photo by: Chris Conde/Journal-World

Defense attorney Angelo Panas appears at a hearing on Dec. 30, 2024, in Douglas County District Court.

Updated at 5:12 p.m. Monday, Dec. 30

A defense attorney in a DUI case has asked a Douglas County judge to sanction the District Attorney’s Office for failing to inform the defendant that a law enforcement witness in the case was fired for conduct involving dishonesty.

The witness in question is a Douglas County sheriff’s deputy who was fired from the office in February for stealing chips and soda from a local school. Donn Dunkle, now a former deputy, admitted that while on duty he took a bag of chips and a can of soda from the concession area of an area school. He lost his certification to be a law enforcement officer in July, as the Journal-World reported earlier this month.

Dunkle was listed as a witness in the case of Dustin Lee Welch, 44, of Topeka, who was set to go to trial in September for his fifth DUI, felony criminal threat and misdemeanor interference with law enforcement. Welch entered a plea the day that his trial was scheduled to take place, and the state dismissed all but the DUI charge. Welch agreed to serve two years in prison in connection with the September 2022 incident, as the Journal-World reported. He was scheduled to be sentenced on Monday.

photo by: Douglas County Sheriff’s Office

Former Douglas County Sheriff’s Deputy Donn Dunkle is pictured in 2015.

Welch’s defense attorney, Angelo Panas, had negotiated the plea with Assistant District Attorney Adam Carey, but according to a motion he filed with the court, it was brought to Panas’ attention by an article in the Journal-World that Dunkle had been decertified as an officer. Dunkle was listed as the second witness to be called in Welch’s trial if the trial had taken place.

photo by: Chris Conde/Journal-World

Dustin Lee Welch appears at a hearing on Dec. 30, 2024, in Douglas County District Court.

Panas said the failure to inform the defense about the officer’s decertification is a violation of Brady/Giglio requirements and the DA’s own Brady/Giglio policy.

Brady/Giglio, named after two U.S. Supreme Court cases, refers to 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.

Douglas County DA Suzanne Valdez instituted a formal Brady/Giglio policy in the DA’s Office in 2022. The policy resulted in an acrimonious legal battle between the DA’s office and Lawrence Police Department and Douglas County Sheriff’s Office, as the Journal-World reported.

Panas has asked the court to sanction the DA’s office for failing to inform the defense of Dunkle’s decertification for an act of dishonesty. Panas said Monday that Welch might seek to withdraw his plea in the case in light of the new information.

When confronted with the motion, Carey informed the court that he was also unaware of Dunkle’s decertification until he saw the article in the newspaper.

Sheriff Jay Armbrister said on Dec. 11 that he fired Dunkle in connection with the incident on Feb. 6 and told the DA’s office about the incident on Feb. 8.

Deputy District Attorney David Greenwald told the Journal-World in an email Monday afternoon that Dunkle was never called to testify at Welch’s preliminary hearing or subsequent hearings because he had been fired for a crime of dishonesty.

He declined to go into detail about why Carey said he was unaware of Dunkle’s status.

Greenwald said that failing to inform defense counsel about Dunkle was not not intentional and that the office constantly worked to avoid any oversights.

“Our office is consistently engaged in reviewing our internal policies and procedures to minimize issues that arise, such as this one. There are constant discussions to create safeguards and best practices to prevent things from slipping through the cracks,” Greenwald said.

He said that the office has worked to ensure that compromised officers are prevented from giving sworn testimony in criminal cases.

“The most important thing for the public to know is that compromised officers are not testifying under oath in hearings. Whether an officer with Brady/Giglio issues is a listed witness on a case that happened before they were flagged or remain employed by a law enforcement agency, the District Attorney’s Office has worked to prevent those officers from submitting affidavits and providing testimony in court,” Greenwald said.

Panas also asked the court on Monday to order the state to hand over any information about Dunkle and information about dishonesty on other officers involved in Welch’s case that may have gone overlooked.

“The state wasn’t aware of something they were informed of in February. Maybe there are other issues they are not aware of,” said Panas, who also requested a copy of Valdez’s Brady/Giglio policy.

Judge Amy Hanley did not take up the motion to sanction but granted a continuance and rescheduled Welch to be sentenced on Feb. 24, 2025. She said the parties should be ready for sentencing or to argue whether Welch can withdraw his plea and pursue the sanction against the state after Panas has had time to review the Brady/Giglio information the state provides. Welch is currently free on a $4,000 own-recognizance bond, meaning he was not required to pay any money to be released from jail.

If the Brady/Giglio violation is substantiated, it would be the second instance in recent months where the DA’s office violated the constitutional requirement.

The office was sanctioned in November in the case of Dominic Sanders, who was accused of having shot up a neighborhood from a moving vehicle on the day of the funeral of 14-year-old homicide victim Kamarjay Shaw, to whom Sanders was close.

Hanley ruled the morning that Sanders was scheduled for trial that the DA’s office had committed a Brady violation by withholding evidence about bullet testing by the KBI that could have been exculpatory for Sanders. The trial was canceled and the jury pool that had been gathered was sent home. The state declared that it would appeal Hanley’s ruling, but it dismissed the charges against Sanders on Dec. 10 with prejudice, meaning the charges cannot be refiled.

Greenwald said the issues that arose in Sanders’ case were very different from Welch and that Sanders’ case did not involve a compromised officer.

“There are times when these issues are due in part to internal DA policies or procedures and there are times when we’re beholden to an outside agency to provide us crucial information. We do our best to ensure fairness and transparency for all defendants and attorneys,” Greenwald said.