June 16, 2021
Lawrence, US 94 F
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Douglas County sheriff failed to preserve a recording in felony case, he testifies; this isn’t the first time

Douglas County Sheriff Jay Armbrister sat at the witness stand during a jury trial last month and testified that he failed to save a recording in a high-level felony case. 

On that recording, the defendant apparently made a claim of self-defense. 

“I can sit here and make excuses all day,” Armbrister began, as the prosecutor asked him what happened to the audio and video recording of the traffic stop. 

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Armbrister went on to say that he knew the video existed at one point, because he watched it and wrote his report from it, and his report did include the defendant’s exculpatory statements. 

But the recording — which could have given jurors a chance to hear for themselves exactly what the man said a very short time after an altercation and shooting that left a teen seriously injured — was gone forever. 

“It was absolutely my fault,” Armbrister said. 

But it’s not the first time the law enforcement official has had to testify about a recording in a high-level felony case going missing. 

Judges can dismiss cases, and law enforcement officers can face discipline or even lose their certification, if potentially exculpatory evidence is lost. It jeopardizes the defendant’s constitutional right to a fair trial. 

The July 2017 sex crime case

Armbrister won 39% of a three-way vote to secure the Democratic nomination for sheriff in the August 2020 primary election. 

Before that, Armbrister told this reporter that he had lost a recording in a sex crime case in which the defendant is facing a level-1 felony charge.

In that case, the recording was an interview with a heavily intoxicated woman while en route to the hospital for a sexual assault examination in July 2017. 

The woman said the defendant had performed oral sex on her without her consent. But documents in the case file and transcripts of court hearings indicate that the woman changed her statements multiple times — for example, at one point she was unsure whether the alleged incident had occurred at all. Some witnesses’ statements also conflicted with what she had said. 

“I stand by my statement that this (losing the recording) was an error, and I will explain it to any jury or court,” Armbrister said via email in July 2020.

The defense attorney filed a motion to dismiss that case, in part because that recording could have held exculpatory evidence, but the motion was denied. The judge wrote in his memorandum decision that “evidence simply does not, taken as a whole, reveal bad faith by the law enforcement officers involved.”

If the defendant is convicted in that case, he would face a minimum sentence of about 12 years in prison and a maximum of more than 50 years, depending on his criminal history. 

The defense attorney later filed a formal complaint against Armbrister, a detective and a deputy who investigated the case. The investigation — which then-Sheriff Randy Roberts sent to an outside agency, the Johnson County Sheriff’s Office — determined that Armbrister had violated department policy but didn’t break any laws. 

Neither Armbrister nor DGSO disclosed whether or how he was disciplined for the policy violation, though Armbrister posted to Facebook that “I have accepted my consequences.” 

‘Not tech-savvy’

Armbrister is “not tech-savvy,” he testified in the trial last month. 

The missing recordings in both cases were not saved appropriately in the sheriff’s office’s system, according to Armbrister’s testimony. He said he was an “old dog learning new tricks.” 

Recordings from DGSO body-worn microphones and in-car patrol cameras are automatically uploaded to Watchguard, the initial storage system for such recordings. Deputies tag recordings with a category so the system knows how long to retain them — traffic stops, for instance, are retained for a shorter period of time than a sexual assault investigation would be. 

To be retained longer than that category’s standard time frame, deputies must move recordings into case files in Spillman, another law enforcement records system that the agencies in Douglas County use. 

Recordings tagged as felony investigations are retained in the Watchguard system for one year. If they’re not saved in Spillman, there’s no way to bring them back when they’re purged from the system, but the system keeps a record of whether a recording was ever uploaded. 

In the July 2017 sex crime case, Armbrister and the deputy working the investigation — now a detective — both failed to secure the recordings within one year. The case was not charged for more than a year after the report; no defense attorney would have had a chance to seek out that evidence. 

That investigation occurred about six months before the January 2018 shooting incident that went to trial last month. 

Deputy Charlie Cooper, public information officer for DGSO, said via email that the agency was not aware of any other felony cases in which Armbrister or any other DGSO employee has lost such a recording or other type of electronic data. 

The Times asked what DGSO would say to public questions about the issue arising in another case or whether this was a pattern of concern. 

“Sheriff Armbrister and this agency have never attempted to hide these facts nor attempted to shift blame in any way, going so far as testifying in court multiple times that these things happened and it was his/our fault,” Cooper wrote. 

In the case that went to trial last month, “exculpatory evidence (statement of self-defense) that would have been heard in the video was clearly placed in Sgt. Armbrister’s report,” Cooper wrote. “If a cover-up was the end goal of not saving this recording, this statement would have been omitted as well.  This is just one more point showing that there was no concerted effort to hide or cover-up evidence in either cases you referenced.”

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Cases dismissed?

Cooper said DGSO was also not aware of any felony cases being dismissed in part or entirely due to lost recordings or lost data. 

The Times asked Jill Jess, public information officer for the Douglas County District Attorney’s office, whether DA Suzanne Valdez has dismissed any felony cases since she took office in January because of missing evidence, digital or otherwise. 

Jess said, via email, “When a case is dismissed, the reason is noted in the written motion.” 

In two rape cases that the Times has followed, the state’s motions to dismiss filed after Valdez took office in January provide the reasons “in the interest of justice” or “for necessity.”

Asked whether the DA’s office has access to Spillman and Watchguard, Jess said the DA’s office “has access to an array of proprietary software applications.” In response to a follow-up question to clarify, she said they do not have direct access to any of their servers, and their process is to work face-to-face with law enforcement in preparation for court. 

The defense attorney in last month’s trial did not respond to the Times’ email invitation for comment for this article.

— Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached via email at mclark@lawrencekstimes.com or 785-422-6363.

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