In court filing, Lawrence police chief accuses Douglas County DA of ‘weaponizing’ subpoenas in retaliatory way
photo by: Contributed
Updated at 3:10 p.m. Tuesday
The Lawrence police chief has alleged in court that the Douglas County district attorney was “weaponizing” her subpoena power in a retaliatory way as their two departments are embroiled in a dispute over the personnel files of police officers.
Though the dispute between the top area law enforcement officials has since been resolved, according to both parties, it involved both mediation and legal proceedings before reaching that point.
Chief Rich Lockhart filed a motion on Thursday to quash 27 subpoenas filed by District Attorney Suzanne Valdez ordering him to testify on the service records of police officers involved in the cases in an effort to force him to comply with her 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’s office publicized her own Brady/Giglio policy and checklist in January. In April, Lockhart and leaders of multiple other law enforcement agencies released their own policy and checklist, which they deemed to be an effective but less invasive way of dealing with personnel records of law enforcement officers.
Lockhart’s motion, filed by Lawrence city attorneys, describes a failed mediation attempt to settle differences in Brady/Giglio policies between the police and the District Attorney’s Office, specifically how police officers are vetted before being allowed to testify about a crime in a legal proceeding. The motion was filed on Sept. 22, in response to a subpoena to Lockhart to testify in the trial of Lee Andrew M. Pennington, 34, who is charged with aggravated burglary.
“Here, for whatever reason, contrary to the law, it appears the District Attorney has weaponized her subpoena powers to bend the city, the police department, and the movant (Lockhart) to her will,” Lockhart’s filing said.
Lockhart’s motion alleges that the 27 subpoenas create an undue burden on him, demanding with little notice that he appear in lengthy court proceedings for many weeks running, and that Valdez only issued the subpoenas as retaliation for his unwillingness to comply with her Brady/Giglio policy, as against his own, and that the use of the subpoenas is “tantamount to abuse of process” and that Valdez may be subject to court sanctions.
The filings cite an email sent from Valdez to two police detectives who were scheduled to testify in a rape trial.
Valdez had first subpoenaed Lockhart to testify about their service records prior to the detective’s testimony in the trial. She wrote in the email: “My sincerest apologies for having to go this route, especially when all your chief had to do was complete a checklist for both of you without involving the court.”
The motion states that Lockhart was able to successfully quash a subpoena in Judge Kay Huff’s courtroom on June 7 by “raising concerns regarding undue burden and an unreasonable time to comply.” Huff agreed that the subpoena should be quashed.
“Nevertheless, the District Attorney has taken it upon herself to not only issue another such subpoena, but to issue dozens of them,” Lockhart’s motion said.
Valdez instituted a formal Brady/Giglio policy in January of this year that “is intended to promote the State’s obligation to disclose exculpatory and impeachment information to criminal defendants and to seek a just result in every case,” according to a release from her office at the time.
As a part of that policy, Valdez has asked the officer’s supervisor to fill out a questionnaire that discloses to the prosecutor’s office whether or not that officer has a disciplinary action, integrity issue or other allegations on their record, going back to juvenile records, that could exclude them from testifying on a case.
If the supervisor answers yes to one of the questions, they are asked to present documentation of what is in the officer’s service record that might disqualify the officer and that material will be reviewed by an attorney from the District Attorney’s Office to determine whether they are eligible to testify or present evidence in a trial.
This is the law enforcement checklist from the DA’s office:
1. Does this officer have a juvenile adjudication on his/her record?
2. Does this officer have an arrest or conviction on his/her record?
3. Any agency/department finding of misconduct reflecting on truthfulness, credibility, or integrity?
4. Any agency/department investigation of this officer for violation of departmental policy reflecting on truthfulness, credibility, or integrity?
5. Any allegation or complaint of bias against a target, subject, defendant or group of individuals?
6. Has this officer provided any prior inconsistent statements on material issues in a case?
7. Are there any present allegations or complaints of violations of departmental policy against this officer?
8. Are you aware of any allegations or complaints against this officer regarding specific instances of misconduct going to truthfulness, credibility, veracity, use of force, inaccurate reporting, mishandling of evidence, false documentation, and/or failure to follow procedure in handling of a confidential informant or source of information?
