An officer recruit fires a pistol during firearms training at the George S. Mickelson Law Enforcement Center in Pierre, South Dakota, on July 8, 2024. (Photo by John Hult/South Dakota Searchlight)
Failure to disclose past misconduct by a law enforcement officer can be enough to overturn a criminal conviction, even if that misconduct was decades old and unrelated to the crime that drew the conviction.
Pennington County State’s Attorney Lara Roetzel said that’s why she asked South Dakota Attorney General Marty Jackley to convene a task force to standardize the collection, reporting and sharing of information about officer misconduct.
“My goal is that there would be somewhere that prosecutors and law enforcement agencies could go and share information,” said Roetzel, who was named a member of the task force when Jackley announced its creation in a press release last month.
Details of past misbehavior are often referred to as “Giglio” or “Brady” evidence, named for the two U.S. Supreme Court cases that determined defendants have the right to know about any past dishonesty or ethical lapses by the witnesses against them.
Under those decisions, potentially damning but undisclosed evidence can upend a conviction even if a prosecutor wasn’t aware the evidence existed beforehand.
In an era when police officers regularly move from place to place, Roetzel said, it’s important for prosecutors to be able to keep tabs on which officers have misconduct in their personal histories. There’s no guarantee an officer’s previous employer will pass along information.
Other states also struggle with disclosure, according to a 2022 Minnesota Law Review article.
Some agencies in some jurisdictions disclose all manner of police misconduct, wrote Rachel Moran, a law professor at the University of St. Thomas School of Law. Other agencies may only share and maintain information about dishonesty.
Misconduct lists across the U.S., she wrote, “vary widely and are almost completely unregulated.”
The issue is a significant concern for South Dakota, Roetzel said, which has welcomed a host of officers moving in from out of state in recent years.
“I saw several situations where an officer would move to another jurisdiction, and I felt like I needed to make a call” to the prosecutor in the officer’s jurisdiction, Roetzel said.
Attorney general: Disclosure is ‘foundation of our credibility’
Attorney General Jackley sits on the Law Enforcement Officers Standards and Training Commission, which reviews applications for reciprocity by out-of-state officers and considers requests for reinstatement from officers who’ve gotten into trouble and want a second chance.
The commission also acts as a jury when an officer accused of misconduct decides to push back against the allegations to avoid sanction.
The Giglio implications of an officer’s behavior are especially important considerations for the commission, Jackley said. Criminal behavior, unethical conduct, and allegations of racism or sexism could all impact an officer’s reliability on the witness stand, Jackley said, but dishonest conduct such as lying in a police report or search warrant application can be the most damning at a trial.
Honesty and disclosure of all the facts, he said, “is the foundation of our credibility in the courtroom.”
Police academy adding extra ethics session due to heightened publicity, officer interest
Jackley and Roetzel both said the task force’s creation wasn’t prompted by an overturned conviction, but is preemptive. Every member comes from law enforcement, Jackley said, because “it’s the obligation of law enforcement to disclose.”
Jackley’s press release on the task force said the group will review the U.S. Supreme Court decisions on disclosure and the further decisions that refined what does or doesn’t constitute evidence of misconduct. After that, the group will “make recommendations on how South Dakota law enforcement agencies can comply with the intent and spirit of the decisions.
Misdeeds or allegations of misdeeds that may not be enough to threaten an officer’s certification may nonetheless qualify as evidence that must be disclosed to a defense lawyer, he said.
Jackley said something like a database of misconduct is a possibility, but the first step will be for the group to find a “framework” for what needs to be disclosed and when.
Jackley is running for Congress as a Republican, and is not seeking reelection as the state’s attorney general. He said the decision to create the commission was meant in part to “finish strong” as attorney general by working to improve the justice system for years to come.
Protecting law enforcement
Deuel County Sheriff Cory Borg will serve as board president for the South Dakota Sheriff’s Association for 2026. He’ll serve as the county sheriff representative on the new Giglio task force, alongside other working officer representatives from the Highway Patrol and Vermillion Police Department.
Borg, who’s served as sheriff since 2018, has five deputies to patrol his county, which includes the cities of Clear Lake, Toronto and Brandt. He’s never had to report any misconduct from those deputies, he said, but wouldn’t hesitate to do so.
Nobody hates a bad officer as much as a good officer.
– Deuel County Sheriff Cory Borg
The public sets a high ethical bar for officers and should, he said, since officers serve as public servants. A “bad apple” officer who grabs headlines or tanks a criminal case with dishonesty damages the public’s perception of the field.
“Nobody hates a bad officer as much as a good officer,” Borg said.
Back in Pennington County, Roetzel said she hopes the task force isn’t viewed as a group that’s out to get police. Attending to ethical issues on the front end, she said, shows people that the state respects the rule of law and those who seek to uphold it.
“This is not anti-law enforcement,” she said. “We want to protect law enforcement.”
The group will hold an organizational meeting later this month, according to Jackley’s office, after which its remaining meeting dates will be set.
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