A Lawrence defense attorney is arguing that his client’s case should be dismissed because prosecutors failed to disclose Brady/Giglio information, or information that raises questions about an officer’s credibility and character.
A motions hearing held Wednesday had little to do with the allegations in the case itself. In it, Marcus Antonio Phillips, 32, is charged with aggravated intimidation of a witness or victim, alleged to have occurred in January 2022.
The sole investigator on the case was Breanna Pence, a former deputy with the Douglas County Sheriff’s Office. Pence has been charged with domestic battery in connection with an alleged incident from Oct. 31, 2020, and her employment with DGSO was terminated in May.
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 could generally mean they had withheld exculpatory evidence or that they had fabricated evidence; “Giglio” evidence could 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.
Douglas County Sheriff Jay Armbrister and Douglas County District Attorney Suzanne Valdez have long disagreed about what information the sheriff’s office must disclose to prosecutors. Read more on the background in the articles at this link.
Crimes of domestic violence — or even engaging in conduct that would constitute a misdemeanor crime — can prompt the Kansas Commission on Peace Officers’ Standards and Training (KSCPOST) to suspend, condition or revoke an officer’s certification. But it’s unclear whether an allegation of domestic violence is something that the sheriff’s office would generally report to prosecutors as a potential Brady/Giglio violation, or that prosecutors would then disclose to defense attorneys.
The sheriff’s office’s policy states that their office will disclose “Any criminal convictions, including juvenile convictions, involving acts of dishonesty.” The DA’s policy asks law enforcement to provide a lot of information about officers, including any arrests or convictions, present allegations or complaints of misconduct, and complaints about an officer’s truthfulness and credibility. Prosecutors then determine whether the information is potentially pertinent to a particular case and needs to be turned over to the defense.
Defense attorney Jerry Wells on Wednesday began to question witnesses in support of a motion to dismiss his client’s case, alleging that Phillips’ constitutional rights were violated because Wells was not able to challenge Pence’s credibility during a preliminary hearing in March.
Prosecutors argue that after reviewing the Kansas Bureau of Investigation’s file on Pence, they did not believe there was anything in the file that required disclosure under Brady or Giglio.
However, “Because the Douglas County Sheriff’s Office does not comply with this office’s Brady/Giglio Policy, the State is not privy to Ms. Pence’s personnel file,” Deputy DA Joshua Seiden wrote in a response. “If any potential impeachment material exists in that file, then any such material is in neither the custody nor the control of the Douglas County District Attorney’s Office.”
Wells subpoenaed Armbrister and Undersheriff Stacy Simmons. Armbrister testified Wednesday, primarily about the timeline of the sheriff’s office’s internal investigation and what happened from there.
Armbrister said DGSO became aware during a separate internal affairs investigation in October or November 2022 that Pence had possibly violated policy. He did not discuss any specifics of the other investigation. Pence then became the subject of another IA investigation, Armbrister said, for possible policy violations dealing with personal conduct, following state statutes and reporting domestic violence. DGSO policy states that “Any employee obtaining, receiving or having knowledge of any criminal act or information of any criminal activity shall immediately report the information to the appropriate division or their Sheriff’s Office supervisor.”
Armbrister said Pence was placed on administrative leave when DGSO became aware of possible criminal misconduct, a few days before Christmas 2022. DGSO asked the Kansas Bureau of Investigation to investigate the criminal case in January 2023.
Specifically regarding potential Brady/Giglio information that he thought might need to be disclosed based on the DA’s policy, Armbrister pointed to “a mental or physical defect that would have reduced the witness’s or investigator’s ability to perceive or remember events correctly,” and “drug or alcohol use at or near the time of the events about which the witness’s or investigator’s testimony relates.”
He said that in the course of the investigation, the sheriff’s office had found that alcohol may have been a factor in the alleged domestic violence incident for which Pence is charged. The affidavit supporting the case against Pence alleges that she drank a fifth of hard liquor during a Halloween party and struck and kicked her romantic partner at the time, who was also a DGSO employee.
