Left in the dark: Why prosecutors don't always know about dishonest cops

And how it can have 'near disastrous consequences'

Over the last six months, the WCPO I-team has collected records from 40 different police departments and reviewed thousands of disciplinary cases involving officers. Our motives are simple: We want to make sure the people who protect us and enforce our laws are worthy of the high level of trust the public gives them. Read more about this project and why we are doing it here.

Editor's note: This article has been updated. It originally misstated the contents of Butler County Prosecutor Michael Gmoser's letter to law enforcement agencies.

HAMILTON, Ohio -- Chief Craig Bucheit considered it an open-and-shut case of police discipline.

One of his officers, Ray Nichting, didn't tell the truth about a high-speed chase. In fact, an internal investigation found Nighting provided false information several times, only telling the truth about two weeks later -- after he learned Lt. Michael Waldreck, a shift commander, knew about the pursuit. Nichting's own dash camera video proved he had lied.

Bucheit told the I-Team he didn't think the public had much interest and that we shouldn’t focus on Nichting's dishonesty.

"This officer was wrong," Bucheit said. "He admitted he was wrong. He was disciplined appropriately and accordingly, and we moved on."

But Bucheit never told Butler County Prosecutor Michael Gmoser about Nichting’s dishonesty.

If an officer involved in a case has a history of lying or other misconduct that raises questions about his or her credibility, prosecutors are required to disclose that information to the defense team under a decades-old Supreme Court ruling.

When they don't, serious convictions, even death sentences, can be overturned.

Hamilton County Prosecutor Joe Deters and Warren County Prosecutor David Fornshell keep track of those officers. Their offices provided the I-Team with a list of the officer’s names and police agency, often called a “Brady list.”

Gmoser does not have a Brady list. He only learned about Nichting's dishonesty and other cases of untruthful Butler County police officers from us.

 

“I appreciate your investigation,” Gmoser said. “I do understand where you have gone with that. It is one of the reasons why I am willing to expand what I am doing with respect to Brady.”

He told us he plans to do better -- and that he thinks what we uncovered, and his more assertive approach, will make police departments more accountable and trustworthy.

Even with all that, he still sees loopholes that leave prosecutors in the dark.

‘How can we take them at face value?’

The I-Team discovered the problem in Butler County through our monthslong investigation of police discipline. We reviewed thousands of records from 40 police departments serving the Tri-State, focusing on the agencies in seven metro area counties in Ohio and Kentucky. Reporters studied thousands of incidents involving police in large and small law enforcement agencies.

We weren't sure what we would find when we began collecting these records, but our goal was making sure the public was aware of how law enforcement agencies discipline their officers for wrongdoing.

According to a letter Deters sends to police chiefs every few years, they must tell his office about a wide range of misconduct. That includes all:

criminal convictions, pending criminal charges, disciplinary findings of dishonesty or disciplinary findings that necessarily involve dishonesty. Incidents demonstrating bias or improper use of force must also be disclosed.

The issue is so serious Deters recommends police departments consider a strict policy to terminate officers who are untruthful, whether in their reports, testimony or interviews.

That’s because an officer who has lied loses credibility, according to veteran defense attorney Carl Lewis.

“If an officer has a history of being dishonest or violating ethics, how can you take their word on the stand?” Lewis said. “The jury can say ‘If this is what they’ve done, how can we take them at face value?’”

It's not just officers who testify at trial, either: Deters' policy says the disclosure requirement applies to any officer who worked on a case in an investigative capacity.

We identified 37 incidents of dishonesty among law enforcement employees in the region over the past four years. Penalties ranged from counseling, where a supervisor talks with the employee about the behavior, to termination.

An officer could also be on a Brady list for using excessive force. Our review found 72 "use of force" violations among 18 agencies since 2013. Nearly all involved complaints of excessive force -- officers kicking or punching suspects, slamming inmates into floors or walls, or in one case, grabbing an inmate by his genitals.

 

In Middletown, an internal police investigation found Officer Andrew Minic at first denied using force on a suspect in June 2016, even though he later admitted intentionally kicking the man in the head. In a police report, he said he lied because he "supports his children and fears losing his job."

The Middletown Police Department disciplined Minic for violating policies on use of force and departmental reports, but not his lack of truthfulness.

Police Chief Rodney Muterspaw wouldn’t talk with us about the case. But like Bucheit in Hamilton, the Middletown Police Department admitted it never told Gmoser about Minic’s misconduct.

“When the integrity of a police officer fails, then justice fails.” -Prosecutor Michael Gmoser

Prosecutors and police departments have a responsibility to communicate about those disciplinary issues, according to a half-century old case. In Brady v. Maryland, the U.S. Supreme Court ruled that prosecutors are required to disclose information that may hurt their own case because it's in the interest of justice.

That means Gmoser -- and other prosecutors -- must tell the defense if key witnesses, like police officers, have a record of dishonesty or other official misconduct.

Deters has a list of three dozen such officers whose credibility could be called into question at trial. Fornshell’s list has seven, including corrections officers.

Gmoser admits he hasn’t done enough.

