Max Kautsch: Swaths of Kansas lack written policies on exculpatory evidence, law enforcement dishonesty (Column)

Leslie Mayer of Hutchinson is convinced the Lyon County Attorney’s Office withheld evidence that would have helped her late son Travis avoid at least some of the 56 months in prison he served after being found guilty of aggravated battery of a law enforcement officer at a 2017 trial.

The withheld evidence, she believes, included police body cam footage, and she has made strenuous efforts, including filing a complaint with the FBI, to prove the Lyon County Attorney’s Office should have disclosed the footage to Travis’s defense attorney.

Yet, it now appears there was no body camera footage to disclose.

That reality remains difficult for Leslie to accept. It would be easier for her if the county attorney could have referred her to a written policy governing how the office handled disclosing exculpatory evidence to Travis’s defense counsel. Such rules are commonly referred to as “Brady/Giglio policies” because those are the names of two U.S. Supreme Court cases that established what the Kansas County and District Attorney’s Association training material on the issue calls the “complex framework of requirements upon prosecutors regarding their duty to disclose material exculpatory evidence to defendants.”

But recent requests under the Kansas Open Records Act made by the Kansas Coalition for Open Government prove that the Lyon County Attorney’s Office had no such policy when Travis was convicted. What’s more, less than half of the 20 district and county attorneys serving jurisdictions with at least one city of the first class as defined by Kansas law have written policies fully addressing defendants’ constitutional rights to obtain evidence against them.

Such rules are an essential way to achieve transparency in the criminal justice system.

Two basic rights

The Brady and Giglio cases establish two different, but related, rights for criminal defendants. Under Brady v. Maryland, the prosecution is obligated to turn over to the defendant any exculpatory evidence — that is, evidence that tends to assist the defense. Generally, that requires the disclosure of virtually anything in the prosecution’s possession that relates to the case.

Meanwhile, the rule announced in Giglio v. United States requires law enforcement agencies to deliver to defense counsel “material” evidence of a law enforcement’s dishonesty. The application of this rule can be fraught, as the parties involved may disagree on what counts as “material” evidence of dishonesty.

Both rules recognize a simple fact of criminal prosecutions: that the prosecutor has the evidence, not the defendant, and that the government is obligated to turn over that evidence in a process known as “discovery.” Without the rules from these cases imposing these obligations, there would be nothing to stop unscrupulous prosecutors from withholding key pieces of evidence. The public would have no assurance that the discovery process is fair or that convicted defendants are truly guilty.

Criminal law concepts such as jury trials and Miranda warnings seem to permeate popular culture, but awareness of prosecutors’ obligation to disclose evidence to defense attorneys during discovery is less widespread.

Brady/Giglio “needs to be a household name,” Mayer wrote in an emailed account of the circumstances surrounding Travis’s case. “As a normal citizen without a Law Degree, Google became my best friend in learning about” these concepts, she wrote. Like many other Americans, she had “never heard of Brady/Giglio and did not know what ‘Discovery’ was until after the Trial.”

No written policies

Of the seven most populous counties in the state (Sedgwick, Wyandotte, Johnson, Shawnee, Douglas, Riley and Leavenworth), only four have both Brady and Giglio policies in writing. Riley and Johnson lack written Brady policies, and Wyandotte County has neither a Brady nor Giglio policy in writing.

“With regard to Brady, I do not have a separate written policy,” Riley County Attorney Barry Wilkerson wrote in an email. “All the attorneys in my office understand they are expected to follow The Kansas Rules of Professional Conduct, the rules set forth in K.S.A. 22-3212 and K.S.A. 22-3213 in addition to Brady v. Maryland.”

Maintaining oral policies, rather than written policies, gives residents in such jurisdictions little choice but to trust that each prosecutor in the office, despite no written guidance, shares that understanding.

Without a written policy, there is no mechanism to hold an employee accountable in any meaningful way if one claims they were unaware of their disclosure obligations, leaving taxpayers to the whim of any bad actor within the office.

But Wilkerson’s willingness to explain how his office handles Brady issues stands in contrast to the Johnson County and Wyandotte County district attorney’s offices, neither of which elaborated when asked for comment about their responses to the open records requests indicating an absence of written policies.

Requested information

Of the other 13 district and county attorneys who received KCOG’s open records request (Atchison, Bourbon, Crawford, Finney, Ford, Geary, Harvey, Labette, Lyon, Montgomery, Reno, Saline, and Seward), only Harvey, Reno, and Saline had written policies that were in effect before the open records request.

