Wednesday, July 11, 2018

Missouri Prosecutor Reprimanded

A summary of a May 1 oral argument from the web page of the Missouri Supreme Court

SC96939 
In re: Eric G. Zahnd 
Platte County
 
Attorney discipline
Listen to the oral argument: SC96939 MP3 file

Chief Disciplinary Counsel Alan Pratzel represented his office in Jefferson City during arguments; Zahnd was represented by Edwin Smith of Polsinelli PC in St. Joseph. Judge George E. Wolf III – a circuit judge in the 16th Judicial Circuit (Jackson County) – sat in this case by special designation in place of Judge W. Brent Powell. 

Eric Zahnd has served as the elected prosecutor in Platte County since 2003. This disciplinary case arises out of matters relating to his office’s prosecution of Darren Paden, a prominent member of the Dearborn community in northern Platte County. In December 2012, the prosecutor’s office charged Paden with two counts of first degree statutory sodomy, alleging he had admitted to sexually assaulting one of his daughters. Paden posted bond and was released from jail, after which he made statements to various members of the community, causing his daughter to feel ostracized. In August 2015, when Paden pleaded guilty as charged, he admitted he had lied to people in the community. Before Paden’s sentencing hearing, held in October 2015, the circuit court received a number of letters directly from individuals referencing Paden’s character, apparently upon solicitation of Paden’s father or attorney. Some letters questioned Paden’s guilt, the victim’s character or both. The letters were placed in the court’s public file, with copies sent to the prosecutor’s office. Zahnd or his assistants contacted several of the letter writers. Zahnd alleges his office did so to advise the writers their letters were part of the public record, to apprise them of the full facts of the case and to consider whether to call them as witnesses during the sentencing hearing. The chief disciplinary counsel alleges the prosecutor or his representatives told the letter-writers their names would be included as supporters of child molestation in a news release the office was preparing to send to media if the writers did not withdraw their letters. The day before the sentencing hearing was scheduled to be held, Zahnd permitted an assistant prosecutor to post to the office’s Facebook page that: Paden would be sentenced the next day, a number of people had submitted letters to the court in support of Paden and anyone wishing to show support for the victim could attend. During the hearing, the defense did not mention the letter-writers or ask the circuit court to consider the letters when imposing sentence, and the assistant prosecutor referenced the letter-writers only as a group. After the circuit court imposed two consecutive sentences of 25 years in prison, the prosecutor’s office distributed to the media a news release with a headline and quotations from Zahnd expressing disappointment about community members supporting a defendant who had confessed to sex crimes against a child over the victim. The news release listed the names and current or former employers of certain individuals who had written letters in support of Paden. Three of the individuals named in the news release allege they were harmed as a result. 

The chief disciplinary counsel instituted disciplinary proceedings against Zahnd in July 2017. A disciplinary hearing panel conducted an evidentiary hearing. During the hearing, Zahnd denied any wrongdoing or any violations of the rules of professional responsibility and said he included information about the letter-writers in his news release to show the public that criminal defendants supported by prominent community members will not receive preferential treatment. In December 2017, the panel issued its decision finding Zahnd violated certain rules of professional responsibility but not others and recommending he be reprimanded. Zahnd rejected the recommendation. The chief disciplinary counsel asks this Court to suspend Zahnd’s law license with no leave to apply for reinstatement for at least six months.

This case presents two primary questions for this Court – whether the evidence shows Zahnd violated rules of professional responsibility and, if so, what discipline, if any, is appropriate. Related issues include the extent to which Zahnd’s public statements are protected by the First Amendment or within the “safe harbor” of the rule governing trial publicity; what purposes the news release identifying certain letter writers served; and whether the rules of professional conduct are vague, overly broad or otherwise failed to provide notice of the conduct required.

Several organizations filed briefs as friends of the Court. The Missouri Association of Prosecuting Attorneys argues prosecutors have a First Amendment right and an ethical duty to communicate truthful facts to the public and should be permitted to continue doing so. The Missouri Press Association argues the rules of professional conduct permit statements of information contained in the public record, and speech regarding matters taking place in court impact the public’s trust in the judicial system. The Missouri Victim Assistance Network argues prosecutors have a responsibility to crime victims and should be permitted to advocate with zeal on behalf of crime victims. Synergy Services Inc. argues prosecutors should be permitted to speak the truth about child sexual abuse to encourage other victims to come forward and to deter future crimes of this nature

The national and state associations of criminal defense lawyers argue the conduct of Zahnd and his subordinates violates the rules of professional responsibility and professional standards for prosecutors and undermines confidence in the justice system; his contacts with the letter writers was to threaten or intimidate them into retracting their letters; and the content of the news release mischaracterized events, included information that was not part of Paden’s criminal case and did not constitute protected speech under the First Amendment.

SC96939_Chief_Disicplinary_Counsel_brief
SC96939_Zahnd_corrected_brief

SC96939_NACDL_and_MACDL_amici_brief
SC96939_MO_Victim_Assistance_Network_amicus_brief
SC96939_Synergy_Services_amicus_brief
SC96939_MO_Ass'n_of_Prosecuting_Attorneys_amicus_brief
SC96939_MO_Press_Association_amicus_brief

The Kansas City Star reported that the court imposed a reprimand.

Platte County Prosecutor Eric Zahnd said Wednesday he may ask the U.S. Supreme Court to review his reprimand by the Missouri Supreme Court for violating certain rules of professional conduct.

Zahnd and his office were accused of intimidating and threatening supporters of a Dearborn man after he pleaded guilty in 2015 to repeatedly sexually abusing a child for at least a decade...

"This case involves important issues of an elected prosecutor’s right to speak truthfully about cases in our courts," he said. "Unfortunately, the Court’s order does not address my contention that my work to stand up for a victim was protected by the First Amendment and the rules themselves. Let me be clear: I never threatened anybody; I simply told the truth."

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/07/a-summary-of-an-oral-argument-from-the-web-page-of-the-missouri-supreme-court-sc96939in-re-eric-g-zahndplatte-countyattorn.html

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