photo by: Contributed Photos

Douglas County Sheriff Jay Armbrister, left, and Douglas County District Attorney Suzanne Valdez.

A Douglas County District Court judge has declined to order law enforcement to comply with the district attorney’s new officer transparency policy.

Judge Sally Pokorny in autumn found herself in the middle of a dispute between District Attorney Suzanne Valdez and Sheriff Jay Armbrister — two Democrats who were elected in 2020 — about Valdez’s Brady/Giglio policy. In a written ruling last week Pokorny removed herself from that quarrel.

“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. The Court will no longer be placed in the middle of this disagreement,” Pokorny wrote in her ruling.

Brady/Giglio policies, named after two U.S. Supreme Court cases, address the evidence that the state must turn over to the defendant to prepare a criminal case, including evidence favorable to the defendant and evidence affecting the credibility of witnesses for the state.

Pokorny’s ruling states that Kansas has no specific policy about how Brady/Giglio information is to be handled between law enforcement and prosecutors. She wrote that guidance from other jurisdictions suggests that the burden of finding and disclosing that information requires cooperation between the two executive branch members to fill the Supreme Court’s mandate.

As reported by the Journal-World, Valdez’s policy includes a checklist of 11 questions about an officer’s service record and whether or not they have been, or have been accused of being, untruthful or biased in their duties.

Valdez released her policy in January and by September, she issued dozens of subpoenas to top law enforcement officials, including Armbrister and Lawrence Police Chief Rich Lockhart, after they refused to comply with her policy by submitting a complete checklist about every officer who might testify in court. The subpoena ordered Armbrister and Lockhart to attend court as a character witness of any officer who would testify in those cases and to bring with them those officer’s service files to be reviewed by the prosecution and judges as necessary to determine that officer’s credibility.

Lockhart eventually capitulated to Valdez’s policy but only after a City of Lawrence attorney filed a scathing motion to quash those subpoenas; in the motion Lockhart accused Valdez of “weaponizing her subpoena powers” to force law enforcement to comply.

Armbrister filed a similar motion to quash his subpoenas and accused Valdez of “intimidation and harassment” and refused to comply with the policy. Armbrister said that the checklist that Valdez had created was too broad and went well beyond the scope of Brady/Giglio. One example given by Armbrister is that Valdez makes no distinction between an allegation and an actual finding that a law enforcement officer has been untruthful or engaged in misconduct. Law enforcement also objected to the disclosure of every single adjudication for officers, stretching even back to when they were juveniles.

The conflict between the offices came to a head on Oct. 3 during a hearing for Steven Carl Drake II, 47, of Lawrence. Drake is charged with multiple offenses including eluding police, possession of methamphetamine and attempted first-degree murder. Armbrister, represented by Leslie M. Miller with Stevens and Brand LLP, attended the hearing and attempted to quash the motion. After Valdez asked for a universal ruling on the subpoenas issued to Armbrister, Pokorny scheduled a motions hearing for Dec. 27 but ruled last week instead.

At the October hearing, Pokorny expressed skepticism about Valdez’s broad checklist and a concern that the DA’s Office was becoming “crossways with all of the law enforcement in the entire county.”

“I have been practicing criminal law for 45 years and I have never seen anything like this,” Pokorny said at the time.

In Pokorny’s ruling last week, she quoted case law holding that prosecutors are not obligated to personally review police files in search of exculpatory information and that judges do not have a duty to supervise the disclosure of Brady information because such supervision would necessitate a complete review of the state’s entire investigation. That duty rests with the executive branch, she wrote, not the judicial branch.

Pokorny wrote that in Kansas, which has no statutes outlining procedures for the DA and law enforcement to work together to discover and disclose Brady/Giglio material, the request from prosecutors to law enforcement “is based on trust,” and the court “cannot force one executive branch to trust another executive branch.”

The prosecution has met its duty, Pokorny wrote, citing case law, when it requests Brady/Giglio information; if none is produced, the prosecution has no obligation to personally inspect police files.

Armbrister on Tuesday told the Journal-World in an email that he believed Pokorny’s interpretation of the matter supported his own.

“We are very pleased with Judge Pokorny’s ruling that we believe validates that we have approached and implemented our Brady-Giglio Policy from a grounded and legal aspect,” Armbrister wrote. “We also feel this ruling is in the best interest of both justice as well as transparency. It is, and always will be, the goal of this agency to maintain staff that represents the values and integrity this community demands of us. And as we have proven in our first two years in office, Undersheriff (Stacy) Simmons and myself will continue to root out bad cops and unethical actors in our justice system because there is no place for them in this agency, in our justice system or law enforcement and prosecution as a whole.”

The DA’s Office, via spokesperson Cheryl Cadue, told the Journal-World that the DA’s “policy was carefully and deliberately formulated and is clearly consistent with the prevailing legal authority.”

Conflict between the sheriff and the DA has arisen in other realms, most recently in a case where a Lawrence man took issue with the DA’s handling of a criminal case involving a sex crime against a juvenile. In that case, as the Journal-World previously reported, the sheriff suggested to a resident that he commence a recall petition against Valdez.