Lawrence Police Department has agreed to comply with DA’s policies
Conflict has been worsening between the Douglas County sheriff and district attorney amid an ongoing dispute over personnel records.
In the time since we began to shed light on this issue lurking within the Douglas County criminal legal system in April, Sheriff Jay Armbrister has informed DA Suzanne Valdez and Deputy DA Joshua Seiden that he will no longer be communicating with them.
“It has become abundantly clear that our working relationship has deteriorated to the point where we can no longer work in an efficient and respectful manner, therefore you will now need to reach out to and communicate with Undersheriff (Stacy) Simmons,” Sheriff Jay Armbrister wrote to the DA’s office in June. “… This is effective immediately and if by some chance order is restored between our offices, we can reassess this.”
The breakdown of communication stems in part from a disagreement over what information the sheriff’s office must share with prosecutors regarding employee misconduct.
Just a few months ago, the dispute involved the sheriff’s office as well as the four police departments in Douglas County; however, the largest department has since agreed to comply with the DA’s policies.
Dueling policies on Brady/Giglio
Specifically in question is “Brady/Giglio” information. The name comes from two landmark U.S. Supreme Court cases.
If a law enforcement officer commits a “Brady” violation, that would generally mean they had withheld exculpatory evidence or that they had fabricated evidence; “Giglio” evidence would generally include information showing that an officer had been untruthful, had shown racial or other bias, had a criminal history or history of professional complaints, and more.
Prosecutors need to be aware of dishonesty or bias in criminal and professional histories because 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.
Valdez in January provided area law enforcement with a detailed, 11-item Brady/Giglio checklist to complete for each employee, asking about things such as whether an officer has provided inconsistent statements about material issues in a case; been arrested themselves; been accused of untruthfulness or inaccurate reporting; failed to report a use of force; whether the department had conducted any investigations for misconduct regarding credibility or integrity, and more.
But in April, Armbrister and the chiefs of police for Lawrence, Eudora, Baldwin City and KUPD worked with legal counsel to create their own policy that lists the information that they will disclose to prosecutors. It’s less than what the DA has requested from them — convictions instead of arrests; only sustained findings of misconduct regarding truthfulness; and present allegations of misconduct involving bias and truthfulness.
However, in the time since, Chief Rich Lockhart and the Lawrence Police Department have agreed to comply with the 11-item checklist from the DA’s office, Seiden said.
“We are confident that the Lawrence Police Department’s compliance will encourage our other law enforcement partners to follow the policy,” Seiden said.
Armbrister had already instructed his command staff to start completing the Brady/Giglio checklists back in February.
“It was brought to my attention yesterday that we still need to complete our Brady-Giglio forms for all officers and deputies as well as any civilian staff that may testify,” Armbrister wrote in an internal email. “This is a big undertaking since we have so many folks, but we need to get moving on it. … I have attached the form that needs to be filled out on each person.”
We asked what changed.
“He was on board with this goal and directed staff in February to begin the process and referred to the total number of employees in the Sheriff’s Office – 187 employees – and the amount of time that would take,” George Diepenbrock, a spokesperson for the sheriff’s office, said via email in May. “… Once legal counsel later had a chance to review the District Attorney’s policy and we were able to review information from other Kansas jurisdictions, we pursued the joint policy with all other law enforcement agencies in the county.”
Armbrister has not agreed to comply with the DA’s policy. Prosecutors have instead subpoenaed — or formally ordered — him to come to court with officer personnel files in order to testify about whether officers have any potential Brady/Giglio materials in their files.
Leslie Miller, of Stevens & Brand LLP, counsel for the sheriff’s office, filed a motion Sunday seeking to quash subpoenas asking Armbrister and Simmons to bring two personnel files to court Monday. Miller wrote that the subpoenas “contain no regard for concepts of relevance, reasonable time to comply and undue burden.”
“The DA’s office should be required to provide strict proof of any valid basis for this request other than harassment and intimidation,” the motion continued.
Seiden said that material contained in the personnel files “could certainly be relevant to the issue of whether that material must be disclosed to the defense.”
“To the extent that Mr. Armbrister feels ‘harassed’ or ‘intimidated,’ then that only underscores his misunderstanding of the judicial process,” Seiden continued. “We are here and available to educate Mr. Armbrister and his counsel on the State’s legal obligations.”
Regarding the argument that the subpoenas place an undue burden, “This office disagrees that either completing an 11-question checklist or showing up for court when you work in the same building constitutes undue burden,” Seiden said.
The DA’s office has said since their policy and checklist were finalized that they would not compromise on them. But Armbrister said he believes the DGSO policy, which the other agencies also adopted, strikes the right balance to commit to complying with Brady/Giglio standards while also protecting confidential personnel information that wouldn’t be material to a pending case.
