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Archie Ingersoll, Published April 12 2014

‘Giglio lists’ track area officers’ criminal records

FARGO – In the databases of the Fargo Police Department, there’s a list that contains the names of 36 officers who have criminal charges on their records.

Every one of the charges – a total of 46 – is a misdemeanor or citation, and almost all of them were filed years ago, before the officers were hired. Six of the charges were dismissed, but the other 40 stuck as convictions, ranging from drunken driving to writing bad checks to urinating in public.

The department, which employs close to 150 officers, keeps this dirty laundry neatly arranged on an electronic spreadsheet, which was obtained by The Forum through an open records request. It’s called a “Giglio list,” named after a 1972 U.S. Supreme Court case. Out of that case and others like it grew the requirement that prosecutors share with defendants and their attorneys any information concerning the credibility of the prosecution’s witnesses – police officers included.

Generally, criminal charges and internal findings of dishonesty or prejudice are considered relevant Giglio material. Fargo’s list names one officer who, according to a judge, was dishonest in a criminal case.

Officers who have serious Giglio issues often find themselves out of work because if they had to testify in court, a defense attorney could question their truthfulness and potentially undermine the prosecution’s case.

“Being a police officer becomes a pretty difficult job if nobody trusts you,” said Fargo police Chief Keith Ternes. “So dishonesty, big or small, is one of those issues that you simply can’t survive within our organization.”

What sort of information needs to be disclosed to the defense is debatable. Without a national standard, police departments are left to decide who is placed on a Giglio list, if they keep a list at all.

Carol Archbold, an NDSU professor of criminal justice, said no nationwide research on Giglio lists has been done, so it’s unclear how may police agencies have them.

The Fargo Police Department is the only law enforcement agency with a Giglio list in the metro area. Moorhead and West Fargo police and the sheriff’s departments in Cass and Clay counties watch for possible Giglio issues among their officers, but they do not keep actual lists, officials said.

Smaller agencies like these are less likely to maintain lists because with fewer officers, it isn’t always necessary, Archbold said.

“What’s unfortunate is that a lot of larger agencies still do not have lists for a host of different reasons,” she said. “A lot of the larger agencies only create the list after something has happened where an officer’s truthfulness has been called into question for a court case.”

Ternes said his department drafted its list about a year ago for reasons of convenience. He said the department sometimes receives requests for Giglio material multiple times a day from prosecutors, and so to simplify the exchange of information, the list was born.

‘Full disclosure’

Anyone who applies to be a Fargo police officer is required to reveal any past charges against them. In addition, the department does a criminal background check. Certain offenses will eliminate applicants: an adult felony conviction; a serious felony committed as a juvenile; or a conviction involving domestic violence or drugs, with the exception of marijuana. Other disqualifiers would be a conviction for a Class A misdemeanor within the past three years, a drunken-driving conviction within two years or a Class B misdemeanor conviction within one year.

When weighing past charges that don’t fall into these categories, police consider how much time has passed since the offense occurred and whether the person was a juvenile or adult at the time. Ternes said it’s not possible for his department to find officers with pristine backgrounds.

“These people are human,” he said. “They engage in the same type of experimental drug use, alcohol use that a great number of the general population engages in.”

None of the officers on the department’s Giglio list have drug charges on their records. Though, at least 29 of the convictions are alcohol-related, including nine for drunken driving, 19 for possessing or drinking alcohol as a minor and one for providing alcohol to a minor. The list given to The Forum did not contain juvenile charges because they are not considered open records, police said.

Ternes said the charges on the list have no impact on the department’s ability to enforce the law. And he feels that most judges would see many of the charges as irrelevant and would not allow defense attorneys to bring them up at trial. Still, the chief believes police must inform prosecutors of these charges.

“We are erring on the side of full disclosure,” he said. “What you see on that list is anything, everything and, in some respects, maybe more information than is necessary.”

Grant Benjamin, president of the North Dakota State Lodge of the Fraternal Order of Police, said he thinks the pre-employment charges do not need to be on the list. “I guess I don’t understand where that would jeopardize or is going to minimize that officer’s ability to do their job,” said Benjamin, a retired Fargo police officer.

