Did Platte County Prosecutor Overstep Legal Bounds In Child Molestation Case?
The Platte County Courthouse, ordinarily a sleepy rural outpost, is abuzz these days with intrigue.
That's because a leading candidate to be the next U.S. Attorney for the Western District of Missouri is the subject of an ethics complaint that questions the propriety of his conduct in a sexual abuse case prosecuted by his office.
Platte County Prosecutor Eric Zahnd, who is reported to be a contender for the job of the region’s top federal prosecutor, has denied any wrongdoing. But his office’s conduct has triggered a legal brawl with one of the area’s leading criminal defense attorneys, prompting a cascade of court filings and questions about how certain witnesses in the case were treated.
Many of the court documents are sealed, but a petition filed last month with the Missouri Court of Appeals referred to their contents, including the ethics complaint.
The legal saga dates to August 2015, when Dearborn, Missouri, resident Darren L. Paden pleaded guilty to sexually abusing a girl over the course of a decade, beginning when she was 5 years old.
Through court records and interviews with more than a dozen individuals and lawyers familiar with the case, KCUR has reconstructed what happened and how Zahnd and Paden's lawyer came to be at loggerheads, culminating in the current legal imbroglio.
Letter writers subpoenaed
The case deeply divided the small Platte County town, where Paden’s parents were respected members of the community and Paden was a one-time chief of the all-volunteer fire department and a junior deacon at his church. Some townspeople refused to believe he was guilty and were convinced he was coerced into confessing.
More than a dozen friends and relatives of Paden wrote letters to the judge pleading for leniency. The letters cited his work on behalf of his neighbors, community and church and asked the judge to take that into account at his sentencing.
The letters had little effect: On Oct. 30, 2015, Platte County Circuit Judge James Van Amberg handed Paden two consecutive 25-year sentences, equivalent to a life sentence for the 52-year-old defendant.
But before the sentencing, Zahnd’s office did something highly unusual: It contacted the people who had written character letters on behalf of Paden and told them to get in touch with assistant prosecutor Chris Seufert. When they did, Seufert told them that, unless they withdrew their letters, he would expose them as supporters of a defendant who had engaged in pedophilia.
Zahnd’s office also subpoenaed the letter writers, ordering them to appear at Paden’s sentencing hearing. But when they showed up, none of them were called to the witness stand.
Some of the letter writers contacted Paden’s attorney, John P. O’Connor, and told him what happened. O’Connor, concerned that Zahnd’s office was trying to intimidate witnesses, asked for advice from a former attorney for the Missouri Office of Chief Disciplinary Counsel, the agency responsible for investigating and prosecuting attorney misconduct.
The attorney, Sarah Rittman, told O’Connor he was duty-bound to report what she regarded as clear-cut ethical violations by Zahnd and Seufert to the Office of Chief Disciplinary Counsel.
Reluctantly, O’Connor later told a judge, he did just that. So did a retired Platte County Circuit Judge, Abe Shafer, who represented one of the letter writers and also filed a report about Seufert with the Office of Chief Disciplinary Counsel.
O’Connor declined to comment on his bar complaint. Shafer also declined to comment.
Criminal defense attorneys and legal ethics experts contacted by KCUR say they have never heard of a prosecutor subpoenaing character witnesses and threatening to expose their names unless they withdrew their testimony. It’s not uncommon for people to submit character letters on behalf of criminal defendants before they’re sentenced, but those letters are not typically viewed as an endorsement of the crime.
“It is just one of the most egregious breaches of ethics that I’ve heard a prosecutor do,” said Sean O’Brien, a former chief public defender in Kansas City and later head of what’s now known as the Public Interest Litigation Clinic, which represents clients in death penalty cases.
“I mean, he’s literally threatening people to get them to withhold relevant information from the court.”
O' Brien said it is a violation of due process for a prosecutor to prevent witnesses from disclosing to a sentencing court information that they believe to be truthful and relevant to the court’s decision.
“He should be disbarred for conduct like this,” said O’Brien, now a law professor at the University of Missouri-Kansas City.
Michael Downey, a legal ethics lawyer with the Downey Law Group in St. Louis, said that “if a defense attorney had called in a bunch of prosecution witnesses and said, ‘I’m going to out you for being against my guy,’ there’d be a very good chance the defense attorney would be prosecuted.”
He added: “Subpoenas are supposed to be used to get discovery, and here he’s not looking for discovery, he’s looking to bring in people so that he can intimidate them, which is not proper."
But R. Lawrence Dessem, a legal ethics professor at the University of Missouri, said the subpoenas were aggressive lawyering but didn’t necessarily cross an ethical line. The real concern, he said, was the pressure put on the letter writers and the public scolding after Paden’s sentencing.