“During my time in office as Sheriff, I have demonstrated my commitment to complying with Brady-Giglio and holding DGSO employees to the highest standards, which the community demands,” Armbrister said in emailed responses Thursday. “We have a robust system to vet allegations, and if there is a substantiated finding or even a finding short of a full exoneration, we would agree that information would be ‘material’ information that would need to be provided to the DA and have done so numerous times since taking office.”
He and Miller raised other concerns about the DA’s Brady/Giglio checklists and policy in emails as well as during a court hearing on Monday.
‘Allegations’ versus ‘findings’
A point of contention for the sheriff’s office is that the DA’s checklist includes that “allegations” of misconduct, rather than “findings,” should be disclosed to prosecutors.
That came up in court Monday. Armbrister said that someone could accuse him of parking his giraffe on the wrong side of the road, “and it would show up (on the checklist) no different than if I had actually done something unethical or in real life,” according to a hearing transcript.
“I believe that the District Attorney’s Office has a fundamental lack of understanding of what Brady and Giglio actually is,” Armbrister told Judge Sally Pokorny. “… (Mistakes) do not fall under Brady Giglio. Untruthfulness and nefarious behavior do, and we, since taking over as the Sheriff, I have handed the District Attorney’s Office every bad cop or bad instance in our agency. They like to say that we have been bad at doing these things. That is just not true.”
We asked what concerns the sheriff’s office has regarding their personnel or the DA’s office differentiating between allegations and findings that would need to be disclosed.
“The District Attorney’s own policy states ‘Allegations made against this individual that have not been substantiated, are not credible, or have resulted in exoneration, are generally not considered to be potential impeachment information,’” Diepenbrock and Miller said via email Thursday. “This is fair and accurate, and we agree with it. We simply believe findings of misconduct are definitely impeachment information, but NOT until an allegation has been vetted and investigated and either partially or wholly substantiated.”
But prosecutors have dismissed at least one Douglas County District Court case in which an allegation of an officer being untruthful was not disclosed to the defense — rather, the defense attorney found out about the allegation through a fellow defense attorney. LPD had cleared the officer after an investigation, but the judge in the case ruled that the allegation of dishonesty should have been disclosed to defense counsel.
“The root of this whole situation with him (the officer) was unsustained allegations that were not disclosed,” Seiden said in court Monday, according to the hearing transcript, of the case that was dismissed before Valdez took office.
“That was what resulted in the dismissal of the case in District Court and that is what (led) to a lot of things happening afterwards,” Seiden said. “So some of these allegations, there are things we have to disclose at times in this District Court that hadn’t been found before, that unsustained allegations of dishonesty are things that we should disclose.”
Pokorny responded that she “would like some case law on that.”
Via email this week, Seiden said that for purposes of disclosure, “it is irrelevant to this office whether an allegation results in a finding.”
“Unsustained allegations may still constitute impeachment material under Brady, Giglio, or both,” Seiden said. “The State has an affirmative duty to ferret out this material under both federal and state constitutional law. The court’s role is to determine admissibility of any such material.”
Personnel files: Open records?
Miller said in court Monday, according to the transcript, that “once a personnel file is turned over, it becomes open to Kansas Open Records Act; and therefore, my client and all law enforcement agencies that I have encountered in this specific issue are concerned about retaining and recruiting employees because their personnel file is open to the District Attorney’s Office and perhaps the public.”
If the DA’s office were to take physical possession of an officer’s personnel file, it would become a record under the office’s control, subject to Kansas Open Records Act (KORA) requests from members of the public. However, state law contains numerous exemptions of records that are not required to be disclosed. Two of those exemptions: personnel files and criminal investigation records.
If the answer to a question on the DA’s Brady/Giglio checklist is “yes,” Valdez and Seiden would review personnel materials “on site at the respective law enforcement agencies, as we prefer not to come into possession of those materials,” Seiden said.
Seiden said the DA’s office’s position is that the information would need to be disclosed to defense attorneys under state criminal procedure statutes, but it would not be subject to KORA.
“In the event that we do come into possession of personnel materials that must be disseminated to the defense, then we request that the court enter a protective order,” he said. “Protective orders are routine when it comes to items such as medical or psychiatric records.”
Miller and Diepenbrock wrote that “While the parties could obtain a protective order, it’s ultimately up to the Judge to grant it. And while KORA might provide for closure of the records under the personnel file and/or criminal investigation record exemptions, those are discretionary exemptions. They do not require mandatory closure of the records.”
And yes, the sheriff’s office is concerned that the DA’s office would make personnel materials available to members of the public who filed open record requests, they said.
