Conflicting policies of police and prosecutors jeopardize high-stakes criminal cases

Taylor Brooke Lister was 24 years old when she was killed in a car crash near Clinton Lake on Nov. 6, 2016. 

“She was killed four days after her birthday. Our birthday — we share the same birthday,” Kim Miller, her mother, said. 

Law enforcement and prosecutors believed there was enough evidence to charge the driver, Steven A. Drake, 19 years old at the time of the crash, with vehicular homicide. 

Drake was sentenced Friday to eight years in prison — but not a day of that punishment is connected to Lister’s death. 

Prosecutors had to drop the case because of integrity issues with one of the investigating officers. And it’s not the only one.

Deputy Douglas County District Attorney Joshua Seiden said he would estimate, conservatively, that the DA’s office has dismissed more than 50 cases for issues related to officer credibility since District Attorney Suzanne Valdez was sworn in. 

Along with the Lister homicide, Seiden said the office has declined to prosecute at least one alleged sexual assault and dismissed charges including aggravated kidnapping, aggravated robbery and assault with a deadly weapon. 

Asked if she felt that the system failed to get justice for her daughter, Miller said “Absolutely.” 

“And I will tell you this: If I ever wanted to commit a crime and get away with it, I would do it in Lawrence, Kansas.” 

Officers called to testify are subject to scrutiny during court proceedings. Prosecutors need to be aware of any dishonesty or bias in criminal and professional histories, and they have a legal duty to turn that information over to defense attorneys.

Lies from law enforcement can lead to guilty defendants walking free, innocent defendants getting convicted, and crime victims getting no justice or closure. 

Now, dueling policies about officer truthfulness and bias are straining the relationship between police and prosecutors in Douglas County. 

Valdez has set high standards for what kind of information she expects law enforcement agencies to turn over to her office. She’s provided law enforcement with an 11-item checklist, including about 20 questions, to complete regarding each officer. Law enforcement says it’s too much. 

The county sheriff and four chiefs of police have written their own uniform policy that lists much more restricted personnel records that they will disclose to prosecutors. The agencies worked with their own legal counsel and the Lawrence Municipal Court prosecutor. The DA says it’s not enough. 

Ultimately, if the two sides can’t get along, “They can’t serve the public interest in public safety. They can’t serve the public interest in respecting individual liberty for the defendants,” said Jon Abel, associate professor at U.C. Hastings College of the Law. 

“They’re not even using taxpayer money well — they’re spending their time fighting each other. These two institutions really do need to get along and find a constitutional way to resolve their disagreements.”

Brady basics

These policies dealing with officer truthfulness and disclosure of evidence are often called “Brady-Giglio” policies. 

Put very simply, Brady v. Maryland and Giglio v. United States were landmark cases in which the U.S. Supreme Court ruled that prosecutors must provide to defense attorneys all evidence that could show that a defendant is not guilty. That includes information that could make a jury question a particular witness’s credibility — for instance, if a witness had been granted immunity in exchange for their testimony.

If a law enforcement officer commits a “Brady” violation, that would generally mean they had withheld exculpatory evidence or fabricated evidence; “Giglio” evidence would generally include information showing that an officer had been untruthful, had shown racial bias, had a criminal history or history of professional complaints, and more. 

Why does it matter? 

All of this information could be critical to a defendant getting a fair trial. When there are violations, it can mean that cases get dismissed or convictions get overturned. That’s a big reason why most prosecutors won’t allow “Brady- or Giglio-impaired” officers to testify in their cases. 

Defendants are entitled to that information, but prosecutors are not the keepers — the personnel files belong to law enforcement. 

In some police departments, rather than fire officers who are unable to testify, those employees are moved to what is often dubbed a “rubber-gun squad” — officers who are not allowed to work on the streets or on investigations, but who continue working in administrative capacities in the department.

