Two of Douglas County’s top law enforcement officials have reached an agreement following a long dispute over access to information contained in deputies’ personnel files.
District Attorney Suzanne Valdez and prosecutors in her office have regularly issued subpoenas for Sheriff Jay Armbrister and Undersheriff Stacy Simmons to appear in court anytime a Douglas County Sheriff’s Office employee is going to testify.
The DA’s office started doing so because Armbrister would not comply with part of the DA’s policy that lays out what information about law enforcement officers’ conduct agencies need to provide to her office. Armbrister had argued that Valdez’s policy was overreaching and asked for more information than what the law and court case precedents require.
The DA’s Brady-Giglio policy pertains to information that prosecutors may need to disclose to defense counsel in criminal cases in order to ensure that a defendant’s constitutional right to a fair trial is upheld.
What’s Brady-Giglio? Click here to read a quick explainer
Law enforcement officers who are 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.
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. (Incidents involving these kinds of misconduct can be, and often are, career-ending for officers.)
All of this information could be critical to a defendant getting a fair trial. When there are violations, it can lead to cases getting dismissed, convictions getting overturned, and/or innocent defendants getting wrongly convicted.
The disagreement has been long, public and tense, at times.
Armbrister had sought legal counsel to assist DGSO, and the issue has been the subject of numerous hearings in criminal cases over the past year and a half or so. A specific point of contention for the sheriff’s office is that the DA’s checklist for what should be disclosed to prosecutors includes “allegations” of misconduct, rather than “findings” of misconduct. (Read more about that in this article.)
Prosecutors were issuing Armbrister and Simmons subpoenas to bring the confidential personnel files to court to testify regarding employees’ conduct, meaning one of them may have to wait outside courtrooms during hearings until they were called to the witness stand or released from their subpoenas.
Leslie Miller, counsel for DGSO, had filed motions to quash subpoenas in some cases, writing that they “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.”
Regarding that argument, “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,” Deputy District Attorney Joshua Seiden said in an email interview last year.
In April, Douglas County District Judge Sally Pokorny said if the issue came up again, she may find that the DA should pay for Miller’s time to appear in court and file a motion to quash the subpoenas.
An agreement between the offices has helped to simplify the process.
Undersheriff Stacy Simmons
Deputy DA Joshua Seiden
Judge Sally PokornyPokorny said during the April hearing that the DA’s office should have documentation of asking the sheriff’s office for Brady-Giglio material in cases.
“If the response from the sheriff is, ‘I have nothing,’ you have satisfied your obligation, as it stands in Kansas, under Brady Giglio,” Pokorny said, according to a court transcript, and “if you just follow that going forward, I think that should solve all future cases.”
Valdez wrote in a letter to the sheriff’s office in May: “Rather than exhaust District Attorney and court resources to spar with you and your counsel over your refusal to comply with my Brady/Giglio policy and checklist, we will use a different approach to meeting the State’s constitutional obligations.”
With the agreed-upon system, prosecutors are still issuing Armbrister and Simmons subpoenas. However, Simmons each week sends an email to the DA’s office to confirm that she has reviewed personnel files of any DGSO employees who are set to testify during court the following week.
In one such recent email Armbrister provided as an example, Simmons listed the dates, times, court divisions and defendants’ names for hearings at which DGSO personnel were expected to testify. There were five hearings and seven DGSO employees named, and Simmons wrote “We have no Brady or Giglio material on” each of them.
“Based upon your representations below, you and the sheriff are released from the State’s subpoenas for those hearings,” Seiden wrote in response.
The solution isn’t perfect, and the DA’s office continuing to issue subpoenas for hearings that involve DGSO employees may raise questions for defense attorneys who are not aware of the arrangement and may be expecting a chance to cross-examine the sheriff or undersheriff. But Armbrister and Valdez’s office both said they believe they’re meeting their constitutional obligations.
“We are confident that this office is meeting its obligations with respect to making diligent efforts to ferret out any potential Brady or Giglio material,” Cheryl Cadue, a spokesperson for the DA’s office, said via email. “While we continue to work with our law enforcement partners as to logistical issues, we have remained firm in our commitment to meeting our constitutional and statutory obligations.”
Armbrister said DGSO had offered to provide a list of all files that he and Simmons had reviewed and found no Brady or Giglio material, but “this was not acceptable in their eyes.”
“Their burden is met when they ask us if any potential evidence exists and we answer them which is what we have done from the very beginning,” Armbrister said. “So much so that we even brought incidents that were both clearly and possibly potential B-G information and in those cases, we came to agreements with the DA and proceeded accordingly. This has never been about ‘hiding’ bad employees as the DA has suggested numerous times.”
Prior to the agreement, Armbrister had also filed a complaint against Valdez with the Office of the Disciplinary Administrator about a few issues, including the repeated subpoenas.
Review committee members recommended the complaint be dismissed, but they were concerned with some aspects of Valdez’s conduct and “directed that she be cautioned.”
Matthew J. Vogelsberg, chief deputy disciplinary administrator, wrote in a response to Armbrister that “Unless the district attorney’s office has a legitimate reason to subpoena you and the undersheriff (e.g. your office refuses to disclose information outside of court about whether a deputy has a Giglio issue), subpoenaing you and the undersheriff in every criminal case involving the sheriff’s office seems excessive and could constitute a violation of KRPC 4.4(a) (‘In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.’).”
Vogelsberg also wrote that if Armbrister believes Valdez is abusing her office’s subpoena powers, “you can seek to quash any subpoenas you believe are abusive and request that Ms. Valdez and/or her office be sanctioned. See K.S.A. 60-245(c). Accordingly, the committee members believe that whether Ms. Valdez is abusing her office’s subpoena powers should be first addressed by the district court before it is raised in a disciplinary complaint to the ODA.”
An unrelated complaint against Valdez is still pending. Read more about that in the articles at this link.
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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.
