Court of Appeals of Oregon Finds Brady Violation Based on Trial Court Preventing Defense From Accessing Deputy’s Disciplinary File

Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the State has an affirmative duty, under the Due Process Clause, to disclose material exculpatory evidence to the defense. Usually, the State commits a Brady violation on its own. But, in the recent opinion of the Court of Appeals of Oregon in State v. Bracken, 2025 WL 1706529 (Or. App. 2025), the had an assist from the trial court.

The court laid out the facts as follows:

Defendant is the owner of the Point 9 bar. Douglas County Sherriff’s Deputy Whetzel entered the bar late at night looking for a person in an unrelated matter. Whetzel had been to Point 9 many times before in his official capacity and had a contentious relationship with defendant. Defendant, who appeared very intoxicated, approached Whetzel and asked what he was doing there. Whetzel activated his body worn camera and asked defendant if he was in control of the bar. Defendant said that he was not. Whetzel determined that by “confront[ing]” him, defendant had “assum[ed] the role of manager,” which was a violation of OLCC administrative rules to do while under the influence of intoxicants.

Whetzel ordered that the bar be shut down. The bartender insisted that she was in control of the bar, but Whetzel said that defendant “was just taking control of the bar just now,” and ordered the bartender to pull the customers’ drinks. The bartender did so while defendant and Whetzel continued to argue about whether defendant was in control of the bar and whether Whetzel was allowed in the bar.

As the customers were leaving, defendant walked away from Whetzel and was pushing open the door when Whetzel said, “You’re not going anywhere, [defendant].” With his left hand holding the door ajar, defendant turned slightly toward Whetzel and said, “Yeah, I am.” Whetzel immediately walked toward defendant and responded, “No, you’re not. You’re not free to go.” Whetzel repeated, “You’re not free to go” multiple times as he moved toward defendant. Defendant turned and faced Whetzel directly and said, “I’m going home.” In turning toward Whetzel, defendant took a step backward, moving from the interior of the door’s threshold to the exterior threshold. Defendant was still holding the door open with one hand and had his other hand in his pocket. Whetzel was within a few feet of him and still moving forward. When he reached the interior of the door’s threshold, Whetzel said, “Get back in here.” Defendant made no movement except to shake his head and said “No.” Whetzel responded, “Okay, you’re under arrest” and reached toward defendant.

Defendant lifted his arms and “pulled himself away” as Whetzel grabbed him. The struggle brought them both outside into the parking lot, where Whetzel forced defendant to the ground and handcuffed him.

At trial, defendant argued that he had engaged in passive resistance and acted in self-defense. He argued that passive resistance was a defense to IPO and resisting arrest and that his use of physical force in response to Whetzel’s arrest was reasonable because Whetzel applied more force than necessary. The court denied defendant’s MJOA on the IPO charge, and the jury convicted him on both charges.

Prior to trial, the defense sought to subpoena 

[Packet] 1. The complete disciplinary file of Deputy Travis Whetzel, * * * and specifically including any and all complaints, whether or not investigated, whether or not dismissed, and whether or not any adverse findings were made, to include any reports made by Apryl Morris and all arising out of interactions at or around the Point 9, Canyonville establishment;

[Packet] 2. All reports and recordings, including the body worn camera of or which refer to Travis Whetzel in that relate in any fashion (subject, witness, defendant) to [defendant] and/or the Point-9, Canyonville establishment in the past ten (10) years;

[Packet] 3. All reports and recordings, including the body worn camera of or which refer to [State] v. Daniel Schrack; 21CR05983.

The court allowed the defense access to Packet 2, but denied it access to Packets 3 and 1, finding that the latter “was protected under the public officer privilege…and was exempt from discovery.”

On appeal, the Court of Appeals found that this was a Brady violation, concluding that

We readily conclude that the evidence in Packet 1, which included Whetzel’s disciplinary file, would have been favorable to defendant. The central issue in this case was one of credibility and the file contains information that is favorable to defendant on that issue. The state relied on Whetzel’s testimony to prosecute its case—he was the only witness the state called. Whetzel testified about his previous interactions with defendant, including giving citations to the bartenders at Point 9 and giving defendant a warning “on a previous occasion.” Despite their history, Whetzel testified that he had “always gone in [to Point 9] to do [his] job.”…

Suppressing the evidence was also prejudicial to defendant. Defendant’s theory of defense was that he engaged in passive resistance and self-defense in response to Whetzel’s orders and arrest. He argued that, due to a long history of animosity between defendant and Whetzel, Whetzel “lost perspective” and “just turn[ed] it up right away.” In support of his theory, defendant called as a witness a former Point 9 employee, who testified that Whetzel came into the bar “two or three times a week” to do “walkthroughs.” She testified that Whetzel was always “negative,” “angry,” and that interactions between defendant and Whetzel “always looked like there was going to be a confrontation.” Thus, evidence supporting defendant’s narrative—and contradicting the state’s—would have raised a reasonable probability of a different result….

-CM