After the world watched George Floyd’s brutal killing, it was revealed that the Minneapolis police officer who had kneeled on his neck for almost nine minutes was facing 18 misconduct complaints. This information was released because Minnesota allows public access to police disciplinary records.
In contrast, Virginia is one of 21 states where officer disciplinary records are essentially confidential. The Freedom of Information Act allows law enforcement agencies to choose whether to disclose officer misconduct, use-of force and closed-case files. As a result, these materials are typically withheld both from the public and the criminal justice system as life-altering decisions are being made about innocence and guilt.
Keeping this information secret is leaving Virginians vulnerable to police conduct that brutalizes and contributes to wrongfully convicting innocent people. When state lawmakers meet on Tuesday, they should prioritize fixing FOIA to strengthen transparency for police records.
The purpose of FOIA is to hold government accountable and deter abuses, but that isn’t happening when it comes to law enforcement. Official misconduct has played a role in 23 Virginia exonerations that, collectively, have cost taxpayers $16.5 million in state compensation and civil lawsuits. In several of these cases, the actual perpetrators went on to commit additional crimes.
In the “Norfolk Four” case, four innocent sailors spent between eight and 10 years in prison for a rape and murder they did not commit. Former Detective Robert Glenn Ford used coercive interrogation tactics that resulted in their false confessions.
Before the Norfolk Four case, Ford had been demoted for extracting a false confession in another case. Today, he is in federal prison for taking bribes in exchange for falsely claiming to prosecutors and judges that criminals had provided helpful information in homicide cases, and then lying about his scheme to the FBI. Ford was also involved in four pending wrongful conviction claims that have been filed by the Innocence Project at UVA School of Law.
Unlike other places where crooked cops are exposed, Norfolk has refused to do an audit of Ford’s cases and has blocked the efforts of others to do the same. The Norfolk Police Department routinely denies requests for files of cases involving Ford. Even though these cases have long been inactive, the department characterizes them as “ongoing investigations,” which are exempt from disclosure under FOIA. Without these records, innocence organizations cannot conduct a thorough review to determine the full extent of wrongful convictions caused by Ford.
Wrongful convictions such as the Norfolk Four case would be prevented and overturned sooner by addressing problems with FOIA. First, shining a light on police misconduct would allow communities to demand accountability. There would be outside pressure to correct and deter the misconduct that leads to wrongful convictions.
Second, knowing an officer’s background would allow prosecutors, defense attorneys, judges and juries to make more accurate judgments. If a detective who built a case has a history of coercing suspects and witnesses, hiding evidence or lying in court, that would cast serious doubts on a person’s guilt. Access to this information would impact decisions at every stage from the filing of charges to plea offers and verdicts.
Third, access to closed case police files would allow innocence organizations to thoroughly investigate wrongful convictions claims. Robust disclosure laws in other states have been an important tool in exonerations. Last year, three men who spent 36 years in prison for a Baltimore murder were freed after a public records request revealed the identity of the actual perpetrator. In Virginia, agencies consistently deny similar requests, which cuts off a source of investigative leads.
Before there can be real changes to policing and criminal justice, there must be an understanding of the problems that exist. Lawmakers can take the first step in meaningful reform by improving access to law enforcement records.
Shawn Armbrust is the executive director of the Mid-Atlantic Innocence Project. Jennifer Givens is the director of the Innocence Clinic at University of Virginia Law School.
