during an investigation about working hours at an off-duty job while he was supposed to be working for LMPD. Instead he resigned.
Wine said his office would talk to LMPD about the former officers not being on the Brady list, but said for the most part, the process has been working well and other prosecutors across the country have called his office for tips.
But Lambert said it is a “huge problem” that officers were left off the list, and, depending on the circumstances of the cases, defendants may be able to get their convictions set aside.
“It's evident there should be some sort of mechanism for greater interdepartmental communication between LMPD, West Buechel, (Kentucky State Police), St. Matthews or whatever,” Lambert said. “That's an issue law enforcement needs to look into.”
Burbrink said law enforcement agencies that hire LMPD officers who have left while under investigation would have to do their own due diligence in deciding to hire the officer.
But when a handful of officers left amid separate investigations a few years ago and all joined the West Buechel Police Department, LMPD sent a letter alerting West Buechel that the officers had issues that could be used against them in court, Burbrink said.
In an interview, West Buechel Police Chief Gary Sharp said that under former chief Jeff Manning, the department had four officers, including Manning and Mitchell, who had come from LMPD after having disciplinary issues. A few years ago, Sharp said, Manning brought up the Brady issue and said he had put himself and the other three officers on the list and sent it to local prosecutors.
But neither the commonwealth's attorney's office nor the county attorney's office has an active Brady list from West Buechel.
“Do I have proof (the list was sent)?” Sharp asked. “No If (Manning) didn't send it, I'm guessing the reason he didn't send it is because his butt was going to be on it.”
As for Hunt in Bullitt County, Chief Deputy Cottrell said the information into her investigations is not turned over to prosecutors because there was no conclusion. Hunt was also being investigated for an alleged violation of policies and procedures regarding a phone conversation with a co-worker.
“My understanding of the Brady law is if the officer is found guilty, that information has to be turned over,” he said. “But if she resigns or quits before investigation is over, there is not a finding. That case is closed.”
Hunt, who was recently suspended from the Bullitt County Sheriff's department for unrelated reasons, did not return an e-mail seeking comment.
The Bullitt County Sheriff's Department also hired Det. Matt Corder, who was fired from LMPD a decade ago for abusing his authority when he handcuffed a man while the detective's vehicle was being repossessed. Corder is also now suspended, though it is unclear why.
In the last few years, Cottrell said the sheriff's department has made its employment background checks more thorough.
“I think it's just good for the department to get as much info as you can,” he said.
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