9. To your knowledge, has anyone in your agency/department, or any other agency/office/department expressed an opinion/reputation about this officer concerning his/her lack of truthfulness, credibility or veracity?
10. Are you aware of any instance in which this officer failed to report a use of force?
Lockhart’s filing said the policy put forth by Valdez is too invasive of a police officer’s right to privacy and the policy let “the District Attorney or her designee be granted free rein to traipse through employees’ confidential personnel files in order to fish” for Brady/Giglio material. He said the DA was requiring that the city be required to keep and to maintain, for each employee, checklists far exceeding the requirements of Brady or Giglio.
Law enforcement agencies in Douglas County came together to create an alternate policy to the district attorney’s that addresses some of the personnel questions on Valdez’s checklist. The policy was announced in a joint press release in April from the Lawrence Police Department, the Douglas County Sheriff’s Office, Eudora, Baldwin City and University of Kansas police departments.
The policy states that the agency will provide the prosecutor:
• Any agency/department or judicial sustained findings of misconduct related to truthfulness;
• Any criminal convictions, including juvenile adjudications, involving acts of dishonesty;
• Any present allegations of misconduct under investigation related to truthfulness, credibility, or integrity, including allegations of bias or discrimination.
Lockhart wrote in an affidavit attached to the filing that he and other law enforcement agencies met with Valdez on June 3 to engage in mediation to discuss a compromise on the policies. The mediation was led by retired Judge Kevin Moriarty. Lockhart’s affidavit said that Valdez indicated early in the mediation that she wouldn’t budge on the policy.
Lockhart said the two agencies worked out an agreement later in the month for the District Attorney’s Office to review disciplinary investigations into officers to “alleviate” the need for Lockhart to testify in court about an officer’s record but that the DA reviewed only one file after a court order.
Lockhart’s filing says the subpoenas create an undue burden on him by requiring him to be in court to testify 27 times between Sept. 21 and Oct. 18 to the professional conduct records of more than 30 police officers and detectives.
The motion to quash the subpoenas concludes with:
“Suzanne Valdez has been the Douglas County District Attorney since January 2021, but this bombardment of subpoenas has only begun recently. If the checklist Valdez’s office seeks to force upon movant is really necessary, one must wonder why it took her office more than a year to implement. The alternative – which is most likely – is that these subpoenas directed at the Chief of Police are a retaliation for his non-acceptance of the checklist. Nevertheless, the City has previously provided the District Attorney’s Office with a modified checklist that movant is willing to provide, though providing any such checklist is not required by law.”
When asked for comment, the District Attorney’s Office spokesperson, Cheryl Cadue, said that “the matter was actually resolved prior to court yesterday,” meaning Monday.
On Tuesday afternoon, the DA’s office sent a statement to the Journal-World saying that she and Lockhart had communicated further on Monday afternoon and that the police department agreed to comply with the DA’s Brady/Giglio checklist, which made the chief’s motion moot and also released him from the subpoena compliance.
“I am pleased that though sometimes there is disagreement about law enforcement policy, together we continue to communicate and focus on public safety. Chief Lockhart and the Lawrence Police Department are our indispensable partners and we’re working together to keep our community safe,” Valdez said in the statement.
Lockhart, later Tuesday afternoon, also indicated that the dispute had been resolved, telling the Journal-World via email: “We’ve worked out with DA Valdez, the issues related to the subpoenas and Brady Giglio. We look forward to continuing to work with the DA and her staff to keep Lawrence Safe and Secure.”
This is not the first time the DA and the police chief have publicly clashed recently. In August, as the Journal-World reported, the DA sent out a press release criticizing the police department for using the word “criminals” in social media posts. She said that videos that the police share are edited and do not always depict the entirety of the incident. In response, the chief simply said that he was committed to transparency and was proud of his officers.
This story will be updated as new information becomes available.