A judge ruled Wednesday that prosecutors did not withhold information that should have been turned over to a defense attorney regarding a former Douglas County sheriff’s deputy accused of violating law and policy.
The case is the latest to highlight an ongoing conflict between the district attorney and the sheriff.
Evidence presented during multiple hearings on defense attorney Jerry Wells’ motion left some lingering questions regarding investigations into other DGSO personnel as well as how prosecutors and law enforcement will work together moving forward.
Not a Giglio violation, judge rules
In the case, Marcus Antonio Phillips, 32, is charged with aggravated intimidation of a witness or victim, alleged to have occurred in January 2022. The case will proceed to a jury trial next week.
The sole investigator on the case was Breanna Pence, a former DGSO deputy. Pence was charged with domestic battery in connection with an alleged incident from Oct. 31, 2020, and her employment with DGSO was terminated in May. She was ultimately granted a diversion, and if she successfully completes her one-year diversion agreement, she can avoid prosecution for the case.
Wells filed 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. He argued that prosecutors had withheld “Brady/Giglio” information, or that which could have raised questions about the officer’s veracity and potentially been exculpatory for his client.
Douglas County District Attorney Suzanne Valdez and Douglas County Sheriff Jay Armbrister have long been embroiled in a conflict over policies about what personnel information DGSO turns over to the DA’s office. Read more about the background in this case in this article from June, and about the ongoing issue in the articles at lawrencekstimes.com/crime-courts/bg.
Armbrister testified that Pence had been the subject of an internal investigation 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.”
It was more than two years after the Oct. 31, 2020 incident before it came to light. That policy violation was at the crux of Wells’ argument that Pence had acted dishonestly by not self-reporting the domestic violence.
Douglas County District Court Judge Amy Hanley presided over Phillips’ preliminary hearing as well as the hearings on Wells’ motions, which also included testimony from Undersheriff Stacy Simmons and Deputy District Attorney Joshua Seiden.
“This court does not necessarily agree that failure to comply with a policy requiring self-reporting is the same as dishonesty,” Hanley said. As an example, Hanley said showing up late to work could be a violation of policy, but it doesn’t go toward dishonesty unless you lie about showing up late.
DGSO had asked the Kansas Bureau of Investigation to take over the criminal investigation when the internal affairs investigation found that Pence might have violated the law.
Armbrister said that in the course of the internal investigation, the sheriff’s office had found that alcohol may have been a factor in the alleged domestic violence incident for which Pence was charged. The KBI affidavit supporting the case against Pence alleged 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.
Specifically regarding potential Brady/Giglio information that he thought might need to be disclosed based on the DA’s policy, he had 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.”
Hanley said Wednesday that none of the testimony she heard indicated that Pence had issues with alcohol that would have impaired her memory in Phillips’ case. She also said there was no indication that Pence had been dishonest in the KBI investigation into the domestic battery case.
Wells had argued in his motion that Phillips was denied his constitutional right to a fair trial because he had not had information about investigations into Pence’s conduct before the March hearing when Hanley bound Phillips over for trial. But without any evidence of memory loss due to alcohol in this specific case, Hanley said she wasn’t sure she would even find that cross-examination was relevant for the probable cause standard of proof the prosecutors had to meet in the preliminary hearing.
Also, Hanley said the case did not rely solely on Pence’s memory — there was also video that could show if she was being dishonest or if her testimony was inaccurate. She also noted that Seiden had testified that he was not aware of any case law in which an allegation of domestic battery could be used as impeachment material.
Lingering questions
Multiple times during the motions hearings, issues involving other sheriff’s office personnel were mentioned.
Armbrister and Simmons testified that DGSO launched the internal affairs investigation into Pence’s conduct because it had come up in another IA investigation. No details about that investigation, nor who was involved, were discussed in court.
In addition, multiple employees and now-former employees of DGSO were in attendance at the Halloween party where the incident involving Pence and her ex occurred. Some of them were interviewed by the KBI, according to the affidavit in the case.
Hanley sustained objections from Wells and Leslie Miller, attorney for the sheriff’s office, when Valdez had raised questions about the other employees who had witnessed the incident. It was unclear whether any of those employees had also been investigated for policy violation for not reporting domestic battery.
