TOPEKA — Derogatory public statements by the district attorney have altered Douglas County’s criminal legal system from March 2021 forward, according to testimony in the DA’s disciplinary hearing Monday.
The hearing has shed more light on the context and fallout in the nearly three years since DA Suzanne Valdez, then newly elected, made comments that called into question the integrity of Douglas County District Court’s chief judge.
The disciplinary panel heard from two judges and some attorneys Monday, the first day of Valdez’s disciplinary hearing.
The primary issues at the heart of the hearings are the public and private communications Valdez made about or to Chief Judge James McCabria: press releases, a Facebook post and some text messages. The panel of three attorneys must determine whether they believe Valdez violated four professional rules of conduct.
In his opening statement, Valdez’s attorney, Stephen Angermayer, said Valdez was apologetic for having to be there, “not because there might be a hammer,” but because she regretted her behavior. He told panelists that they would hear from her. She did not testify on Monday but still may on Tuesday or Wednesday.
Background
When COVID-19 hit, it essentially brought the courts to a standstill. Though hearings picked up and virtual options made it safe from a health standpoint, jury trials — where, before the pandemic, dozens of people would be crowded into rooms during jury selection — had not yet resumed.
The Kansas Supreme Court launched an ad hoc committee to formulate protocols for each court in Kansas to safely resume trials, to both uphold the constitutional right to a speedy trial and to protect public health. Douglas County District Judge Amy Hanley chaired that committee, which issued a 50-page report as well as resources on July 31, 2020.
Each district court was tasked with creating a plan to resume trials. Douglas County District Court employees and other county staff members had come up with a plan to try cases at the Douglas County Fairgrounds, where jurors would be able to safely distance from each other. The Kansas Supreme Court approved Douglas County’s plan on Oct. 30, 2020.
In the interim, on Aug. 4, 2020, Valdez won the Democratic primary election, making her the presumptive next district attorney because she faced no Republican challenger.
In November and December, the court prepared space at the fairgrounds and held an open house on Dec. 17 and 18, 2020. Numerous members of the Douglas County bar attended, and there was not much feedback about the plan, according to testimony Monday. Valdez had attended the open house and later texted an attorney who was going to join her staff that she thought the space would work.
McCabria announced in a news release March 18, 2021 that jury trials would resume the following month.
“We’ve consulted with all of the stakeholders, we’ve sought guidance from health experts throughout the pandemic, and we are confident that whether a trial occurs at the judicial center or at the fairgrounds, this district is fully capable of resuming this important function for the community,” McCabria said at the time in a news release from the county.
That news release quoted representatives of the sheriff’s office and public health officials.
McCabria testified Monday that the release was intended to assure the public that they would be safe from both health and security perspectives when they were summoned as jurors. He said he did not intend to address whether attorneys were ready to proceed to trial.
Valdez, however, “took it upon herself in her press release to say ‘I’m a stakeholder, and you did not consult me,’” McCabria testified. (See the full statements in this March 2021 article.)
Her office issued a statement saying that she was not consulted about that decision, she had concerns about the safety and security of the fairgrounds buildings, and “To suggest that he (McCabria) and I met personally or consulted about the jury trial plan, or that he invited or asked for my or my office’s input is simply false. … Unfortunately, this is yet another example of how an outspoken and honest woman is mischaracterized as untruthful by a male in power.”
McCabria responded by sharing an email outlining his perspective of meetings that had occurred over the past few months regarding the jury trial plans.
Valdez wrote in text messages to McCabria on March 22, 2021, “You should be ashamed of yourself. We were TOLD, not consulted. The only reason you commented is because I am a Hispanic female (in) a position of power. … I will shine the light of truth on everything.”
Valdez also shared the press release from the district attorney’s office’s Facebook page to her personal page, which was public, with the message, “Women of the world- be prepared! If you are hardworking, outspoken, honest, AND in a position of authority, the INSECURE MAN will try to tear you down. Not me, says I!!”
Valdez also referred to McCabria as “sexist” in an email to the Office of the Disciplinary Administrator.
McCabria testified that he didn’t make a formal complaint to the ODA, but he did share what had happened. The office was already aware and had begun an investigation.
Hearing begins
McCabria testified Monday that Valdez’s press releases stating that neither she nor her office were consulted about the jury trial plan were false.
McCabria said he and the other judges felt that the integrity of the court was under attack. When special prosecutor Kimberly Bonifas asked whether the other judges were upset by the statements, he said “That is a mild characterization.”
The previous administration had input on the fairgrounds plan as it was in progress, McCabria said, and he shared details about meetings with Valdez and her staff once she had taken office.
Angermayer said Monday that before Valdez was sworn in on Jan. 11, 2021, she was not given access to the office or its case files. McCabria said he vaguely remembered some discussion of that issue in September 2020, and he remembered being “a little disappointed” that then-outgoing Douglas County District Attorney Charles Branson wasn’t being more collaborative, though he decided not to speak to him about it.
Branson has not been asked to testify in the case and said via email Monday that he “will only provide very limited comments for that reason.”
“Mrs Valdez was allowed in the office before she was sworn in and she was also working closely with deputy district attorney David Melton to assure a smooth transition,” he said. “All of the cases in the office were staffed by qualified and experienced attorneys before she was sworn in and directly after.”
