Sedgwick County sheriff discloses 8 employees have witness credibility issues

08/20/2014 6:54 AM

08/21/2014 6:54 AM

The Sedgwick County Sheriff’s Office has eight employees, including a detective and four deputies, who have convictions or policy violations that could call into question the credibility of their testimony in criminal cases.

That information must be disclosed to defense attorneys if the employees were to be called as witnesses.

The Sheriff’s Office provided the information Tuesday in response to a request from The Eagle seeking a list of officers subject to so-called Brady/Giglio disclosure.

Brady/Giglio refers to court rulings that say prosecutors must disclose information that can be used to challenge the credibility of witnesses testifying against defendants. The information would include any criminal convictions that officers have or any official findings that the officers were dishonest.

The Eagle also is seeking the list of Wichita police officers subject to Brady/Giglio disclosure.

Issues surrounding Brady/Giglio disclosure have been at the center of a legal battle involving Wichita Police Department and the police union, including a recent $28,000 settlement won by the union in a dispute over a department policy restricting the type of jobs the officers with a Brady/Giglio designation could perform.

Reasons include convictions, policy violations

The Sheriff’s Office said it wouldn’t publicly identify employees subject to Brady/Giglio disclosure because it involves personnel records that don’t have to be provided under the state open-records law.

Disclosure “would reveal the employee’s reduced effectiveness to the Sheriff’s Office and would constitute a clearly unwarranted invasion of personal privacy,” sheriff’s Lt. David Mattingly wrote in an e-mail response to the newspaper’s record request.

For employees on the list, the Sheriff’s Office tries to limit their exposure to situations so they won’t be called on to testify, Sheriff Jeff Easter said.

Mattingly said he could say that eight current employees, out of a total of about 500 employees, “have been identified by the Sheriff’s Office as being subject to disclosure as required by the Brady/Giglio cases.” Those eight are a detective and four deputies assigned to the law enforcement bureau and three deputies assigned to the detention bureau, Mattingly said. Their ranks haven’t changed since they received the Brady/Giglio designation.

While Mattingly said he couldn’t give the reasons for each employee’s designation, “I will let you know that the reasons vary from convictions to policy violations.”

The Sheriff’s Office policy explains that the Brady v. Maryland court decision from 1963 requires that prosecutors share with the defense team any evidence that is favorable to the defendant. Giglio v. U.S., from 1973, requires that prosecutors provide the defendant evidence “that tends to impeach the character or testimony of the government’s witness in a criminal trial,” the policy says. It applies to any sheriff’s employees required to testify in criminal cases.

The policy spells out that the sheriff’s Professional Standards Unit will tell the District Attorney’s Office about any employee who has a “sustained finding of misconduct related to truthfulness,” a “finding of misconduct related to racial bias” and “any criminal conviction(s) involving acts of dishonesty.”

Also, the policy states, a prosecutor can inquire into whether any sheriff’s employee has a “present allegation of misconduct under investigation.”

Minor infraction lingers for decades

Wichita school board member Jeff Davis, who retired as a Wichita police sergeant in April, confirmed Tuesday that he had been among the Wichita police officers on the Brady/Giglio list. Davis, 55, said he learned in the fall of 2012 that he was on the list for a violation that occurred about 30 years earlier, when he was a young officer and new father.

Davis said it happened this way: One night in 1982 or 1983, while he was working as an officer, he responded to a larceny call and a barking-dog call late in his shift. The rule at the time, Davis said, was that an officer had to finish that day’s reports before leaving for home. Davis said he went home to finish his reports so he could stay up with his newborn son and let his wife get some sleep.

Technically, Davis said, he filed a false report because he put in his daily report that he finished his paperwork before going home. His supervisor suspended him for a day for filing a false report. Nowadays, an officer doesn’t have to finish a report as soon, Davis said.

Davis said he accepted the discipline, and “it didn’t affect my career.” He rose to sergeant and held that rank for 16 years. In the fall of 2012, Davis said he was called into the department’s internal affairs office and told that he was on the Brady/Giglio list for something that happened 30 years earlier — the report falsification. After he found out he was on the list, it never became an issue because he never had to testify. Earlier, as a sergeant he testified a couple times in municipal court, and his past discipline never came up, he said.

Inclusion on the list “didn’t bother me” and didn’t prompt him to leave the department in April, he said. “Brady/Giglio had nothing to do with me retiring. I have nothing to hide. I had a great career on the Police Department.”

Settlement with police union

Don Aubry, a lawyer who has helped represent the police union in arbitration, said Brady/Giglio evidence has become a hot-button issue in more recent court decisions dealing with the failure of the government to provide enough information. The impact has extended to Wichita.

Around late 2010 or early 2011, Aubry said, the Wichita Police Department took a broad meaning of the disclosure rulings and started searching records of police officers to determine if they had any background potentially damaging to their credibility. Under the new approach, officers were flagged as having Brady/Giglio problems if they had convictions in their past or official findings that they had been dishonest, including, for example, filing a false report.

The convictions could include misdemeanors – relatively minor crimes – committed when they were juveniles or before they reached 21, Aubry said. Several officers on the list had convictions that had been expunged, or removed from their record, to the extent that the officers could legally testify that they had never been convicted, he said. In other cases, the officers had gone into diversion agreements when they were younger; diversion means the charges are dismissed if the person follows an agreement with the court.

Eventually, around mid-2011, a Brady/Giglio policy, known as Policy 905, was instituted by the police command staff but not negotiated with the union, Aubry said. Under the policy, officers identified as having Brady/Giglio disclosure material were restricted to “diminished” positions or put in roles in which they would never have to testify, he said. They also couldn’t work part-time in off-duty security roles because of the department’s concern that if they witnessed a crime, there would be no one to corroborate their testimony.

Aubry said it is not clear how many officers were flagged.

Police Chief Norman Williams, who last week announced his retirement, signed off on the policy, Aubry said. “Our issue with the chief” is that he approved the policy without negotiating, Aubry said.

The union challenged the policy by filing a grievance arguing that the policy affected “terms and conditions” of officers’ employment, that it was imposed without negotiation and that it was unreasonable.

Sharon Dickgrafe, the interim city attorney, said the Police Department did consult with the union before putting the policy in place. The job restrictions were based on the city’s understanding of various prosecuting agencies’ interpretations of the legal requirements, she said.

The union and the city settled the issue. About three months ago, the City Council voted to approve a nearly $28,000 payment to settle the grievance. The settlement also at least temporarily lifted restrictions on job placement and part-time work, and the flagged officers no longer have to wear body cameras, Aubry said.

The union and the city are supposed to negotiate a replacement policy and are engaged in discussions on it, Aubry said.

Reach Tim Potter at 316-268-6684 or tpotter@wichitaeagle.com.

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