Lawrence Police Chief Rich Lockhart, who previously worked 26 years with the Kansas City, Missouri, police, said in a February interview that some of that department’s 1,400 officers “were put in positions where they would never have to testify” because of Brady-Giglio issues.

All five Douglas County law enforcement agencies — the Lawrence, University of Kansas, Eudora and Baldwin City police departments and the Douglas County Sheriff’s Office — said they would not retain an officer who was found after an internal investigation to have been untruthful. They said they report that information to the Kansas Commission on Peace Officers’ Standards and Training to make a determination of whether the officer keeps their certification — and, in theory, whether they could work elsewhere in law enforcement. 

In addition, the agency leaders said their policies and expectations extend to all employees — including those such as records custodians, civilian scene investigators and spokespeople. 

But the issues aren’t always that clear-cut. Standards vary widely, and individual court cases can have life-altering impacts for all involved. 

As it currently stands, Seiden said none of the area law enforcement agencies are in compliance with the DA’s policy. 

Exhibit A: Recent Douglas County cases

Area law enforcement — through the uniform Brady-Giglio policy they all implemented April 15 — has agreed to turn over information about officers’ “sustained findings of misconduct related to truthfulness.” As noted above, each agency also said they would no longer employ those officers. 

But the district court — in at least one Douglas County case, State v. Duc Tran — determined in 2020 that a complaint, alleging that an officer wrote a false report and omitted key facts, should have been provided to the defense even though the Lawrence Police Department’s internal investigation found it to be unsubstantiated. 

Tran’s case was dismissed in November 2020. The effects snowballed; at least two defense attorneys received letters from the DA’s office shortly after that ruling, notifying them that there was Giglio material in that officer’s personnel file. The officer’s employment ended Jan. 6, 2021. 

Asked about the circumstances of that case and whether the law enforcement policy is sufficient to prevent similar circumstances from happening in the future, Laura McCabe, spokesperson for LPD, mentioned pending litigation and disagreed with the summary of the case included in the question.

But she said that “it is the policy of the Department to comply with Brady and Giglio and to provide such information to the prosecutor in a prompt and timely fashion so that the prosecutor can make an informed decision regarding whether or not the information is material such that it must be disclosed under either Brady or Giglio.” 

The DA’s office took a different position on unsubstantiated complaints and noted that the law enforcement policy is in direct conflict with theirs. 

“Although a law enforcement officer’s peers may determine that an allegation or complaint against that officer should not be sustained, the Court may still view that as material that should be disclosed under the prevailing legal authority,” Seiden said. “Just because something is subject to disclosure does not necessarily mean it would be admissible, but it could lead to other relevant, admissible evidence. That is a judicial determination. However, we cannot even get to that point until such a matter is brought before the Court.”

Seiden said the DA’s policy was tailored to ensure that complaints like the one in State v. Tran get turned over to prosecutors, and “the law enforcement policy simply codifies the philosophy that has repeatedly failed and continues to fail.” 

“Under the law enforcement policy, the agencies would not disclose the conduct associated with those matters to the District Attorney’s Office, which is precisely what led to the unfortunate handling of State v. Tran by the prior administration. This office has declined prosecution or dismissed numerous cases due to the ruling in State v. Tran.” 

Former Douglas County District Attorney Charles Branson declined to comment for this article. 

Another point of the law enforcement policy states that the agencies will turn over “Any criminal convictions, including juvenile convictions, involving acts of dishonesty.” But the DA’s office checklist also seeks information about any arrests in an officer’s record. 

In a recent expungement case that this publication covered, a Baldwin City police sergeant sought to seal his criminal record. He was never convicted, but he had been arrested and charged in two separate cases with two misdemeanor counts of false impersonation and official misconduct and theft. In that case, the judge ruled that the arrests and charges could be wiped from the sergeant’s records, but the sealed information would be accessible in any trial where he is called as a witness. 

But his boss, BCPD Chief Mike Pattrick, who spent roughly 28 years of his career with LPD, said that “An acquittal in a case where truthfulness was at issue would not be disclosed as there would be no conviction or finding to disclose.” 

