Leslie Mayer of Hutchinson is convinced that 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 convicted of aggravated assault on a law enforcement officer during a 2017 trial.
The evidence withheld, she said, included police body camera footage, and she made strenuous efforts, including filing a complaint with the FBI, to show that the Lyon County Attorney’s Office should have disclosed the footage to the public. Travis’ defense attorney.
However, it now appears that there was no body cam footage to reveal.
That reality remains difficult for Leslie to accept. It would have been easier for her if the county attorney could have directed her to a written policy governing how the office handled the disclosure of exculpatory evidence to Travis’ defense attorney. Such rules are commonly referred to as the “Brady/Lily policies” because these are the names of two United States Supreme Court cases that established what the Kansas County and District Attorneys’ Association training material on the matter calls the ” complex framework of requirements for prosecutors regarding their duty to disclose substantial exculpatory evidence to defendants.
But recent requests under the Kansas Open Records Act made by the Kansas Coalition for Open Government show that the Lyon County Attorney’s Office had no such policy when Travis was convicted. Additionally, fewer than half of the 20 county and district attorneys serving jurisdictions with at least one first-class city as defined by Kansas law have written policies that fully address defendants’ constitutional rights to obtain evidence against them.
Such rules are an essential way to achieve transparency in the criminal justice system.
Two fundamental 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 aid the defense. In general, this requires disclosure of virtually anything in the prosecution’s possession that pertains to the case.
In the meantime, the rule announced in Giglio v. The United States requires law enforcement agencies to provide the defense attorney with “material” evidence of law enforcement dishonesty. Enforcing this rule can be difficult, 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 of these cases imposing such obligations, nothing would 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’s warnings seem to permeate popular culture, but awareness of prosecutors’ obligation to disclose evidence to defense attorneys during discovery is less widespread.
Brady/Giglio “must be a household name,” Mayer wrote in an emailed account of the circumstances surrounding Travis’ case. “As an ordinary citizen without a law degree, Google has become my best friend in learning” these concepts, she wrote. Like many other Americans, he “had never heard of Brady/Giglio and didn’t know what ‘Discovery’ was until after the trial.”
No written policy
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 have no written Brady policies, and Wyandotte County has neither a written Brady nor Giglio policy.
“As far as Brady is concerned, I don’t have a separate written policy,” Riley County Attorney Barry Wilkerson wrote in an email. “All attorneys in my office understand that they are required to follow the Kansas rules of professional conduct, the rules set forth in KSA 22-3212 and KSA 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 every attorney in the office, despite no written guidance, to share that understanding.
Without a written policy, there is no mechanism to hold an employee significantly liable if they claim to be unaware of their disclosure obligations, leaving taxpayers at the whim of any bad actor within the office.
But Wilkerson’s willingness to explain how his office handles Brady’s problems is at odds with the Johnson and Wyandotte county district attorney’s offices, neither of which elaborated when asked for comment on their responses to requests for documents. open that indicated the absence of written policies.
Information requested
Of the 13 other 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 prior to the open records request.
Not only did Saline County Attorney Jeff Ebel provide his office’s policy, but he also provided a copy of a document created by his office to help inform defense attorneys practicing in the jurisdiction “about what could constitute a ‘Brady/Lily information’.
The Lyon County Attorney’s Office said it had a written policy but could not provide any documentation in response to a follow-up KORA request to show that the written policy was in effect prior to December 15, 2022, date in which the office responded to KCOG’s Original KORA Request. Assistant County Attorney Brian Henderson later wrote in response to the follow-up that “it is our general policy regarding these disclosure issues to follow the law as required by current case law, statute and ethical guidelines. … I don’t think there is a written document that satisfies your request that would otherwise include such an effective date. If I become aware of this, I will complete our response.
The Lyon County Attorney’s Office did not respond to whether the absence of a written policy hinders its ability to ensure adequate disclosure of relevant evidence and materials to the defendant.
Meanwhile, Seward County Attorney Russell Heasenbank admitted his office did not have a written policy, but described how its unwritten policy is implemented: “The sheriff, the police chief and I meet every week. Brady/Giglio discussions occur regularly about the rules and expectations of all law enforcement agencies. In addition, Brady/Giglio related discussions occur in each case with the participating officers and participating attorney regarding any Brady/Giglio matters that may be applicable.
Heasenbank also conveyed its office’s obligations to disclose evidence of law enforcement dishonesty.
“Brady/Giglio is relevant from the point where a matter is being investigated even if the law (courts and legislature) has not enforced that standard,” he wrote. His office also “maintains an open file policy with respect to the defendant’s registry attorney or with respect to a pro se defendant in any case,” he wrote.
‘At the forefront of our minds’
Eight of those 13 offices serving less populated jurisdictions have neither written policies nor offered any meaningful explanations on how their office enforces Brady/Giglio, although one couple were willing to comment.
“I’ve been CA here since July 2021 and honestly, it hasn’t occurred to me to prepare a written policy, although I think it’s a great idea and will prepare one as soon as I’m able,” Bourbon County Attorney Tiana McElroy wrote in response to KCOG’s KORA request.
“It’s always something that we keep at the forefront of our minds, but haven’t put it into writing yet,” she continued. “That’s not to say we don’t follow the requirements set by both cases very strictly; we just haven’t developed a written policy yet.
Labette County Attorney Mandy Johnson advised that she is “pretty new as a county attorney, and I’ve been looking to see if we have a written policy and I haven’t found it. I have all of officer brady/lily’s information that I keep on my desk and if it’s an officer with those reports then we inform the defense [sic] of that. I will work and try to come up with a written policy on this as well.”
While these explanations are appreciated, they point out an inconvenient fact. The public has no choice but to trust everyone in these offices to understand and follow unwritten policies.
But at least McElroy and Johnson have expressed interest in formalizing a policy. Five of the eight offices serving the less populated areas (Atchison, Crawford, Finney, Ford and Montgomery) declined to offer any explanations 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.”
Resources available
The Kansas County and District Attorney’s Association training materials referenced at the beginning of this article are not the only readily available source that officials could refer to in order to learn the importance of addressing issues arising under Brady or lily. A simple Google search yields mountains of information written by lawyers, scholars and journalists from all over the country.
But local sources are also available. 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 for receiving, reviewing , litigation and information disclosure, it is recommended that one be created as soon as possible.”
Such a policy is advisable because, as the author states, “the Constitution requires the government to affirmatively provide all criminal defendants both exculpatory (favorable) evidence and impeachment (credibility) evidence concerning government witnesses, including agents of the of the order”.
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 less than half of district and county attorneys serving the state’s largest population centers appear to agree.
Max Kautsch is an attorney whose practice focuses on First Amendment rights and open government law. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are influenced by public policy or excluded from public debate. Find information, including how to submit your comment, here.
