photo by: Contributed Photos

Sheriff Jay Armbrister, left, Judge Sally Pokorny, center, District Attorney Suzanne Valdez, right

A Douglas County District Court judge has expressed concern about the District Attorney’s Office becoming “crossways with all of the law enforcement in the entire county” and appeared to side at least partially and for the time being with the sheriff in his dispute with the DA.

Judge Sally Pokorny made the comment Monday at a hearing regarding Douglas County Sheriff Jay Armbrister’s motion to quash a subpoena issued by the district attorney — a subpoena that Armbrister argued was irrelevant, unduly burdensome and needlessly invasive of deputies’ personnel records, among other things, and that the DA had argued was legally necessary. Pokorny also referenced a recent similar motion to quash a DA’s subpoena by Police Chief Rich Lockhart.

“I have been practicing criminal law for 45 years and I have never seen anything like this,” Pokorny told the parties, according to a transcript of Monday’s hearing obtained by the Journal-World.

As the Journal-World has reported, the dispute between law enforcement officials and District Attorney Suzanne Valdez centers on competing views of what evidence the state must turn over to a defendant to prepare a criminal case, including evidence favorable to the defendant and evidence regarding the credibility and truthfulness of witnesses for the state — evidence known as “Brady/Giglio” material, named after two Supreme Court cases.

Valdez’s checklist of material that should be disclosed to her office is at odds with a narrower checklist favored by law enforcement agencies, who have expressed concerns that Valdez is seeking overly broad information that they say goes 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.

“As we well know, anybody can make any allegation at any time for anything based on nothing or based on everything,” Armbrister told the judge at Monday’s hearing.

The DA’s checklist also seeks to know, for example, whether an officer had committed any crime as a juvenile, regardless of whether the crime had anything to do with being truthful.

If unable to view the document below (Valdez’s checklist), click here to download PDF file.

PDF

The DA’s practice, as described by Armbrister and by the police chief who dubbed the DA’s methods “retaliatory,” is that if he doesn’t comply with the DA’s checklist he is then subpoenaed to appear personally in court and to bring his deputies’ personnel records to a public forum.

“Once a personnel file is turned over, it becomes open to (the) Kansas Open Records Act,” Armbrister’s attorney, Leslie M. Miller with Stevens and Brand LLP, told the court, a privacy concern that could affect retention and recruitment of employees. The police chief also had expressed concern about what he described as the DA having “free rein to traipse through employees’ confidential personnel files in order to fish” for Brady/Giglio material.

Deputy District Attorney Joshua Seiden countered that the DA’s Brady/Giglio policy had been in place since January and that the “easiest step” to avoid a subpoena would have been for the sheriff to just comply with the checklist, which he described as a “simple checklist” that the DA’s office needs to fulfill its duty of disclosure as a representative of the state.

“Either Sheriff Armbrister doesn’t understand, doesn’t comprehend, or doesn’t appreciate the importance of our obligations under Brady and Giglio,” Seiden told the court, according to the transcript. He said that the sheriff’s office has “proven time and again not to be great at determining what is Brady and Giglio material, and we have had to dismiss serious cases because this material was not disclosed to us,” although he did not enumerate the dismissed cases at Monday’s hearing.

Seiden suggested that if the sheriff did not want to disclose a deputy’s personnel file to the DA, he could disclose it to the judge, who could review it privately.

Pokorny, however, said such reviews weren’t in her job description, noting that if it were “all I am going to be doing is reviewing files” in chambers.

Pokorny, in addition to lamenting the seemingly poor relationship between the district attorney and local law enforcement leaders, appeared to at least partially side with the sheriff by tailoring the checklist questions he would need to answer with regard to Monday’s hearing.

She expressed skepticism over requiring disclosure of allegations vs. actual findings and over requiring the disclosure of every single adjudication.

“This police officer had a juvenile adjudication, so they are supposed to turn over they got an MIP (minor in possession of alcohol) when they were 17? That is not Brady Giglio,” Pokorny said, according to the transcript of Monday’s hearing. “Does this officer have maybe an adjudication on his or her record with a crime involving dishonesty or false statement, okay, but to me, that is just way too broad. Does this officer have an arrest or conviction on his or her record? When? Once again, when they were 15, and now they are 40. That is just way too broad.”

Pokorny additionally took issue with the DA’s question on the checklist about whether an officer provided prior inconsistent statements.

“Well, a prior inconsistent statement does not necessarily go to one’s truthfulness or credibility,” she said. “We all make inconsistent statements. That doesn’t mean we are lying. That means we forgot something. And that is when I was looking at Brady Giglio. It’s not normal human deficiency, but actual misconduct concerning truthfulness or credibility.”

After Pokorny set some parameters specific to Monday’s hearing, which related to the involvement of two sheriff’s deputies in the criminal case of Steven Carl Drake II — who is facing multiple felony charges — she set a date of Dec. 27 for the parties to reconvene for a hearing on the broader Brady/Giglio checklist.

“We need a rule,” Pokorny said, to which the DA replied, “yes.”

“And we aren’t getting it today because everybody is on polar opposites of the field as to what Brady and Giglio require,” Pokorny said, “and we need to have a hearing on what I call the legal issues of what is exactly required and how do we get that compliance.”

Armbrister’s attorney indicated that the sheriff was not inclined, in the months prior to the Dec. 27 hearing, to simply agree with the DA’s checklist, as the police chief ended up doing last week after he faced dozens of subpoenas for resisting.

“The reason they probably started complying is they had no other options,” Armbrister’s attorney said of the chief. “The police chief was being served. He had 35 summonses is my understanding for that recent matter, so yes, maybe they caved and maybe they gave in, but that doesn’t mean my clients are bound to make that same decision. We are trying to reach some sort of reasonable resolution.”

The Journal-World reached out to the DA’s office twice on Tuesday about Armbrister’s subpoena, which he discussed in an interview with the newspaper. The DA’s spokesperson declined to answer questions but referred the Journal-World instead to the transcript from Monday’s hearing, which the Journal-World purchased and obtained on Wednesday.

Armbrister and Valdez are both Democrats who were elected in 2020.