Miller and Diepenbrock wrote that the completed Brady/Giglio checklists themselves would be subject to KORA, and that they had already received an open record request for the checklists — including one from Max Kautsch, attorney and president of the Kansas Coalition for Open Government.
But Kautsch said he got an answer in response that he wasn’t expecting:
“The Douglas County Sheriff’s Office does not have any records responsive to your request,” Lt. Rich Qualls wrote in an email back to Kautsch on March 31. “By way of explanation, the Brady/Giglio policy published by the Douglas County District Attorney’s Office is not binding on the DGSO; it has not been adopted by the DGSO so is not part of DGSO policy.”
The KORA request was to establish whether area law enforcement was following the DA’s Brady/Giglio policy, Kautsch said. He said the checklists are most likely personnel records that would be exempt from disclosure under KORA — and he expected that his request would be denied on that basis.
“But such denials would have proved that the policy was being followed,” he said. “… Any suggestion that my request, or any other request KORA for completed checklists, would result in the SO being required to disclose that information is not representative of a reasonably likely outcome under ordinary application of the law.”
“My follow up on this issue had nothing to do with obtaining the completed checklists. It had everything to do with questioning why the policy was being ignored,” Kautsch said. “I never had, and still don’t have, any interest in those completed checklists. It’s the defense attorneys who need those checklists, not the public. The issue was simply whether the policy was being followed.”
‘Shared goal of community safety’
On the other side of town, Lawrence police are now “diligently working toward coming into full compliance” with the DA’s policy, Seiden said.
He said Lockhart told Valdez in July that LPD would begin completing the checklists from the DA’s office, following “several productive meetings” between Valdez, Lockhart, Seiden and LPD Deputy Chief Adam Heffley.
The DA’s office, however, last month sent Lockhart subpoenas that would have required him to come to court during dozens of upcoming hearings in criminal cases with the personnel files of more than 50 Lawrence police officers. The city on Thursday, Sept. 22 filed a global motion in all the cases to quash the subpoenas.
Seiden said there was “some miscommunication as to the manner and priority in which the checklists would be completed,” but LPD and the DA’s office had resolved the issues prior to a hearing the following Monday.
Now, “Both offices are working in a collaborative manner to complete and review the checklists,” Seiden said. “Both offices saw the value in keeping the lines of communication open given our shared goal of community safety.”
We reached out to LPD to find out if they generally agreed with Seiden’s account, to clarify what had happened between the Sept. 22 global motion and the resolution in the following days, and to ask whether the uniform law enforcement Brady/Giglio policy is still in use for LPD.
“I talked to the Chief about this and he said that because the issues have been resolved, he sees no reason for further discussion,” Laura McCabe, a spokesperson for the Lawrence Police Department, said via email Thursday.
Eudora police had completed the checklists before the law enforcement agencies adopted their own policy. Leaders with the Kansas Bureau of Investigation and Kansas Highway Patrol have also said they would comply with “whatever checklist this office requires,” Seiden said.
So far, the DA’s office has no new concerns about any current law enforcement employees, Seiden said.
“Based upon the completed checklists we have received thus far, there are no additional law enforcement officers from whom we would not accept probable cause affidavits or sworn testimony,” he said.
Seiden said the DA’s office has not received any completed checklists from Baldwin City or KU police.
In court Monday, the sheriff’s and DA’s offices set a hearing on these issues for Dec. 27 in Pokorny’s courtroom.
“We will continue with whatever legal means we deem necessary to meet our Brady and Giglio obligations and will be present for the December 27, 2022 hearing,” Seiden said. “At this time, it is unclear as to what will occur at that hearing or what the result will be, as the judges are not bound by each other’s rulings.”
In the meantime, Seiden said the DA’s office has not made any requests to delay any hearings or trials based on not having access to checklists and personnel materials from DGSO, nor do they anticipate doing so.
“We expect the Undersheriff and Mr. Armbrister to either come into compliance or continue honoring their subpoenas,” Seiden said.
As of Thursday, “The Sheriff and Undersheriff as of right now have six subpoenas still pending, including four separate trials on Oct. 17 in four separate court rooms at the same time,” Diepenbrock and Miller wrote.
Jon Abel, associate professor at UC Hastings College of the Law, authored 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. We sought his perspective on this issue back in April.
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,” Abel told us.
“They’re not even using taxpayer money well — they’re spending their time fighting each other,” he said. “These two institutions really do need to get along and find a constitutional way to resolve their disagreements.”
Asked if the DA’s office would like to share anything else for this article, Seiden responded, “I would just note that despite any disagreements or misunderstandings that may occur from time to time between this office and law enforcement leadership, the District Attorney is extremely supportive of the law enforcement officers who make so many sacrifices to keep our community safe. One of the most important policies the District Attorney has is her open door policy for law enforcement officers who wish to discuss their cases with us.”
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