Armbrister said he and Simmons decided to inform the DA’s office of the pending investigation and did so on Feb. 9, about a month and a half after Pence was placed on administrative leave. He said Simmons met with Valdez and Seiden to discuss the case. Armbrister was not present for that meeting because he generally does not communicate with the DA’s office.
They met again, along with Armbrister, on Feb. 22, once the KBI had completed its investigation. The prosecutors asked the Johnson County DA’s office to review the case as a special prosecutor, and that office filed a charge against Pence in April. Armbrister testified that one of the prosecutors had said that day that there were a few cases Pence was on that would require disclosure to defense attorneys. He said he believed Seiden had said there was one rape or sex crime case in particular in which they would need to disclose.
The DA’s office called Pence to testify in the preliminary hearing in Phillips’ case on March 22, and the judge bound him over for trial. Wells argued in a motion to dismiss Phillips’ case that he should have been informed of the impeachment evidence on Pence before that hearing.
“The Court’s comments at the preliminary hearing make it evident that the Court’s finding was based on the thinnest of evidence presented by the State via their two witnesses,” the alleged victim and Pence, Wells wrote. “It follows then, that if the credibility of Breanna Pence’s testimony could have been challenged by defense counsel,” the judge would have had to rely upon the testimony of the alleged victim, and there would not have been enough evidence to allow the case to proceed to trial.
“With regard to this matter, Ms. Pence has not been convicted,” Seiden wrote in a response to Wells’ motion. “The offense for which she was being investigated at the time of the preliminary hearing in this matter is much different than the offenses set out by the appellate court in terms of impeachment material. There is nothing known to the State about Ms. Pence that would have required disclosure under Brady, Giglio, or K.S.A. 22-3212.”
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Armbrister said Pence’s employment was not terminated sooner because it was a long-standing practice to allow the process to run its course. Once the KBI investigation wrapped and Pence was charged, DGSO felt like it was time to go back to the administrative internal investigation and bring that to a conclusion, Armbrister said.
Valdez asked the judge for a brief recess to determine whether she should ask someone else in her office to cross-examine Armbrister, because based on his testimony she was concerned she could be a witness in the case, but ultimately she did the cross-examination.
During Valdez’s questioning, they briefly rehashed the backstory that the sheriff had initially agreed to comply with the DA’s Brady/Giglio policy but later changed course and implemented his own policy.
Valdez asked Armbrister about his statement that DGSO policy mandates reporting of domestic violence. She asked whether the Halloween party included many sheriff’s office employees who would have witnessed the alleged domestic violence and also failed to report it when it occurred. Wells and Leslie Miller, counsel for the sheriff’s office, both objected to the question.
Though Seiden’s response to Wells’ motion to dismiss states that the DA’s office is not aware of any impeachment material in Pence’s personnel file because the sheriff’s office will not comply with the DA’s Brady/Giglio policy, Wells wrote that “The case law is clear that a prosecuting attorney cannot argue that the prosecuting attorney was unaware of the Brady/Giglio evidence. The Douglas County District Attorney’s office is an entity and carries the burden of ensuring communication of all relevant information on each case to every lawyer who deals with it, pursuant to Giglio.”
Phillips has also filed some of his own motions, which Judge Amy Hanley said she would not take up since he is represented by counsel.
The hearing is set to conclude on July 24, where Simmons will testify and any other witnesses could be called. The attorneys will argue the motion to dismiss and others.
Afterward, both sides will have about 24 hours to file written findings of fact and conclusions of law, and Hanley will make a ruling before the jury trial set for early August.
Jeff Kratofil, attorney for Pence, said he and his client declined to comment at this time.
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More coverage: Brady/Giglio disclosures
A plea deal Thursday resulted in a Lawrence man being convicted of one misdemeanor, seeing three cases dropped and getting out of jail on time served.
His case was the latest to call attention to an ongoing dispute between the Douglas County sheriff and district attorney.
A judge has ruled that prosecutors did not withhold information that should have been turned over to a defense attorney regarding an ex-deputy accused of violating law and policy. This case, the latest to highlight an ongoing conflict between the DA and the sheriff, leaves some questions lingering.