photo by: Contributed Photos

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

Last March in Douglas County District Court, a witness intimidation case against a Lawrence man depended on two witnesses — an alleged victim whose memory was called into question, and 32-year-old sheriff’s deputy Breanna S. Pence.

What might not have been clear at the time was that Pence was under investigation for allegations of domestic battery. And the man’s attorney claims that if the DA’s office had informed him of that, his client might never have been ordered to stand trial.

At a hearing on Wednesday, Douglas County District Attorney Suzanne Valdez and Sheriff Jay Armbrister clashed about why the defense attorney didn’t get the information he needed. Valdez, whose office has touted its efforts to ensure that such information is disclosed to defendants, pointed at the sheriff, who said on the stand that his office has not been complying with her disclosure policy. Armbrister, meanwhile, said he tried to warn an attorney in the DA’s office that Pence’s testimony might be “problematic,” and that his undersheriff was subpoenaed to testify about Pence’s credibility but never got to say a word about it in court.

Wednesday’s hearing was for the case of Marcus Antonio Phillips, 32, of Lawrence. Phillips is alleged to have intimidated a witness in a domestic battery and felony aggravated assault case, and is scheduled to stand trial in August. But Wednesday’s hearing focused less on Phillips and more on Pence, who wrote the affidavit that called for Phillips’ arrest.

Pence is currently charged in Douglas County District Court with one count of misdemeanor domestic battery. As the Journal-World reported, Pence is alleged to have battered multiple off-duty sheriff’s deputies — including striking a superior officer who was her boyfriend with a baseball bat — during a Halloween party in 2020, as the Journal-World previously reported. She was charged with the crime in April of 2023 and her employment with the sheriff’s office ended in May, but she’d been under investigation for months before that, Armbrister testified on Wednesday. The sheriff’s office began its internal investigation in late 2022 and placed her on administrative leave, and a criminal investigation by the Kansas Bureau of Investigation began in January.

Then, on March 22, Pence testified at Phillips’ preliminary hearing.

Pence was the deputy who took a statement from the woman who was the alleged victim in Phillips’ case, and Pence and that woman were the only two witnesses to testify at the March 22 hearing. At the time, Phillips’ attorney, Gerald Wells, questioned the alleged victim’s memory of events, and he subsequently filed a motion to dismiss the intimidation case.

In that motion, he argues that Phillips was ordered to stand trial based primarily on Pence’s testimony and alleges that the DA’s office knew about the investigation into Pence prior to her testimony in March. Wells’ motion argued that if the office had disclosed that information and Pence’s credibility could have been brought into question, then Phillips might not have been ordered to stand trial on the intimidation charge.

• • •

To make his argument, Wells used a well-known legal requirement for disclosing information favorable to the defense: a precedent known as Brady/Giglio.

Brady/Giglio information, named after two U.S. Supreme Court cases, is 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. It’s not just an issue that’s important to defense teams — it’s been an important issue for Valdez, as well. Her office created a policy in January 2022 that was intended, in part, to ensure that the records of law enforcement personnel who testify in criminal cases be reviewed for instances of dishonesty or bias.

Valdez’s office has also been insistent about law enforcement agencies’ compliance with the policy, and has issued subpoenas to the sheriff and other personnel to testify in person when it deems them out of compliance.

“When the sheriff’s office intentionally refuses to help the State meet its disclosure obligations, the District Attorney’s Office has no way of knowing if the State is in compliance with its legal and ethical obligations. Without disclosure by law enforcement leadership, we have no choice but to subpoena law enforcement to appear at hearings with the personnel records of each officer who would serve as a witness in the case,” Cheryl Cadue, a spokeswoman for the DA’s office, told the Journal-World in January of this year.

In December 2022, a Douglas County District Court judge declined to require Armbrister to comply with previously issued subpoenas, but also declined to cancel — or quash, in legal terms — the subpoenas. Instead, the judge urged the sheriff and the DA to cooperate.

• • •

In its response to Wells’ motion, the DA’s office claimed that it wasn’t obligated to inform Wells about the investigation into Pence. The reason, according to Deputy District Attorney Joshua Seiden, was that nothing in the KBI’s investigation report suggested that Pence’s credibility to testify was in question.

