Wichita police-with-a-past list is an issue in court

09/01/2014 10:00 PM

09/02/2014 6:00 AM

In 2010 and 2011, the Wichita Police Department took a hard look at itself, and the impact continues to be felt.

The department carried out a systematic effort beginning in 2010 to determine whether its employees had any record of dishonesty that could be used to challenge their credibility if they had to testify in a criminal trial, according to testimony last year in a lawsuit involving the city and the police union.

As with other law enforcement agencies around the nation, Wichita police and prosecutors were responding to court decisions concerning their obligation to provide defense attorneys any exculpatory or impeachment information – evidence that helps the defense or allows it to question a witness’ honesty.

In response to recent record requests from The Eagle and other local media, the city on Aug. 21 said that 26 police employees have conduct that has to be disclosed.

Whether the police and district attorney are turning over information about cops with credibility problems has become an issue in an ongoing murder case.

That case is against Kyler Carriker, the 23-year-old son of Jennifer Winn, who ran against the Gov. Sam Brownback in the GOP primary. Carriker is charged with first-degree murder in connection with the death of Ronald Betts in an alleged drug deal that turned into a shooting on North Emporia. Winn has contended that her son has been unjustly prosecuted.

The defense attorney, Sarah Swain of Lawrence, has filed a subpoena for the full list of officers and claims in a court document that the District Attorney’s Office has an unwritten policy of not fully disclosing so-called Brady/Giglio information to defense attorneys. Brady/Giglio refers to names of decades-old court cases that established the need to turn over information.

District Attorney Marc Bennett said the only policy is full disclosure. His predecessor, longtime District Attorney Nola Foulston said Swain’s accusation is “patently false.”

‘Policy’ not to disclose

In a recent court filing, Swain accused the prosecution of withholding key information, saying “it would appear that Marc Bennett’s office has a ‘policy’ of failing to disseminate exculpatory and/or impeachment evidence, therefore violating the duties imposed on prosecutors.” Swain is seeking police gang database information about potential witnesses against her client. Swain said she put “policy” in quotes because she thinks that there is an unwritten policy not to disclose.

Bennett, responding to Swain’s contention, said, “Give me a break. We have a policy, and it is, ‘You turn everything over.’” Last year, Bennett said, his staff provided discovery information – all kinds of evidence – to defense attorneys 6,721 times. As of Aug. 21 of this year, the number is 3,873, he said.

Steve Osburn, longtime chief public defender in Sedgwick County, said he thinks that Swain’s accusation is “too strong” but that he hopes Swain “shakes the boat a little bit.”

There are problems, Osburn said. Public defenders too often get information from prosecutors late, often only days before the trial, which causes them to seek postponements, he said.

Also, Osburn said, public defenders have to take the initiative to get information from prosecutors about their cases, including information that might help the defense or allow it to question a witness’ truthfulness.

He said it’s impossible for public defenders to know whether prosecutors are providing all the information they should.

In an interview, Swain put it this way: “How can we ask for stuff that we don’t know exists?” That’s why it’s crucial for prosecutors to disclose, she said.

Justen Phelps, one of the assistant district attorneys prosecuting Carriker, responded to Swain in a court document filed Thursday. Phelps said prosecutors “made multiple attempts” to provide Swain the gang information, telling her that although she couldn’t be given copies of gang information, she could arrange to see it in person. But she never made the arrangements, Phelps said in the response.

The issues raised by Swain will be argued in Sedgwick County District Court on Thursday.

Swain said she thinks that a policy of not disclosing also existed before Bennett’s tenure, under Foulston.

In an e-mail responding to the accusation, Foulston said that Swain “is making broad allegations that have no basis in truth. … Our charge was to assure that counsel for the defense received all discovery information in their case.” Foulston said that her office organized a “discovery unit where the entire purpose was to ensure that all documents were given” to defense attorneys.

Swain said she wonders how many people could have been convicted over the years when their attorneys didn’t receive proper disclosure.

Officers’ pasts

While prosecutors are crucial in providing information to defense lawyers, police are crucial to channeling the information to prosecutors. According to the city legal staff, it’s up to prosecutors to request information about police officers.

Testimony last year in the lawsuit involving the city and the police union shows that around 2010, the Police Department began a concerted effort to identify which of its personnel had past convictions or violations that needed to be disclosed.

It was an exhaustive effort that included digging up records stored in salt mines.

They were looking for anything that might show a problem with honesty, even something that happened decades ago. It might involve an officer convicted of shoplifting as a teen or an officer who was found to have falsified a report.

The department says it has 26 current employees with issues in their past.

Problems included two felony convictions, 10 misdemeanor convictions, seven instances of “false information/depart from the truth” and seven false reports.

The 26 are commissioned and non-commissioned employees; commissioned officers can make an arrest and carry a gun. Police said the two felony convictions involved employees who are not commissioned police officers and occurred before they were hired.

The department has not made public the names or ranks, saying it considers the information to be personnel records that can’t be disclosed under the law.

As part of its effort, the department compiled a list of police employees for prosecutors to review, according to the testimony. The idea was to get direction from prosecutors about who and what needed to be disclosed.

The department’s point person on the effort was Capt. John Speer, then the commander of the department’s professional standards unit and now a deputy chief.

According to a deposition of his testimony on Jan. 24, 2013, Speer said that the department was trying to find a way to keep employees with Brady/Giglio issues employed and to “minimize their impact” on criminal cases. Police commanders discussed the idea of having the affected employees be part of two-officer units so there would be a witness. Another idea was to have the officers wear body cameras so their actions would be recorded.

Speer testified to the police union attorney that he met with prosecutors about a dozen times to hash out what kinds of things in officers’ pasts had to be disclosed. Speer also talked to prosecutors with city, state and federal agencies.

Foulston said of the process: “From 2010 forward, we were working with law enforcement to assure that they presented us all the information our office required.” She added that there was a “continuing obligation to review who is on the list.”

The former district attorney said there was “Never a time when anyone asked me to leave someone off the list. I don’t think anyone would have ever dared ask that kind of a question.”

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

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