Questions emerge about whether defendants in Douglas County cases have been getting ‘the whole truth’
photo by: Mackenzie Clark/Journal-World File Photo
As the incoming Douglas County district attorney and her staff prepare to take office, questions are emerging regarding how complaints about untruthfulness or bias by law enforcement have been handled by the longtime DA.
What duty, if any, does the DA’s office have to investigate such complaints? Or should prosecutors rely on law enforcement agencies’ internal investigations — such as those of the Lawrence Police Department, for instance, that have cleared 11 of 16 officers in question in the past few years?
Staff members for the outgoing and incoming DAs have given the Journal-World starkly different answers to that question.
A future senior deputy for incoming DA Suzanne Valdez — who won 40% of the vote in the three-way Aug. 4 Democratic primary and faces no challenger in the Nov. 3 general election — said he believes prosecutors should “absolutely be made aware of” even unsubstantiated complaints.
“I believe we have a responsibility to make an inquiry into that,” Joshua Seiden said.
But Dorothy Kliem, trial assistant to four-term DA Charles Branson’s office, said the opposite.
“The District Attorney’s Office does not investigate officer complaints,” Kliem said via email. “If a complaint on an officer is made to the District Attorney’s Office, the complaint is referred to the agency’s professional accountability unit.”
Why does it matter? Defendants in criminal cases have a constitutional right to know about such “Brady/Giglio” information. It could mean the difference between being found guilty or being exonerated.
“Brady/Giglio” material, named for two landmark U.S. Supreme Court cases, includes information that could be exculpatory for defendants, or that could impeach witnesses who might testify against them. That includes evidence of dishonesty or racial or other bias-based policing by law enforcement officers.
Getting ‘the whole truth?’
In a recent hearing in Douglas County District Court, a judge ruled that a former prosecutor in Branson’s office failed to turn over to a defense attorney a complaint letter when she should have. The letter alleged that Lawrence police Officer Brad Williams had made false accusations against a defendant in an unrelated case.
But because LPD told the DA’s office that its internal investigation found the complaint to be unsubstantiated, the prosecutor told defense counsel that there were no Brady/Giglio issues with the officer, Kliem said.
Since the judge has now ruled that the letter should have been turned over to the defense, Kliem said that “Our office will be notifying attorneys of the complaint through our discovery process by providing a memo indicating the complaint was made and that it was unsubstantiated” by LPD.
However, it was unclear from Kliem’s response — including an answer to a follow-up question to clarify — whether notifications to defense counsel whose cases involve Williams have already begun, and the time frame of cases for which that notification will be given.
18 allegations, 5 now-former officers
Seiden, who has practiced as a defense attorney in Douglas County cases since January 2012, said a key difference he’s noted in his experience defending clients in other jurisdictions is that there’s “not a uniform way” that the current Douglas County DA’s office handles Brady/Giglio information.
How these issues have been handled by the current administration is a concern for Seiden as he’s working on drafting policies for Valdez’s office, he said.
“Quite frankly, we don’t know what we don’t know,” Seiden said.
Since Jan. 1, 2015, the Lawrence Police Department has had 18 allegations of untruthfulness or racial- or bias-based policing involving 16 officers, Interim Chief Anthony Brixius said. Five officers have been terminated or have chosen to resign during or following a department investigation into those types of complaints. The complaints involving the remaining 11 officers were not sustained.
“If we substantiate a complaint based on the evidence that we received, they (those officers) just no longer work here,” Brixius said.
Brixius acknowledged the judge’s ruling in the case involving Williams. He said the notification to the DA’s office that Kliem mentioned in that case was fairly typical.
“We will let them know specifically that we have something, and then they (prosecutors) can determine if they want to know more information about it,” Brixius said.
As noted above, in response to the Journal-World’s question of whether the DA’s office investigates alleged Brady/Giglio violations against officers if they’re determined to be unfounded, Kliem said the DA’s office does not investigate officer complaints.
‘Clear, open lines of communication’
What information prosecutors request from law enforcement may vary greatly, too.
Brixius shared two redacted letters that LPD has received requesting “Giglio checks” on officers: one from Branson’s office and one from the Kansas attorney general’s office. Branson’s letter — three sentences — states that his office has received a Giglio request about an officer, and it asks LPD to review files and provide a written response and to contact him with any questions.
The AG’s letter, on the other hand, is a page and a half of text discussing what could be Giglio information and explaining that office’s procedures; the third page is a checklist containing seven specific criteria, including whether an officer has “any specific instances of conduct going to truthfulness,” “any opinion/reputation evidence concerning truthfulness” and any present allegations of misconduct.
The Journal-World filed open records requests and received several district and county attorneys’ offices’ policies on Brady/Giglio issues. However, Branson has said his office doesn’t need its own written Brady/Giglio policy — “It’s basic prosecutor ethics,” he told the Journal-World in July.
Seiden said he can’t fault law enforcement agencies for not turning over information that they don’t realize they need to turn over.
“That’s going to come down to having clear, open lines of communication with law enforcement so that the different agencies are aware of what’s expected of them,” he said.
If there’s any question about whether something should be disclosed to defense counsel, Seiden said that “we want to err on the side of disclosure,” and whether the information is admissible in court can be determined by the judge.
In addition, Valdez — who has specialized in prosecutorial ethics as a professor at the University of Kansas School of Law — said it’s not up to the prosecutor to determine whether a particular issue is relevant to a current case. Even if an officer was found to have committed misconduct years ago and it may have nothing to do with a pending case, that must be disclosed to the defense, she said.
“Then they (defense counsel) can investigate and determine whether the conduct is something they can use to impeach the particular officer,” Valdez said. “And at this point it’s up to the defense to use, once the disclosure is made by the state. And that’s the requirement, constitutionally, is disclosure of that particular officer’s misconduct. That’s the burden by the state.”
Valdez said she wants to work closely with LPD and area law enforcement to ensure that her office’s policies on Brady/Giglio material and other matters are clear and that they weigh in local factors such as the Lawrence Community Police Review Board.
Brixius said that LPD looks forward to working with the DA and the department’s legal team to identify and mitigate discrepancies moving forward. He said LPD doesn’t see a problem with Valdez’s and Seiden’s desire to know more about unsubstantiated complaints.
“My conversations with her (Valdez) have been great, and she’s energetic,” Brixius said. “I’m really looking to improve all the processes, and especially the processes that we have in between our agencies and just making sure that the entire criminal justice system from the side of law enforcement is working properly and treating everyone fairly. I’m wholeheartedly in support of that and on that same team with her.”
In addition, “We are always looking for ways to improve our knowledge of Brady/Giglio, and what evidence or information falls into those categories,” Brixius said.
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