Douglas County Sheriff Jay Armbrister is “Giglio-impaired” because he mishandled evidence, according to the district attorney’s office. The sheriff disputes the characterization.
A law enforcement officer being “Giglio-impaired” can mean a number of things, but typically, “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. Oftentimes, prosecutors won’t call those officers to testify in front of a jury, because those kinds of issues can come up — and that can lead to guilty defendants walking free, innocent defendants getting convicted, and crime victims getting no justice or closure. The name comes from Giglio v. United States, a landmark U.S. Supreme Court case.
The Douglas County district attorney’s office will call Armbrister to testify as a witness if needed, “but under law we would be required to disclose that his personnel file contains potential impeachment material,” said Deputy DA Joshua Seiden. Impeachment material is that which defense attorneys could use to make a jury question the credibility of a witness.
This comes on the heels of a nearly yearlong dispute over what kind of “Brady/Giglio” information law enforcement agencies need to turn over to prosecutors about each of their employees. Prosecutors must turn certain information over to defense attorneys to protect a defendant’s constitutional right to a fair trial.
A memo that Douglas County District Attorney Suzanne Valdez and Seiden filed recently in a criminal case states that during a meeting on April 4, “The District Attorney further informed Sheriff Armbrister that under the policy, he was Giglio-impaired. Sheriff Armbrister agreed that under the policy, he would be Giglio-impaired.” (See the memo below.)
Armbrister said Wednesday he does not recall that specific conversation, but for the sake of argument, under the DA’s policy — with which he disagrees — he would be Giglio-impaired, “because there has been an allegation of misconduct” against him. “However, there has NEVER been a ‘finding’ of misconduct, and the DA and her Deputy DA cannot understand how these two things are different,” he said via email.
But Seiden said Wednesday that at the crux of the DA’s office’s concerns about Armbrister is what occurred in a 2018 criminal case — and what ultimately led to Armbrister being investigated by an outside agency in 2020. The outside agency found that he had violated department policy, and he had been suspended without pay for five days as a result.
As we’ve reported, in a July 2017 sex crime investigation, Armbrister lost a recording of an interview with the accuser, other material evidence was not collected from the scene, and a search warrant to collect the defendant’s DNA had gone missing.
A judge determined that there was “no evidence of bad faith” by the involved officers and did not dismiss the case, though he wrote in a memorandum that “Attention to detail, careful scene investigation and coordinated follow-up can be fairly characterized here as unimpressive. Even mystifying and confounding.”
Armbrister has publicly addressed what went wrong in the case, including in an October 2020 Facebook post on his campaign page, prior to his election to sheriff in the November 2020 general. (See the post below.)
“However,” Seiden said via email Wednesday, “his (Armbrister’s) post failed to tell the entire story of how he also found an unfiled DNA search warrant and return in the same case in his residential attic. Sheriff Armbrister found the DNA search warrant and return on August 20, 2020 in a ‘large tote’ in his attic from when he cleaned out his desk in ‘early 2018.’”
Armbrister said Wednesday that “While mistakes were made by me (well documented, and I testified to this in open court), there was absolutely no evidence to show I acted in bad faith or with intent to withhold justice from the defendant. I simply made a mistake, and I was counseled and given a fair administrative punishment.” After we sent Seiden’s specific account of the reason for Giglio impairment, George Diepenbrock, a spokesperson for DGSO, said Armbrister stood by his response.
Seiden said that if the DA’s office believed Armbrister had acted with malicious intent with regard to mishandling of the DNA search warrant and return, “we would no longer call him as a witness.”
“He violated departmental policy, was investigated, and ultimately disciplined. He is Giglio-impaired regardless of the absence of malicious intent,” Seiden said. “No malicious intent by the law enforcement officer is required to trigger a disclosure obligation under Giglio and its progeny.”
Seiden went on to say that earlier this year, Armbrister was a witness in a case, and the DA’s office notified the defendant’s counsel that DGSO may possess potential impeachment material on Armbrister. He said Armbrister was “furious” about that notification, and sent a letter forbidding Valdez and Seiden from contacting him directly.
“Our disclosure would be made in light of Sheriff Armbrister’s public statements regarding his admitted violation of departmental policy and subsequent suspension,” Seiden said. He said the DA’s office’s review of the sex crime case supports Armbrister’s public statements “regarding his own mishandling of evidence.”
“To be clear, the District Attorney’s Office has not reviewed Sheriff Armbrister’s personnel file. If he is willing to make his personnel file available for our review, we would be in a better position to more thoroughly assess Sheriff Armbrister’s Giglio status,” Seiden said.
Judge’s order
The ongoing dispute is rooted in dueling policies of the DA’s office and law enforcement about personnel files with regard to officer integrity issues. Perhaps not surprisingly, the DA’s office and sheriff have conflicting views of a judge’s recent order on the matter.
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, for instance.
In the time since, the Lawrence Police Department has agreed to comply with the DA’s checklist and continues to provide updated checklists, Seiden said, but the sheriff’s office and other area law enforcement agencies have not.