Cass County State’s Attorney Birch Burdick said many of the charges on Fargo’s list, namely underage drinking arrests, are petty and wouldn’t sway a jury. “I think when Fargo put that list together they were trying to be all inclusive. Frankly, I don’t think they need to be all-inclusive,” he said.

Moorhead and West Fargo police and the Cass and Clay county sheriff’s offices do not share their officers’ pre-employment convictions with prosecutors when there’s a Giglio request. Officials at these agencies said only findings of dishonesty or prejudice and convictions that occurred after the officer was hired would be sent to prosecutors.

Those departments said none of their officers has a potential Giglio issue, except for Cass County Sheriff’s Deputy Mike McTavish, who has a 2006 drunken driving conviction on his record. He was consequently suspended for five days without pay.

Since 2008, the Cass County Sheriff’s Department has had three officers resign rather than be fired over possible Giglio issues. One was charged with disorderly conduct, and two were accused of dishonesty, according to the sheriff’s department.

The Fargo Police Department has one officer with a conviction incurred while on the force. Officer Paul Lies was arrested off duty for driving under the influence in 2007. He was suspended for two weeks without pay.

‘A black mark’

The potential for Giglio issues played a key role in the recent internal investigation into Jeff Skuza. The Fargo police lieutenant found himself under scrutiny after he tried to hide the fact that his Taser accidentally went off Feb. 14 inside police headquarters, according to an internal police report.

Firing his Taser was a small mistake, but the cover-up attempt brought his trustworthiness into question and created the prospect of Giglio issues if he were to testify in court, the report stated.

Assistant State’s Attorney Tristan Van de Streek told police in a letter, after they asked for advice, that if there was a finding of dishonesty against Skuza, prosecutors would have to disclose it in any cases investigated by the department because he may have supervised the investigation in some way. Even if the prosecution did not ask Skuza to testify, a defense attorney would likely call him as a witness and try to use the finding of dishonesty to undercut the investigation, Van de Streek wrote.

Partly because of this looming Giglio issue, the department’s three deputy chiefs recommended that Skuza be fired, despite his otherwise untarnished 23-year career. The situation reached a tragic climax on March 11, the day after the deputy chiefs sent their recommendations to Ternes. That morning, Skuza fatally shot himself in a cemetery just south of the city.

Ternes has said Skuza knew the deputy chiefs had recommended his firing. The chief has said he had not yet decided whether to fire the lieutenant.

In the same letter to police, Van de Streek noted that, as far as he knew, information from Fargo’s Giglio list has only been used once at trial. In 2011, a defense attorney in a murder-for-hire case brought up Lies’ drunken-driving conviction. “It does not appear that the jury found this impeachment material very persuasive and that case ultimately resulted in a conviction,” Van de Streek wrote.

The letter also mentions a case involving Dane Hjelden, the lone officer on Fargo’s Giglio list, because of a past finding of dishonesty. Hjelden’s appearance on the list stems from a 2005 drug case, in which a judge ruled that Hjelden misread the results of a methamphetamine field test done on a plastic bag found in a woman’s garbage. The charges against the woman were dismissed.

An internal investigation cleared Hjelden of any wrongdoing, and police and prosecutors stood by his actions. “We believe that the judge made a mistake in his assessment of the officer’s credibility,” Van de Streek wrote. “We do not treat this officer any different as a result of his placement on the Giglio list.”

Ternes said that just being on the department’s Giglio list, which includes lieutenants and sergeants, does not hinder an officer’s career. He said he would be comfortable with either Hjelden or Lies, now patrol officers, stepping back into a detective role and that both could be considered for promotions.

Archbold said what frustrates police officers is that once their names are on a Giglio list, it’s difficult, if not impossible, to have it removed. As officers from outside the region once told Benjamin, having your name on a Giglio list is “a black mark that you can’t get away from.”

Readers can reach Forum reporter Archie Ingersoll at (701) 451-5734