He has been prosecutor since 2011. Police chiefs are supposed to tell him about officers with Brady violations; but if they don't, it doesn't absolve his responsibility to tell defense attorneys. And unlike Deters, Gmoser hasn't regularly and proactively asked for the information.

He didn’t think that effort was needed because Butler County, population 376,000, is a “small” place with a community of police officers he believes he knows and trusts.

“In Butler County, I like to say there are no secrets,” he said.

Lewis was bothered, but not surprised, to learn not all dishonest officers are on local Brady lists. He faults departments that fail to disclose potential Brady violations to their local prosecutors.

“To stand behind the shield as a law enforcement office and not provide that information takes down the entire system of justice,” Lewis said.

Deters’ letter has this warning: "Experience in other states has shown that civil lawsuits have often resulted from the failure to provide this information." In other words: Tell the prosecutor's office about Brady violations or a criminal defendant could sue you.

‘Near disastrous consequences’

Even though Deters tells police departments they should consider firing officers for dishonesty, our investigation found that’s rare. Of the 37 cases we uncovered, just seven officers lost their jobs. Six were fired; the seventh resigned.

Here’s what happened in the other cases:

  • One officer was recommended for termination, but it's not clear from the records whether that actually happened.
  • Eighteen officers were suspended.
  • Five received counseling.
  • Three received reprimands.
  • On three of the 37 cases, no disciplinary action was described in the records.
 

Of the 72 cases involving use of force, we were able determine how officers were disciplined in 38 instances:

  • 17 cases resulted in some form of verbal interaction, including reprimands and counseling.
  • Written reprimands were issued to 11 officers.
  • Nine were suspended -- eight of them for four days or less. One Hamilton County Corrections officer was permitted to use accumulated leave time to cover his 15-day suspension.
  • One corrections officer was headed for likely termination, but he resigned first.
  • Six officers were completely exonerated. Many of the officers who were disciplined were cleared of using excessive force, but departmental reviews found fault with their use of language during the incidents or how they followed procedures after.
  • In at least 28 of the 72 incidents, the public records obtained by WCPO are not complete enough to determine how departments evaluated allegations of excessive force.

In Hamilton, the police department gave Nichting a written reprimand for violating its pursuit policy and for being untruthful.

In Middletown, Muterspaw suspended Minic for a day and let him use holiday pay to cover it.

“When the integrity of a police officer fails, then justice fails,” Gmoser said.

That's what happened in Arizona, where a woman spent 23 years on death row for killing her son. She steadfastly maintained she was innocent. It only later came out that a detective in the case -- the one who claimed she confessed -- had a history of lying and other misconduct. Prosecutors never told the defense. Her conviction was tossed out a few years ago, even though questions remain about her involvement in the murder.

After we brought the Brady issue to his attention, Gmoser said he reviewed the cases he’s personally prosecuted. He told the I-Team none of those cases had issues that would have resulted in Brady violations by his office.

He recognizes that’s not enough: He recently sent a letter to Butler County’s police chiefs and the sheriff's office informing them he will be better tracking officer misconduct.

It closely mirrors what Deters sends out -- and describes a neighboring county that had "near disastrous consequences" for failing to disclose Brady material.

“It’s likely, I believe, that police officers are going to be less likely to be engaging in conduct that’s going to put them on a blacklist or a Brady list that’s going to jeopardize their employment,” Gmoser said.

Gmoser: Better tracking, communicating needed statewide

But what about officers who have a Brady violation in one county, then leave for a new police job in another county?

That happened with former officer Joseph Redmond. In Colerain Township, internal investigations found he inappropriately used a confidential police database to get personal information about two women.

The first instance, in 2014, involved Redmond’s former fiancee. She accused him of stalking her, an allegation he denies. A year later, a police investigation found he did it again -- this time the information was connected to a different woman who also accused Redmond of stalking her. He denied the stalking claim, but she took out a restraining order.

Other Ohio officers have been charged with a felony or forced to resign -- and give up their ability to be a cop -- for database violations.

The Hamilton County Prosecutor's Office declined to file charges.

Redmond did resign -- and ended up on Deters’ list of three dozen officers with Brady violations. But he did not give up his law enforcement certificate.

He then found a new job in law enforcement, spending about eight months with the New Miami Police Department in Butler County -- Gmoser’s jurisdiction. New Miami’s police chief even lobbied the state to get Redmond access to the database again.

In getting another police job, he was hardly alone: About a dozen officers have found new jobs as police officers after resigning or being fired due to disciplinary action locally in the past three years.

 

We found that, sometimes, departments fail to do basic background checks that would quickly expose reasons to not hire officers who have run into trouble elsewhere.

Law enforcement experts told the I-Team this system makes it easier for police officers accused of repeated wrongdoing to remain in law enforcement.

Redmond eventually resigned from New Miami, too.

Gmoser wants a better way to know if officers had Brady violations as they move from county to county. He believes prosecutors should share their Brady lists, and that the state should create and maintain a database of police disciplinary records that could be Brady violations.

“Kicking the can down the road is not the solution,” he said. “There has to be some way of tracking this material.”

Digital Reporter Dan Monk, multimedia producer Brian Niesz, as well as freelance journalists Laura Consolo, Kevin Eigelbach,Hannah Hagedorn and Roxanna Swift, contributed to this report.