The DA’s office has also sought to review information in personnel files that may be pertinent for Brady/Giglio disclosures if an answer to one of the checklist questions is yes; “Even then, the District Attorney’s review would be confined to the specific personnel materials that resulted in a ‘yes’ answer. Thus, the District Attorney is not demanding unfettered access to personnel materials,” Seiden and Valdez wrote in their recent memo. “Even when the District Attorney reviews personnel materials for potential impeachment value, that review occurs on the premises of the respective law enforcement agency. Unless otherwise ordered by the Court, the District Attorney does not remove or otherwise retain copies of any law enforcement personnel materials.”
Prosecutors had subpoenaed — or formally ordered — Armbrister to come to court with officer personnel files in order to testify about whether officers have any potential Brady/Giglio materials in their files.
In one case, the judge heard arguments in October from prosecutors and the sheriff’s office and counsel about the policy and checklist.
Douglas County District Court Judge Sally Pokorny wrote last week in an order on the dispute that “In Kansas, the request for Brady/Giglio evidence from the prosecutor to law enforcement is based on trust. The Court cannot force one executive branch to trust another executive branch.” (See the order below.)
“Additionally, as a practical matter, the Court does not have the time to scour personnel files and the entire investigative files to search for Brady/Giglio evidence. How would the Court, without intimate knowledge of the case, know what evidence is exculpatory or impeachment evidence? The ability to determine that lies with law enforcement and the prosecutors.”
The order states that Kansas has no statutes outlining procedures for the DA and law enforcement to work together to discover Brady/Giglio material, and “The guidance from other jurisdiction encourages the prosecution and defense to work together to fulfill the mandate of Brady/Giglio.”
In an Alaska case, the order states, “the Court found personnel files are confidential (as they are in Kansas), and held law enforcement could do the investigatory work for the prosecution,” and in a Pennsylvania case, “the Court found that because the prosecution had sent Giglio requests to law enforcement and received no impeachment evidence in return, the prosecution had met its duty and was not required to personally inspect the files.”
Pokorny’s order concluded that “The Court will no longer be placed in the middle of this disagreement.”
Armbrister said the sheriff’s office will follow the judge’s ruling, “which we view as giving us clarity and validation under the current Brady-Giglio policy developed jointly with other law enforcement agencies in April. This policy outlines when the Sheriff’s Office will engage conversations with prosecutors on potential Brady-Giglio issues with any employees, as we have done when pertinent.”
Seiden said the ruling has no impact on the DA’s office’s implementation or enforcement of its Brady/Giglio policy, “as we will continue to work with our law enforcement partners to meet our duty of disclosure of potential impeachment material.”
Asked Wednesday what else he wants our readers to know about these latest developments, Armbrister said, “In the nearly two years since taking office, I have steadfastly worked to root out and remove compromised law enforcement officers, and I will not stop doing that. Integrity is something this community demands of us, and it is something I demand of myself and this agency. Therefore, we will work to never undermine the trust this community has placed in us.”
Rippling impact?
What does all of this mean for Douglas County’s criminal legal system?
“The mechanism for raising officer credibility has been laid bare by the district attorney’s office,” said Max Kautsch, a Lawrence attorney and president of the Kansas Coalition for Open Government. “It remains to be seen to what extent these issues will impair prosecutions in this jurisdiction going forward.”
Beth Cateforis is a clinical professor of law at the University of Kansas and supervising attorney for the Paul E. Wilson Project for Innocence & Post-Conviction Remedies.
“Every defense attorney in Douglas County should be following what’s going on in this conversation between the sheriff and the district attorney’s office, and thinking and considering whether it affects their client’s case,” Cateforis said. “… If you have a client whose case was processed through the sheriff’s office, then you need to be aware of that.”
Cateforis said it wouldn’t be an uncommon tactic of defense attorneys to subpoena an agency head to testify in front of a jury, so they can challenge investigatory techniques or policies. But those kinds of calls would be made on a case-by-case basis, and based on the specific facts of a case.
“If it’s apropos and relevant in their case, sure, they should make that decision,” Cateforis said. “But there also could be cases where you don’t want to put that in front of the jury; that’s not something that would be helpful to your client, to be combative in that kind of way.”
Seiden said it is difficult to speculate as to how an agency would be affected internally by a Giglio-impaired policymaker. He said that to date, the DA’s office has not received any completed Brady/Giglio checklists for any of the heads of local law enforcement agencies.
“With the exception of the sheriff, who is elected, the heads of the local law enforcement agencies are selected and supervised by their respective governing bodies,” Seiden said. “We have to assume that those who select and supervise the heads of the local law enforcement agencies are conducting their due diligence, but the District Attorney’s Office is not a part of that process.”
Though many questions are yet to be answered and many issues yet to be resolved, the developments over the past year have brought some of these complex legal questions out of the darkness. Historically, the DA’s office didn’t even have a Brady/Giglio policy until the current administration finalized theirs in January.
”The upshot of all this is that it’s inspired the Brady discussion in the light of day in Douglas County,” Kautsch said.
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Valdez and Seiden’s memo:
20221221-DA-memo-Brady-Giglio-rArmbrister’s Oct. 18. 2020 Facebook post:
20201018-Armbrister-Facebook-postJudge Pokorny’s order:
20221220-Pokorny-ruling
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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