A Little Rock defense attorney suing Pulaski County prosecutors under the Arkansas Freedom of Information Act to get records of police officers whose misconduct records raise potential credibility issues got more time to try to prove those records for so-called "Brady cops" exist.
Lawyers for chief deputy prosecutor Kelly Ward told Circuit Judge Herb Wright on Thursday that such records aren't held by prosecutors so there's nothing to give attorney Michael Kaiser. Wright said the open-records law doesn't give him the authority to make prosecutors compile records and he can't compel them to turn over materials they don't have.
"You've got to figure out if it exists before you get it. If it doesn't exist, you can't get it," the judge said. "You're telling me you don't know it's there. I can't order them to turn over something that's not there."
Wright said Kaiser can have a couple of weeks to refine his request, suggesting that Kaiser and prosecutors confer about what records they have that might satisfy Kaiser's request.
"I'm going to confer ... and try and reach a resolution to avoid years' worth and dozens of additional FOIA requests and dozens of additional FOIA appeals," Kaiser said after the hearing. "I don't want to keep litigating this. I will figure this out and I will get this information."
Kaiser, with the firm Lassiter and Cassinelli, requested materials about tainted law enforcement officers, not all of whom are still employed, in the 6th Judicial District of Perry and Pulaski counties.
"I'm a criminal defense attorney and a citizen of this county. I deserve to know who our dirty cops who aren't trustworthy are," Kaiser said, explaining his interest.
The term "Brady cops" has its roots in the 1963 U.S. Supreme Court decision Brady v. Maryland that requires prosecutors to provide the defense with any evidence that might exonerate the defendant. "Brady cops" would be officers who have been in trouble for dishonest behavior, such as lying, that can call their credibility into question when testifying at trial.
When Ward responded to Kaiser's request, stating that prosecutors don't have what he wanted, Kaiser sued under the Freedom of Information Act. He said he knows prosecutors have what he wants because he got a Brady list last year from prosecutors when he requested it through the open-records law, receiving a 20-page spreadsheet naming officers from the 10 police agencies in the two-county circuit.
Kaiser had asked in 2022 for the prosecutor's list of any and all law officers "who have been, may be, or may have been disciplined."
His request at issue before the court is more detailed, seeking the names of all law enforcement officers who prosecutors have acknowledged in court have disciplinary records that might contain Brady material, the names of officers who have been found by a judge to have Brady material, and the police agency records that document disciplinary findings.
Based on the materials he's received from prosecutors, Kaiser said he believes there's a list that authorities don't want to be made public. He said not keeping a list would be irresponsible given that the credibility of police is so critical to the criminal justice system.
"We're not asking for something that is not important. A FOIA request has to have some significance to the public," Kaiser said. "I can't think of a request that has more significance to the public as it relates to the criminal justice system than knowing who our officers are ... who are not trustworthy or have committed other bad acts."
Elected prosecutor Will Jones said after the hearing that prosecutors do have a publicly available list of officers, like the one provided to Kaiser, whose disciplinary record could be at issue in court.
But beyond that, Jones said, his office doesn't keep the records Kaiser wants, which are essentially personnel records from the police agencies that are largely exempt from disclosure under the Freedom of Information Act.