On heels of similar claim by police chief, Douglas County sheriff in court filings accuses DA of harassment and intimidation
photo by: Contributed Photos
The Douglas County sheriff in a recent court motion has suggested that the Douglas County district attorney has issued subpoenas only to “harass and intimidate” him. The motion follows a similar motion last week by the Lawrence police chief, who said the DA was “weaponizing” her subpoena powers in a retaliatory way.
Both disputes center on access to personnel records of law enforcement officers and how those should be used in criminal cases.
In a motion filed on Friday in Douglas County District Court, Sheriff Jay Armbrister, represented by Leslie M. Miller with Stevens and Brand LLP, asked the court to quash subpoenas issued by District Attorney Suzanne Valdez to him and Undersheriff Stacy Simmons for court cases that “neither Sheriff Armbrister nor Undersheriff Simmons had any involvement in … and thus neither are material witnesses.” The motion occurred in the case of Steven Carl Drake II, who is facing felony drug and flee-and-elude charges and who was charged with attempted murder on Monday.
The DA had requested in her subpoena the personnel files of two sheriff’s deputies. In his motion, Armbrister argues that the files were irrelevant to the case.
“The subpoenas for the requested personnel files are not aimed at obtaining relevant evidence for the matter at hand and they raise significant questions as to whether the DA’s office has a legitimate basis for asking for these confidential personnel files in this setting,” his motion states, and it goes on to say that “the DA’s office should be required to provide strict proof of any valid basis for this request other than harassment and intimidation.”
The subpoenas to the sheriff were issued on Sept. 22, around the same time as the DA’s office issued dozens of subpoenas to Lawrence Police Chief Rich Lockhart, who also filed a motion to quash them, as the Journal-World reported.
In his motion, Lockhart said Valdez appeared to have “weaponized her subpoena powers” and that she issued the subpoenas in retaliation for the Lawrence Police Department’s refusal to comply with Valdez’s Brady/Giglio policy.
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.
Valdez released her Brady/Giglio policy in January in an attempt to ensure that law enforcement provide any evidence that may be beneficial to or exculpatory for a defendant and that the records of law enforcement personnel involved in the case be reviewed for instances of dishonesty or bias.
Armbrister, along with other law enforcement agencies in Douglas County, released their own similar policy in April, which they deemed to be an effective but less invasive way of dealing with personnel records of law enforcement officers.
“It has become clear in the last few years how critical it is for law enforcement agencies to be proactive in having policies that confirm our commitment to protecting constitutional rights. We feel this policy is the right step showing our commitment to compliance,” Armbrister said in a press release when the policy was enacted.
The motion filed by Lockhart was resolved after he and Valdez came to an agreement and the police department consented to comply with the DA’s Brady/Giglio officer checklist, which is a series of 11 questions probing officers’ service records, integrity, credibility and bias.
In the subpoenas to the sheriff’s office, Valdez commanded Armbrister and Simmons to bring with them to the Drake hearing the personnel files of two sheriff’s deputies.
Armbrister’s motion argues that the subpoenas for the personnel files are not aimed at obtaining relevant evidence for the Drake case and raises the question of whether the DA has a legitimate reason for asking for the confidential files.
“The Subpoena Duces Tecum in this matter was not crafted to obtain testimony and documents relevant to the matters set for hearing. These subpoenas contain no regard for concepts of relevance, reasonable time to comply and undue burden,” the motion says.
The motion adds that if the subpoenas are not quashed, then the court should engage in a relevancy hearing to determine whether the personnel files have any bearing on the case and that any review of personnel records should be done by the judge outside of public court proceedings.
The motion was set to be argued in court Monday in front of Judge Sally Pokorny, but Pokorny’s office told the Journal-World on Tuesday that the motions hearing had been rescheduled to Dec. 27.
Armbrister told the Journal-World on Tuesday that his concern with the DA’s checklist is that it is too broad and that listing that there are allegations against a law enforcement officer in a public record potentially subjects the officer to unwarranted scrutiny.