Bill Amato, now a legal adviser, wrote the Maricopa County, Arizona, Attorney’s Office’s policy on law enforcement integrity records when he worked as a prosecutor. He has worked with the International Association of Chiefs of Police and its Legal Officers Section. Amato said he thinks arrests are “very relevant.” 

“To have a conviction, you have to prove it beyond a reasonable doubt. Yet to find them (an officer) in violation of policy, it’s a preponderance of the evidence,” Amato said. 

“So I don’t think you can hang it just on conviction, because I think there are situations where an officer, based on a preponderance of the evidence standard, was found to have done something wrong, whereas they might not have been found to have done it wrong beyond a reasonable doubt.”

However, regarding complaints that have been investigated and cleared, Amato said “officers get all kinds of allegations and complaints of misconduct.” 

“I can understand why, if a prosecutor gets burned by a judge, they would like to see us provide — from a law enforcement perspective — more to them, rather than less to them,” he said.

“But conversely, you know, on the law enforcement side, I have to represent my clients and think about the other situation, not just the Brady implications, but the potential of harm to the organization, as well as the employees.”

Abel, author of the article “Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team,” published in the Stanford Law Review in 2015, said such complaints can come down to case-by-case determinations. 

“We’d have to know why some of these complaints are unfounded,” he said. 

For example, if an officer is being investigated by Internal Affairs for falsifying records, and the officer who made the report says they don’t want to participate in the internal investigation anymore, the case may get closed down. Therefore, there wouldn’t be any founded allegations, but that could still be Brady material if it leads to evidence or questioning that undermines the witness’s credibility, Abel said. 

“If that material is told to the defense, perhaps the defense will do further investigation; they might reach out to one of the officers involved or to other officers. They could ask the officer who’s accused of the misconduct about the incident,” Abel said. “They could ask the officer questions about that on the stand, and he’d have to answer under oath. So there is definitely potential for an allegation not to be sustained during an internal affairs investigation, and yet it would be really important information to tell the defense about, and to tell the jury about.” 

The policies do agree that present allegations of misconduct related to truthfulness, credibility, integrity, bias or discrimination should be disclosed to prosecutors. 

Amato said he thought that was good, because if an internal investigation is looking like it’s going to result in an allegation of bias being true, for example, and an officer is set to testify in trial tomorrow, prosecutors need to make sure they can vet that information through the court to determine if it’s relevant in that trial. 

When LPD Chief Lockhart shared details about some complaints against officers with the Community Police Review Board on April 14, that sent up red flags for the DA’s office. Seiden said that was “the first we heard of any of these allegations,” which should have been disclosed, according to both policies. 

Asking too much? 

The DA’s policy went into effect in January, following several meetings with law enforcement leadership. However, law enforcement says the policy doesn’t take their concerns into account. 

“While there was some interactive discussion of the policy and its issues, questions were dismissed, there was no collaboration on language or provisions, and the Department was not afforded the opportunity to proffer an alternative policy. It was simply presented to the Department as the District Attorney’s ‘final’ policy and that was it,” McCabe, of LPD, said. 

“… Moreover, the District Attorney’s proposed policy would cost the taxpayers thousands of dollars, unnecessarily, as the Department would have to complete the various checklists, monitor those checklists, and update those checklists for over 175 employees,” McCabe said. 

She also said that following the DA’s policy would expose the city to “liability for the invasion of privacy of its employees, as the District Attorney made various forays into private information maintained in the personnel files of its employees. And, as stated before, none of that is required by the law, including Brady, Giglio, or their progeny.”

20220110-DgCo-DA-Giglio-checklist

Asked for statutes or case law that raise that particular concern for the city, McCabe said privacy within personnel files was a “densely litigated matter.” She cited two cases (Griswold v. Connecticut, a 1965 U.S. Supreme Court case, and Froelich v. Adair, a 1973 Kansas Supreme Court case) that related to private health information within the realm of a marriage and established a general right to privacy with personal information, though they are not specific to Brady-Giglio issues. She also cited HIPAA — Health Insurance Portability and Accountability Act — information that may be in personnel files. She did not immediately respond to a follow-up email asking for additional Kansas cases. 