Asked to clarify whether Valdez had access to any case files, Branson said “She would’ve had access to any particular case file through David Melton. I do not recall the particulars.”
McCabria spoke about two meetings with Valdez, Deputy DA Joshua Seiden, and Melton. The first was in February 2021. He said Melton did most of the talking in that meeting and said the office was not ready for jury trials. He asked that any trials scheduled for March 2021 be continued. McCabria granted that request and issued an administrative order continuing those trials.
The second meeting was in March 2021, and Judge Hanley was also in attendance. At that meeting, Valdez shared concerns about the safety and security of the fairgrounds building and asked again for all the jury trials scheduled in April to be continued, McCabria said.
That was the first time Valdez had raised such concerns, and “that seemed manufactured to me,” he said.
Hanley said she kept looking to McCabria to see if he was going to get up and walk out of that meeting because she could not believe the way Valdez was “talking at” them for about 15 minutes straight.
Hanley said she felt as though the prosecutors hadn’t read the jury trial plan, which had answers for all of the health and safety concerns they raised. It also addressed issues with the confrontation clause, meaning a defendant’s right to look witnesses testifying against them in the face, amid masking.
During that meeting, McCabria and Hanley testified, Valdez said something to the effect of “We just won’t show up.”
Hanley said that immediately raised big concerns for her because the first trial set in April 2021 was in an attempted murder case, and she might have to dismiss the case if prosecutors didn’t show up for the trial. She started taking notes at that point because she felt they might be important down the road.
McCabria did not grant that block continuance request, but the DA’s office and defense attorneys were still able to request continuances from the judges presiding over individual cases that were scheduled for trials.
The second meeting was a couple of weeks before McCabria’s announcement that jury trials would resume and the DA’s public response.
Hanley said she told McCabria that if he didn’t alert the disciplinary administrator about that conduct, she would.
Former employees
Former chief assistant DA Eve Kemple testified that she loved her job with the DA’s office for more than 16 years. Valdez’s conduct toward McCabria “was the sole instigating reason” that she left, she said.
Valdez’s remarks did not end with the public statements, Kemple testified.
Kemple described once being called into Valdez’s office, and Valdez was saying “many negative things” about McCabria. Kemple said she told Valdez that she may not agree with everything McCabria does, but he’s a good person. She said Valdez jumped up, slammed her hands down on her desk, leaned forward and yelled, “No, he’s not. He filed an ethical complaint against me.” Kemple said Valdez kept yelling, but she “sort of shut down” and can’t say what else she said, because that was “sort of the trigger point for me.”
Angermayer asked Kemple if she timed her departure from the office so that she would have health insurance until she started her new job in the state attorney general’s office. Kemple said her insurance through Douglas County was to continue through the end of the month, and “That had nothing to do with Ms. Valdez.”
Attorney Emily Hartz said she joined the DA’s staff when Valdez took office in January 2021 and was there for about seven months, until early August, 2021. She first knew Valdez as a fellow parent because their kids had been friends.
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She joined the office with the belief that she was going to be in an administrative role developing programs for the office’s Special Victims Unit and helping make the office more efficient. Instead, she was given the work of prosecuting sex crimes. Other than about a year early in her career, Hartz said she had no experience as a prosecutor.
Hartz said the job was stressful from the first day. She said she developed heart palpitations and insomnia, and she was having chronic migraines. After she resigned, she took about six weeks off to take care of herself before returning to her previous firm. She said her chest pains and migraines have gotten better since she left.
Around the time of the comments about McCabria, Hartz said Valdez told her she didn’t understand what it was like to be a woman of color in a position of community leadership.
Hartz said she decided to resign, and her departure was “awful.” She said Valdez, who she had considered a friend, has not spoken to her since.
Hanley, Hartz and Kemple all testified that they thought McCabria was “absolutely not” sexist.
Broad consequences
Kemple, who said the staff of the DA’s office had previously felt “wonderful, like family,” said Valdez’s actions had upended her whole world.
Kemple said everyone around the courthouse knew what was going on, including court security and court services officers, and everyone was talking about it. She said several other prosecutors were mortified, and they were upset that Valdez had committed a “huge ethical violation” that “reflected upon us.”
McCabria said the judges felt that they had gone out of their way to try to build relationships with Valdez, who would be taking over the DA’s office after Branson held the position for 16 years. He said Valdez’s actions “definitely chilled” the history of the professional working relationship with the DA’s office and shook people’s trust.
McCabria also said Valdez often has a very negative attitude in his courtroom and that he does his best to ignore what he can to keep the focus on getting the hearings accomplished. He said he ignores comments that he thinks are “beneath the dignity of a professional person.”
Hanley said throughout her career, she has never seen another attorney act toward the bench the way Valdez has.
“That same approach rears its head every so often,” unexpectedly, Hanley said, “and we’re right back there again, the same kind of disrespect.”
Hanley said when there is hostility and antagonism, you’re less inclined to reach out to someone, so the state of affairs has made communication less frequent and affected the productivity of the court.
She said there has been no accountability and no remorse, and it has all affected the relationship between the bench and the DA’s office.
The hearing is set to resume at 8:30 a.m. Tuesday at the Kansas Judicial Center in Topeka. The panel hearing the complaint ruled that there would be no livestream of the hearing, and no members of the public or media are allowed to use electronic devices in the courtroom.
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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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