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Eric Zahnd

MO Supreme Court to hear case of prosecutor

The Missouri Supreme Court is considering whether a long-serving Kansas City area prosecutor will be punished for targeting letter writers after a court case.  A disciplinary counsel contends Platte County Prosecutor Eric Zahnd violated rules of professional responsibility.

Zahnd publicly criticized letter writers who expressed support for a man who pleaded guilty to sexually assaulting one of his daughters when she was under twelve years of age.

52-year-old Darren Paden, a prominent member of the Dearborn community in Platte County, was given two 25-year terms in prison for statutory sodomy in 2015.

The case deeply divided the tiny town of fewer than 500 residents.

Following the sentencing, Zahnd’s office issued a statement to the media expressing disappointment in community members that supported a defendant who had confessed to sex crimes against a child.

The release identified the people who had written letters and included their current or former employers. Three of the individuals named in the news release claim they were harmed as a result.

The Office of Chief Disciplinary Counsel, which is an agency of the Supreme Court that’s responsible for investigating allegations of misconduct by lawyers, is seeking to discipline Zahnd based on the treatment of those three people.

Prior to issuing the press release, Zahnd or his assistants contacted several of the letter writers.

Zahnd contends his office did so to advise the writers their letters were part of the public record. The chief disciplinary counsel alleges the prosecutor told the letter-writers their names would be included as supporters of child molestation in a news release if the writers did not withdraw their letters.

Arguing for the Disciplinary Counsel before the Supreme Court, attorney Alan Pratzel said Zahnd used the press release to threaten and embarrass letter writers.

“I’m (meaning Zahnd) going to issue this press release if you don’t withdraw your letter,” said Pratzel.  “And then he dropped the hammer on them when they stood up to him and said here comes the press release.  You are supporting a child molester over the victim.  Totally a false statement.  It’s not truthful.”

The circuit court received 16 letters in October 2015 at the urging of Paden’s attorney and father.  Some letters questioned Paden’s guilt, or the victim’s character or both.  Some did not.

Jerry Hagg, a retired President of the Platte Valley Bank, prepared a letter that Paden’s father sent to the Court.

According to court documents prepared by the Office of the Chief Disciplinary Counsel (OCDC), the letter did not contest Paden’s guilt, but said Hagg knew Paden all his life and watched him grow up, become involved in community activities with his church, school, and volunteer fire department and take a leadership role in the fire department.

According to OCDC, another reference letter was written by Donna Nash, a former 33-year Platte County Collector, and her husband Karlton Nash, the owner of Nash Gas in Dearborn.

The Nash’s wrote that they’d watched Paden and his sister grow into well respected, caring adults.  In the letter, they said they prayed that Paden wouldn’t be condemned to a life behind bars and asked the judge to give him an opportunity to prove that he can be a positive valuable member of his community.

In the press release, which detailed the victim’s experience of being scorned by the community and described how Paden admitted to sexually abusing her for 11 years and told her it was “their little secret”, Zahnd included the names of the Nash’s and Hagg.  He referred to them as individuals who wrote letters or testified on behalf of Paden.

According to court documents, both the Nash’s and Hagg reported being disparaged and humiliated in various ways after the press release was distributed.  Before the Supreme Court, Disciplinary Counsel attorney Pratzel said Zahnd unfairly retaliated against the three letter writers.

“A reasonable prosecutor in the same or similar circumstance, would not have threatened and intimidated prior to sentencing, and would not have sent a false press release after sentencing, mischaracterizing these benign letters as supporting pedophilia and child molestation,” said Pratzel.

Representing Zahnd before the high court, attorney Edwin Smith said the Chief Disciplinary Counsel would be setting a dangerous new precedent by punishing the prosecutor for stating public record.

“There is not one case cited by the OCDC where a lawyer after a case is over, spoke the truth about matters of public record, not privacy, not a matter of privacy, speaks the truth that they’ve ever been disciplined,” said Smith.

The closely watched case has drawn the attention of a number of interest groups.  Five Friend of the Court documents have been filed, four of them siding with Prosecutor Zahnd.

The Missouri Victim Assistance Network said if the Disciplinary Counsel’s interpretation of the ethical rules is enforced, it’ll have a chilling effect on prosecutors statewide, and their ability to advocate on behalf of their clients and crime victims in general:

“Prosecutors statewide are responsible for protecting victims of crime utilizing all available measures within the bounds of the law. This responsibility includes not only prosecuting criminals but lending support to victims throughout such criminal prosecution. During the prosecution of crimes, the public has a right to be informed as to the public record being compiled in such criminal prosecutions.”

Synergy Services, a Platt County crisis response, and shelter provider, says it’s important for prosecutors to openly support victims of child sexual abuse when communities fail to:

“It is disturbing, but undeniably true that insular communities, whether small Midwestern towns or the movie industry, often circle the wagons around sexual abusers. Support from the prosecutor in the face of this closing of ranks helps the victim cope with the trauma of the abuse, encourages other victims to come forward and breaks the silence that often perpetuates sexual offenses.”

The Missouri Association of Prosecuting Attorneys thinks prosecutors must be restrained with public comments about those accused of a crime.  But the organization contends prosecutors have a responsibility to speak out about the offenses of those who are convicted:

“To impose the standard suggested by the Office of Chief Disciplinary Counsel (OCDC) would infringe upon the First Amendment rights of the prosecutor and have a chilling effect on prosecutors across the state (and potentially the nation), and would essentially gag them from communicating with the public about the outcome of cases.”

The Missouri Press Association also filed a document supporting the actions of Prosecutor Zahnd.  It argues that reporters, who are not trained to understand technical details contained in many pleadings, need access to prosecutors in order to accurately report court proceedings to the public:

“It is critical that reporters be able to talk to prosecuting attorneys when they have questions about a pending criminal matter. And prosecuting attorneys, wanting to be helpful, tread carefully as they work within the ethical guidelines imposed upon all attorneys, and upon them in particular, to provide the information reporters need.”

The National Association of Criminal Defense Lawyers and the Missouri Association of Criminal Defense Lawyers joined together to submit a Friend of the Court document in support of the Chief Disciplinary Counsel’s proposal to impose sanctions on Prosecutor Zahnd:

“While there is nothing wrong with issuing a press release that relays facts that are actually in the criminal record, that is not what happened in this case. Here, the Prosecutors issued a press release with the purpose of retaliation for not capitulating to the prosecution’s threats, which contained facts beyond the criminal record, and recharacterized background information into sinister support for pedophilia.”

The Disciplinary Counsel is asking the Supreme Court to find that Zahnd violated rules of professional conduct and suspend his law license for at least six months and require him to pay $1,000 in fee and costs.

After hearing arguments Tuesday, it’s not known when the Missouri Supreme Court will hand down a decision in the case.

The high bench can reprimand, suspend or disbar an attorney.

Zahnd had been considered a strong candidate to become the next U.S. Attorney for the Western District of Missouri, the top federal prosecutor in that part of the state.

But former Assistant U.S. Attorney Timothy Garrison was confirmed for that position last Thursday.  He had previously been serving as interim U.S. Attorney since January.