Douglas County Sheriff Jay Armbrister said the sheriff’s office had not yet complied with the DA’s policy and was seeking advice of counsel. 

He said he had approached the DA asking to revisit the checklist, “and was told there would be NO discussion or changes to the current system the DA imposed.”

Pattrick, of BCPD, said “There is clearly a troubling disconnect between the District Attorney’s Office and every other law enforcement and prosecution office in Douglas County. I would welcome any and all constructive efforts to make sure all parties concerns were being taken into consideration so we can come together to protect our communities and the rights of the people we serve.”

Seiden said none of the law enforcement leaders had ever indicated that their agencies would not comply with the policy. 

“Regardless of whether the law enforcement agencies believe the checklist oversteps what is required of them, history indicates that they have repeatedly fallen short of meeting their disclosure requirements, and this responsibility ultimately falls upon the State,” Valdez said. “With respect to the costs of this policy, taxpayers have already incurred substantial costs related to prosecution and ultimate dismissal of cases investigated by tainted officers. The emotional costs incurred by the victims and survivors in those matters are immeasurable.” 

Other perspectives

Amato noted that he would take issue with another item in the DA’s checklist, which asks, “Has anyone in your agency/department, or any other agency/office/department expressed an opinion/reputation about this officer concerning his/her truthfulness, credibility or veracity?” 

“Unless there is some credible evidence that their opinion is more than just an opinion, I can tell you, I would be advising every one of my clients that we are not going to be providing rumor, gossip, hearsay opinion,” Amato said. 

Abel, after reviewing the checklist, said he thought the DA was asking the right questions. Because the police officers and the sheriff’s deputies are members of the prosecution team, even if they don’t tell the DA about some of this material, the law is still going to treat the DA as if she knows it, he said. 

“They (law enforcement) can have a policy that discloses less than the prosecutor wants, but it’s up to the prosecutor to decide what’s required by Brady-Giglio,” Abel said. 

Angela Keck, a defense attorney who has represented many defendants in Douglas County District Court cases, lauded the DA’s policy and shared concerns about law enforcement’s hesitancy to follow it. 

“If the police department is able to hide these types of things from the public, there is really no way to measure the integrity of the positions that they hold,” she said. 

Asked whether she believes any of her clients have been wrongly incarcerated or convicted because of officers who should not have been able to testify, Keck did not hesitate: “Oh, yes. Many.” 

“You end up having to fight harder and harder and harder,” she said. “It’s like beating your head against a brick wall.”

Keck said she has seen her records subpoenas — formal orders for someone to come to court to testify, and bring records with them — for Brady-Giglio information about officers met with mixed results. Sometimes her clients have been offered sweetheart plea deals at the last minute. On another occasion, she said an agency had filed a complaint against her, coming after her bar license and alleging that she was abusing her subpoena power. The complaint was ultimately dismissed, but she had to hire her own attorney and fight it. 

“Defense attorneys need to report misconduct when they see it,” Keck said. “I think as the defense bar, we need to be doing more to fight this fight together.”

Miller — mother of Taylor Lister — said of law enforcement, “I don’t understand what the problem is with full disclosure. I mean, they need to be honest, they need to be upfront.”

Looking ahead

It doesn’t appear that this conflict is going to be settled in quick fashion. 

Lockhart responded to Valdez’s email seeking information about the officers mentioned in the complaints he shared with the CPRB:

“I am committed to working through Brady Giglio related issues with you. I believe the collaborative work produced by those involved in the development of the policy adopted by all Douglas County law enforcement agencies and the Municipal Court Prosecutors, is an example of the outstanding work we can do when we collaborate.

