Officer’s Brady Due Process Lawsuit Against Prosecutor Fails

Written on 08/07/2021
Will Aitchison

Richard Roe was a veteran police officer who had served in different departments over about 17 years when he applied for a patrol officer position with the Department in July 2018. The Department, which the Court did not identify, is located within Marianne Lynch’s prosecutorial district in Penobscot County, Maine.

During a polygraph examination conducted as part of the hiring process, Roe disclosed incidents reflecting adversely on him which he had not disclosed in his application. He disclosed that: (1) he had used unclaimed knives stored at a police station when he had previously worked for a different police department which he alleged never resulted in any allegation of misconduct; (2) he had been investigated by law enforcement and prosecutors for an on-duty use of force, which he alleged was resolved in his favor; and (3) he had been terminated from a prior police job for allegedly misusing a municipal credit card, but alleged the termination had been rescinded as part of a civil settlement with the municipal employer and that he agreed to resign from the police department. In spite of these disclosures, he was hired to the Department.

A new police chief took over the Department in April 2019. The Chief reviewed the report of Roe’s polygraph examination which had been submitted to the former police chief. On May 3, 2019, based on the disclosures made in that polygraph examination, the Chief contacted a prosecutor in the District Attorney’s office. The prosecutor told the Chief to submit a form to the DA’s office reporting his Brady concerns.

The Chief also spoke with Roe about some of the disclosures Roe had made during the polygraph examination and told Roe that he would be submitting a letter of concern regarding those incidents to the DA’s office. The Chief requested that Roe complete a form providing further information as to those incidents, which would be submitted with any letter of concern. Roe did so; he also denied that the incidents reflected adversely on him.

On May 10, 2019, the Chief submitted the letter of concern, enclosing Roe’s completed form. On May 30, 2019, Lynch sent a letter to the Chief informing him that her office would disclose to defendants some of the prior incidents reported in the Chief’s letter of concern as Brady materials in cases where Roe would appear as a government witness. Neither Lynch nor the Chief notified Roe of Lynch’s letter. The Department took no action based on this letter with respect to Roe’s employment.

On June 27, 2019, the Chief sent a second letter of concern to the DA’s Office regarding new alleged misconduct by Roe. That second letter set forth a further statement that Roe had lied to the Chief and an allegation that he lied on a probable cause affidavit submitted to a court as to whether he had attempted to photograph a domestic violence victim’s injuries when he first responded to the scene of the assault.

In response, Lynch sent a letter to the Chief informing him that based on his second letter of concern, she had determined “that her office could be unwilling to prosecute cases in which Officer Roe has involvement in the future.” In response, the town manager terminated Roe’s employment.

Roe sued Lynch, alleging due process violations under the U.S. and Maine Constitutions. His complaint did not name the town, the department, the town manager, or the police chief as defendants.

The federal First Circuit Court of Appeals dismissed Roe’s lawsuit. The Court found that “Roe does not have a protected liberty or property interest in the prosecutor’s charging decisions, decisions regarding what materials are disclosed to criminal defendants during discovery, or decisions as to who to call to testify at trial. All of these decisions involve the prosecutor’s discretionary judgment and independence, which are protected from interference.

“Roe cannot have a protected interest in something that government officials can grant or deny in their discretion. And discouraging broad disclosure is contrary to the Supreme Court’s recognition that a prudent prosecutor should err in favor of disclosure under Brady and Giglio.

“The parties agree that a public employee may under certain circumstances have a protected property interest in continued employment. But Roe’s assertion fails in any event for a different reason: Lynch was not his employer and she did not make the decision to terminate his employment – the Town Manager did.”

Roe v. Lynch, 2021 WL 1903675(1st Cir. 2021).

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