Not only did Saline County Attorney Jeff Ebel provide his office’s policy, he also provided a copy of a document his office created to help inform defense attorneys practicing in the jurisdiction “as to what might constitute Brady/Giglio information.”

The Lyon County Attorney’s Office claimed to have a written policy but could not provide any documentation in response to a follow-up KORA request to show that the written policy had been in place prior to Dec. 15, 2022, the date the office responded to KCOG’s original KORA request. Assistant County Attorney Brian Henderson then wrote in response to the follow-up that “it is our general policy with regards to these disclosure issues to follow the law as is required by current caselaw, statute and ethical guidelines. … I do not believe there is a written document satisfying your request that would otherwise include such an effective date. If I learn of such, I will supplement our response.”

The Lyon County Attorney’s office did not answer whether an absence of a written policy hinders its ability to ensure proper disclosure of relevant and material evidence to defense counsel.

Meanwhile, Seward County Attorney Russell Heasenbank admitted his office did not have a written policy but described how his unwritten policy is implemented: “The Sheriff, the police chief and I meet each week. Brady/Giglio discussions occur regularly as to the rules and expectations of all law enforcement. Further, discussions related to Brady/Giglio occur in every case with the participating officers and participating attorney as to any and all Brady/Giglio issues that may be applicable.”

Heasenbank also relayed his office’s obligations to disclose evidence of law enforcement officer dishonesty.

“Brady/Giglio is relevant from the point a matter comes under investigation even though the law (Courts and Legislature) has not imposed that standard,” he wrote. His office also “maintains an open file policy as to the defendant’s attorney of record or toward a pro se defendant in each case,” he wrote.

‘Forefront of our minds’

Eight of those 13 offices serving less-populated jurisdictions neither have written policies nor offered any meaningful explanation for how their office applies Brady/Giglio, although a couple were willing to comment.

“I have been CA here since July 2021 and, honestly, it just hasn’t occurred to me to prepare a written policy, although I think it is a very good idea and will be preparing one as soon as I am able to,” Bourbon County Attorney Tiana McElroy wrote in response to KCOG’s KORA request.

“It’s always something we keep in the forefront of our minds, but just haven’t put it to writing yet,” she continued. “That is not to say that we do not very strictly follow the requirements set out by both cases; we just have not yet developed a written policy.”

Labette County Attorney Mandy Johnson advised that she is “fairly new as the County Attorney, and I have looked to see if we have a written policy and have not found one. I have all the brady/giglio officer information that I keep at my desk and if it is an officer with those reports then we notify the defence [sic] of that. I am going to work and trying to come up with a written policy on this as well.”

Although these explanations are appreciated, they underscore an uncomfortable fact. The public has no choice but to trust that everyone in these offices understands and follows unwritten policies.

But at least McElroy and Johnson expressed an interest in formalizing a policy. Five of the eight offices serving less-populated areas (Atchison, Crawford, Finney, Ford and Montgomery) declined to offer any explanation despite requests for comment. And when Geary County Attorney Krista Blaisdell was asked why her office doesn’t maintain a written Brady/Giglio policy, she replied that her office has “never maintained a written policy on the matter.”

Available resources

The Kansas County and District Attorney’s Association training materials referenced at the outset of this article are not the only readily available source to which officials could refer to learn the importance of addressing issues arising under Brady or Giglio. A simple Google search produces mountains of information authored by lawyers, scholars and journalists from all over the country.

But local sources are available too. As an article on the Kansas Peace Officers Association website titled “A Note About Brady/Giglio Responsibilities” suggests, if a criminal justice agency does not “currently have a Brady/Giglio policy and procedure in place for the receipt, review, litigation and disclosure of information, it is recommended that one be created sooner than later.”

Such a policy is advisable because, as the author put it, “the Constitution requires the government to affirmatively provide to all criminal defendants both exculpatory (favorable) evidence and impeachment (credibility) evidence concerning government witnesses, including law enforcement officers.”

The Kansas Coalition for Open Government believes that establishing written Brady/Giglio policies is essential to promoting transparency and accountability in law enforcement. Kansas is not well served if fewer than half of the district and county attorneys serving the state’s largest population centers seem to agree.

Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here. Find how to submit your own commentary to The Lawrence Times here.

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