“We feel like this is a positive outcome for our community, creating a model policy to comply with Brady Giglio.  It provides transparency and consistency as all Douglas County Law Enforcement Agencies are following the same policy.”

Valdez said the law enforcement agencies are welcome to implement their own internal policies, but the obligation of disclosure ultimately rests upon the State through her office, and her policy is the one that her office will abide by.

“We have legal mechanisms in place to enforce compliance, and that is how we shall proceed given that the law enforcement agencies have rejected our streamlined approach,” Valdez said. “It is disappointing that leadership at those agencies have elected to unnecessarily subject the public and their own employees to a more onerous process. It is concerning to see this much pushback against even slight measures of accountability and transparency in policing.”

Seiden also said no one associated with any of the law enforcement agencies had identified any checklist items that would require disclosure of any HIPAA-related information.

“In requesting these materials, we’re relying upon Giglio and its progeny,” Seiden said. “If law enforcement wants to claim some sort of exception, then they can make that claim once we have subpoenaed those records.”

20220415-Law-enforcement-uniform-Brady-Giglio-policy

Lives ‘drastically’ affected

When cases are dismissed, it can leave the public questioning the safety of their communities — and victims and their families reeling.

That’s what happened to Taylor Lister’s family. 

Drake wasn’t charged with vehicular homicide until two years after Lister’s death — after he had already put a 16-year-old in the hospital with a brain bleed in July 2017, and shot and killed a 26-year-old man that September. He entered a plea in the aggravated battery case, and a jury in February found him guilty of voluntary manslaughter. 

Still, not a day of Drake’s time served has been or will be for Lister. 

The homicide case had finally been set for trial in August 2021, but Miller said prosecutors called her and Lister’s father to come in for a meeting — “to regretfully inform us that they were going to have to drop the charges.” 

Miller said they were told that the officer had been “fired, because of ethics, basically. I don’t know if it was making a false report, or testifying and lying,” she said. 

“So they said therefore, we continue with the case with Taylor, we win, he (Drake) gets whatever (sentence) he gets — but then they will appeal it and they will win on appeal because of that officer’s act.”

Armbrister was unable to provide much specific information regarding the case because of pending litigation. However, he said “when I took office as Sheriff in 2021 I brought newly-learned information about what I believed could be Brady-Giglio impairment involving this individual to the District Attorney’s office, which then set the wheels in motion. I was also personally present to  notify Taylor Lister’s mother of the situation and the reason why the case was dismissed. 

“This was never the outcome we wanted, especially in a tragic, high-profile case, but my actions in bringing  this information to the DA show our commitment to a fair and just system and that the system is working well.” 

Armbrister said he was devastated at the result of the case, and denial of justice for Lister’s family was the same as no justice. 

“However, the reality is, all organizations have issues with employees; law enforcement is not an exception, and it is up to me as Sheriff to make sure my deputies and employees adhere to the highest standards that are demanded of us by this community,” Armbrister said. “This individual did not meet that threshold and I took the necessary steps to contact the District Attorney with my concerns in order to protect the integrity of our justice system as a whole, even at the cost of the Sheriff’s Office’s reputation.” 

Lister’s mother doesn’t understand why Drake couldn’t even be charged with driving under the influence — his blood work showed marijuana and xanax in his system, according to documents in the case file. 

But the difficult truth of the law is that if an officer’s testimony can’t be trusted, it doesn’t matter what the case is — whether a homicide, a DUI or even a speeding ticket — or how much it matters to those involved. 

For Lister’s parents, several siblings and other loved ones, these issues aren’t just about policies. Miller said lives are being affected, “drastically.” One sister “went off the deep end … and she just hasn’t been the same since,” Miller said. 

Asked what she wanted people to know about Taylor, Miller was quick to tears. 

“She was a very good person. She cared about people,” Miller said. “She had her whole life ahead of her, and he took it away from her.”

Read the sidebar story: Full disclosure: How law enforcement answered questions about officer truthfulness policies

Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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