An Oak Harbor police captain filed a $1.5-million tort claim against Island County this week over a “Brady cop” document the prosecutor wrote describing an incident of alleged dishonesty.
Capt. Teri Gardner, the second-in-command at the police department, claims that the potential impeachment disclosure that Prosecutor Greg Banks created to disseminate to defense attorneys is inaccurate, unfair and harms her reputation.
Gardner’s attorney, Joan Mell of Fircrest, said she currently has a similar case before the Court of Appeals and that decision, when it comes, may have bearing on the complaint against Island County.
Mell claims that Banks’ actions are politically motivated and designed to discredit Gardner, who supported an attorney who ran against Banks in a previous election.
“Prosecutors already have a lot of power,” she said. “They should not be judge and jury about what documents say.”
Banks, however, said he had no choice in the matter. To ignore the issue, he said, could jeopardize criminal cases. A judge could throw out a conviction if it turns out that a prosecutor didn’t share Brady material or that the material wasn’t comprehensive enough.
“I’m trying to be fair about everyone involved,” he said. “I just don’t want a criminal to get away with something just to avoid embarrassing an officer.”
By law, prosecutors are supposed to provide defense attorneys in criminal cases with information about any officer involved in the investigation who has had a sustained finding of dishonesty. Such officers are referred to as “Brady cops” in reference to the Supreme Court ruling in the case Brady v. Maryland; defense attorneys could potentially use such information to undercut the credibility of an officer.
Earlier this year, a third party sent Banks information about an investigation by Police Chief Ed Green and the city’s human resources department into Gardner’s romantic relationship with a fellow officer, who became a subordinate to her. Green issued a “warning letter” to her in October of 2014 but didn’t tell the prosecutor about the matter.
Green’s letter indicates that Gardner’s story about her relationship with Sgt. Carl Seim changed over the course of several interviews. She initially said they weren’t romantically involved at the time, then she said they had a romantic relationship during a vacation they took together and finally she said they had a romantic relationship over several years, the letter states.
Gardner and Seim are now married.
Yet Mell said that Green simply got it wrong and that Gardner’s story didn’t change. She said another senior officer was with Gardner during the interview and backs her up. In fact, Green issued a clarifying memo stating that he didn’t find that Gardner had been dishonest. He wrote that his listing of “dishonesty” in a list of policy violations was just a warning and not a finding that she violated the policy.
Banks said Green can’t “unring that bell” with a sanitizing memo. In fact, he points out that a judge in military court earlier this year overturned the conviction of a Navy man accused of raping a child because Gardner’s Brady materials weren’t disseminated.
Yet Mell said the judge in that case was relying on Banks’ summary of the issues in the potential impeachment disclosure, not Green’s warning letter or investigation. She said the memo Banks wrote is inaccurate and unnecessary. Defense attorneys can judge the original materials for themselves and don’t need his book report on the matter, she said.
Mell asked Banks to get rid of his disclosure statement about Gardner earlier this year. He agreed to look at the matter and ended up amending it by adding information from Green’s clarifying memo.
“This office made a determination that certain information,” the disclosure states, “if heard by a reasonable person (such as a judge or a juror), could lead that person to conclude that Capt. Teri Gardner was dishonest in the performance of his/her official duties, specifically in responding deceptively to questions put to her during an internal investigation by the chief of police and the director of human resources at the City of Oak Harbor.”
Banks said the facts laid out in the disclosure were all straight from the chief’s memos.
In Pierce County, Mell represents a deputy who sued over the county prosecutor’s decision to label him as a Brady cop. Mell lost the case but appealed. She said the outcome may answer questions about how much discretion a prosecutor has and whether officers have a right to clear their names, possibly through fact-finding hearings.
Banks said he would have no problem with removing the disclosure from Gardner’s file if told to do so by a judge.
Gardner’s claim against the county is being handled by an attorney from the county’s insurance pool.