“At the time of the preliminary hearing, the State was aware of the allegations against Ms. Pence,” Seiden wrote. “However, none of the allegations went to Ms. Pence’s truth or veracity. Additionally, the investigation was not yet complete.”

Seiden also wrote that if Pence had any credibility issues in her personnel files, the DA’s office wouldn’t have been aware of them because it didn’t have access to those files.

But on Wednesday, Armbrister testified that he tried to warn Seiden and the DA’s office that there might be problems if Pence testified.

On the stand, Armbrister said that Undersheriff Stacy Simmons had informed the DA’s office about the investigation into Pence on Feb. 9. He also said he personally met with Seiden on Feb. 22 to explain that Pence’s credibility may be in question due to the investigation and possibly for issues related to alcohol abuse.

Armbrister told the court Wednesday that he knew that Pence was a witness in multiple cases, one being a rape case, and that her testimony in those cases could be “problematic.” He said he left his Feb. 22 meeting with Seiden expecting to receive subpoenas from the DA’s office regarding Pence.

And Simmons was indeed issued a subpoena to testify at the March 22 preliminary hearing about Pence’s service record. However, she never got to speak at that hearing — she was not called as a witness. Armbrister testified Wednesday that he emailed the DA’s office later about why Simmons was not called to testify, and also about whether the defense had been informed about the investigation after he and his office told the DA’s office about it.

Armbrister said he thought that was “a simple yes or no question.”

But when Valdez replied to him, Armbrister said she didn’t answer the specific question of whether the information was given to the defense. Instead, he said Valdez wrote that her office was following its Brady/Giglio policy for all cases.

• • •

Valdez got the chance to cross-examine Armbrister on Wednesday, and she asked if he was familiar with her policy for Brady/Giglio issues and the checklist about officers that she asks law enforcement officials to fill out as part of the policy. He said he was.

But he also emphasized the objections he’s had to the policy and the checklist throughout their existence. In April of 2022, Armbrister released his own Brady/Giglio policy, and he’s previously voiced concerns that Valdez’s checklist is too broad and that anything put on it could follow an officer for the rest of his or her career.

On Wednesday, he told Valdez: “When we raised issues (about the policy), we were not listened to.”

“And you have not complied?” Valdez asked.

“Even through ongoing pressure, we have not complied,” Armbrister said.

Valdez also detailed how she had been using her prosecutorial powers since September 2022 to compel Armbrister to comply with her Brady/Giglio policy by issuing dozens of subpoenas to him and Simmons to testify about the credibility of deputies and corrections officers.

But eventually, Wells objected that Valdez was getting off topic, and Judge Amy Hanley instructed Valdez to discuss only the subpoenas relevant to Phillips’ case.

Armbrister then testified that he first knew about the allegations against Pence on Dec. 23, 2022, and placed her on administrative leave. He said that he believed she may have violated office policies by not reporting the October 2020 domestic violence incident. Armbrister said it was the office’s policy that deputies must follow all state laws and regulations and that all deputies are required to report incidents of domestic violence, no matter the circumstances.

Valdez then said that the Halloween party that Pence’s case stems from was attended by numerous members of the sheriff’s office, but that no one reported an incident of domestic violence in connection with that at any point in the last three years. She questioned whether that violated the department’s policy, but before Armbrister could answer, Hanley cut Valdez off and asked her to stay on topic.

Armbrister also said that the investigation into Pence began while the office was investigating another deputy, and that he was not a part of either investigation. He did not say who the other deputy under investigation was.

Valdez then said that one of the questions on her checklist was whether a deputy had violated department policies. She said that if Armbrister had complied with her policy and filled out the checklist, all of the questions and issues with Pence in Phillips’ case could have been resolved prior to the preliminary hearing. Armbrister said that the checklist was unnecessary, and that if he believed there was anything in Pence’s personnel file that would call her ability to tell the truth into question, he would have provided that information.

Wells intended to call Simmons to the stand on Wednesday as well, but Hanley said that the hearing would have to be continued because they were out of time. She scheduled the hearing to resume on July 24.