Asked to address those issues after the hearing, DGSO said in a statement via email, “We are fully aware of all evidence and facts from these internal and external investigations, and due to this being an internal matter, we will not make any comments on it.”
Seiden said the issues were “inherently concerning, but it explains why Sheriff Armbrister has been so reluctant to comply with the District Attorney’s Brady/Giglio policy.”
“We have received no information on any of those other employees who are alleged to have been present. According to the testimony of Sheriff Armbrister and Undersheriff Stacy Simmons, those employees would be in violation of both DGSO policy and state statute for failure to report an incident of domestic violence,” Seiden said via email.
He also pointed to the timeline of the investigation that had emerged in Simmons’ testimony: The IA investigation into Pence began on Dec. 12, 2022, and she was placed on administrative leave on Dec. 23. But just days prior, on Dec. 10, the sheriff’s office had posted a photo of Armbrister and Simmons presenting Pence with an award for her exemplary service, Seiden said.
“It appears that Sheriff Armbrister is happy to make an example of Ms. Pence whenever and however he believes it serves his interests,” Seiden said. “How many male DGSO employees have been internally disciplined and either reassigned to positions in which they would never be called upon to testify or allowed to retire quietly? Leslie Miller, the Sheriff’s legal counsel for many years, may have the answers. We only know what Sheriff Armbrister wants us to know.”
Moving forward
Wells said after the hearing that the court’s decision was clear, and he didn’t have anything to add.
The sheriff’s office responded that “We are supportive of Judge Hanley’s decision and know that justice is best served when all parties are following the law and the victim has an opportunity to seek justice in the court of law.”
Hanley mentioned in her ruling that she heard testimony regarding law enforcement and the DA’s office discussing Brady/Giglio matters “just as they should,” and determining what needs to be disclosed to defense attorneys.
“As we have stated previously and based on our policy, we continue to bring any and all situations that could potentially be Brady/Giglio issues to the DA’s Office, and we think this case and the evidence presented shows our commitment to doing exactly that,” DGSO’s statement said. “We learned of a potential issue, brought it to the DA’s Office, they made a determination (without informing us), and we used every means necessary to ensure justice was being served and that all statutory and legal standards and obligations are met.
“We also are happy to have the DA’s Office on the record agreeing that an allegation of misconduct does not rise to the level of Brady/Giglio and that their standard for these issues is in line with nearly all courts and laws: There needs to be a FINDING of misconduct that goes towards the truth or veracity of the witness in order to pursue a Brady/Giglio review of a specific witness,” the statement continued, referencing one of the key issues in the long-running policy dispute between the two offices. (Read more about that in this article.)
“And lastly, we stand behind our long-held stance that the subpoenas for us to appear personally with personnel files to all cases involving DGSO deputies is purely for harassment and/or vindictive purposes on the part of the DA,” the statement continued. “In Deputy DA Seiden’s testimony, he stated somewhere between that discussion on Feb. 22 and the Preliminary Hearing on Mar. 22, he had made the determination that there were NO Brady/Giglio issues with Deputy Pence. However, the Sheriff and Undersheriff were left under subpoena to appear with the personnel file, even though they determined the issues they were being compelled to appear for was no longer an issue, as per testimony on this motion.”
Seiden said the DA’s office believes the court made the appropriate ruling.
“It was surreal to be testifying in a hearing in which the crime is alleged to have occurred in the Douglas County Correctional Facility, and then I see Sheriff Armbrister and his attorney Leslie Miller sitting in support of the defendant,” Seiden said via email. “While Sheriff Armbrister was happy to appear on the defense subpoena, Ms. Miller has filed motions to quash the State’s subpoenas on many occasions. This is odd given that we are the agency prosecuting cases investigated and referred by DGSO.”
Seiden said the DA’s office continues to stand behind its Brady/Giglio policy.
“While compliance with the prevailing law is non-negotiable, we have been working with the local law enforcement agencies as to the procedure by which each agency provides us with potential Brady and Giglio material,” he said. “With respect to procedure, we are willing to work with each agency based upon their specific needs so long as we are still able to meet our disclosure requirements.”
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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark@lawrencekstimes.com. Read more of her work for the Times here. Check out her staff bio here.
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