“The crux of the divide are the words ‘allegation’ and ‘finding,'” Armbrister said. “The DA’s office, their checklist refers to allegations in numerous things and doesn’t allow for any context or anything, and we believe simply that an allegation can be made for anything about anything at anytime by anyone for any reason with absolutely no vetting whatsoever.”
Armbrister said that during the hearing on Monday Pokorny began to consider the motion and went through the DA’s checklist and suggested changing the word “allegation” to the word “finding.”
In total, the sheriff and undersheriff were issued 13 subpoenas. Of those, seven have been resolved because the hearing was rescheduled or the case was resolved but four of the remaining six are scheduled for the same day at the same time, Armbrister said, making it an undue burden on his office.
Armbrister also was concerned about how the DA’s office seemed to be portraying law enforcement generally.
“They want to accuse the sheriff’s office of harboring bad cops. I can’t answer to what any other administration has or has not done, but what I can talk about is what I’ve done since taking over, and that is, I’ve given her (Valdez) every bad officer that I know of, and have continued to take information to her to help me vet if I do have a problem or do not have a problem. So my policy is working,” Armbrister said.
Armbrister said the issues between the Sheriff’s Office and the District Attorney’s Office have been tempered for now after Pokorny set the December date for the two offices to meet in court dealing solely with this issue apart from the criminal cases that prompted it.
“I can’t stress enough how much I need a functioning, quality district attorney’s office to be successful. Their success is directly tied to my jail population, as well as the safety of this county. We’re committed to those things, and if they’re ready to come back in and talk, we are always ready to do that. We want to make this thing work. She (Valdez) and I may never get along personally, but we still have committed shared goals, and that is to make Douglas County safe, humane and a fun place to live. So if that means working together on these things, we were ready to do it, but we just haven’t,” Armbrister said.
Armbrister said that he was particularly frustrated after a failed mediation effort led by Moriarty Mediation in June between the DA’s office and multiple law enforcement agencies. He said that Valdez invited the agencies to the mediation session with a goal of “listening and understanding,” but she told them at the beginning of the meeting that she would not budge on her Brady/Giglio policy and then left the meeting — leaving the law enforcement agencies to share their concerns only with the mediator. Lockhart also mentioned the failed mediation as a point of frustration in his recent motion.
“She (Valdez) and Josh (Seiden, deputy district attorney) came in to listen to the judge talk and then they left and that was it. So, we spoke with the judge at length about where the disconnect is. Where we are, where they are and where we would like to get to to make this thing work. And you know, he (Moriarty) was in a no-win situation because only one half of the group was willing to compromise. So it was just a giant waste of time,” Armbrister said.
He characterized the DA’s recent flurry of subpoenas as “borderline harassment and bullying” and said, “I think the city was on the right track with the ‘weaponization of their subpoena power,'” referring to the phrasing used by City of Lawrence attorneys in Lockhart’s motion.
When reached for comment about the sheriff’s motion, Cheryl Cadue, spokesperson for the District Attorney’s Office, declined to answer the Journal-World’s questions and instead referred the newspaper to a discussion that had occurred the previous day during the Drake hearing.
“There was discussion at the hearing that would answer all of your questions. If you can get the transcript, it would be very helpful in explaining the issues,” Cadue said. The DA’s office did not respond Tuesday to a subsequent request for comment.
The Journal-World has begun the process of acquiring and paying for the transcript Cadue mentioned.
Armbrister emphasized on Tuesday that the outcome of this dispute with the DA would ultimately affect “the whole system.”
“I want to do what’s right for everybody. Right now we’re just letting the system play out and we’re trying to do things the right way … I just want everybody to walk away knowing that we’re not trying to hide anything. Certainly not bad cops,” Armbrister said.
Armbrister and Valdez are both Democrats who were elected in 2020.