“We don't want people in our communities holding back on relevant information they've got out of fear that if they come forward with that relevant evidence, there's a possibility of retaliation from the prosecutor,” Dessem said.
Zahnd, in emailed answers to questions about the subpoenas, categorically denied that he or anyone in his office did anything wrong, but said he was limited as to what he could say about the case.
“I would like to discuss every detail of my office’s interactions with his supporters, but Rule 5.31 states that ‘all proceedings and records’ involving complaints to the bar ‘shall be confidential,’” Zahnd wrote, referring to one of the Missouri Supreme Court’s Rules of Professional Conduct. “That rule applies regardless of whether the complaints are valid or completely baseless.”
Zahnd said he was “firmly convinced that my office handled every aspect of Mr. Paden’s case in a lawful and completely ethical manner that resulted in justice for the victim, the defendant, and the State of Missouri.”
“Generally speaking, I fully appreciate that people who want to provide character evidence for a convicted child predator would prefer to argue for leniency outside the public eye and without being confronted with challenging facts,” Zahnd continued. “But that’s not the way our system of justice works.”
Zahnd pointed to the child molestation case against former U.S. Speaker of the House Dennis Hastert, in which the judge refused to consider character letters without making them public.
“Our country has always believed in open court proceedings and the right to confront witnesses—even if that makes some witnesses uneasy,” Zahnd said.
Zahnd’s office, however, did more than subpoena Paden’s character witnesses. When they refused to withdraw their letters, it publicly shamed them in a news release that was published on the front page of The Landmark, a weekly newspaper covering Platte County, and on the Platte County Prosecutor’s Facebook page.
After recounting the details of Paden’s confession that he abused the girl two or three times a month from 2001 to 2012, the news release stated:
“Nevertheless, many members of the Dearborn community wrote letters on Paden’s behalf following his guilty plea. Prosecutors met with most of them to make sure they understood that Paden had fully confessed to his crimes, yet many of those community leaders continued to stand by Paden.”
The release then listed the names (and some of their occupations or affiliations) of the 16 people who wrote letters on behalf of Paden. One was a former bank president, two were former schoolteachers, three worked for the North Platte School District and another one was a nurse practitioner.
The public shaming had repercussions. In May 2016, Kathie Ousley, a member of the Platte-Clay Electric Cooperative, sought to change the way board members are removed from office after expressing her unhappiness that one of the letter writers, Jerry Hagg, served on the board. The Clay County Courier-Tribune reported that Ousley said she and other board members did not want to be represented by directors they felt were morally corrupt.
Hagg declined to comment. But Darla Hall Emmendorfer told KCUR that her character letter had been cited disparagingly in places as far away as Pennsylvania.
“What I did not expect was that the prosecuting attorney would get hold of my letter and use it the way they did use it,” she says.
Emmendorfer said she received a phone call from Zahnd’s office asking her to come to the office the next day. When she did, she said, she was pressured by Seufert to rescind her letter.
“He said, ‘How can a good mother support a child molester with the evidence that we have like this?’”
“It’s still emotional for me,” Emmendorfer said, “because it’s kind of a scary thing to think that a prosecuting attorney would want to win, or put this case on their badge of honor as making a conviction without what I felt was due process. And also with using the people who have a right to tell the judge what they think.”
The repercussions have now spread to other cases being prosecuted by Zahnd’s office.
In June 2016, while O’Connor was in the Platte County courthouse on an unrelated case, Zahnd, Seufert and another Platte County prosecutor asked him to meet with them in front of Van Amberg, the Platte County Circuit Judge who presided over the Paden case. At that meeting, they told Van Amberg about O’Connor’s bar complaint and said they didn’t trust him.
They then told Van Amberg that they would only communicate with O’Connor if the exchanges with him were recorded or on the record before a judge.
For O’Connor, who has practiced for 35 years and is one of the Kansas City area’s most respected criminal defense attorneys, those restrictions posed a huge problem. Besides Paden, O’Connor at the time represented five other defendants in criminal cases in Platte County – one of them a death penalty case – and he contended he couldn’t represent them effectively under those circumstances.
As a result, O’Connor’s clients moved to disqualify Zahnd’s office from handling their cases and asked that a special prosecutor be appointed instead. The Missouri Supreme Court appointed Glen Dietrich, a retired Nodaway County judge, to hear the motions after judges in Platte County were recused.
Dietrich, however, didn’t disclose that he had been a law partner of Zahnd’s uncle, Larry Zahnd, for 19 years. (Larry Zahnd died on March 28 at age 83.) O’Connor learned of the relationship only weeks later and promptly moved to have Dietrich recused.
Another judge appointed by the Supreme Court, Teresa Bingham, heard the recusal motion and in December she denied it. In her four-page ruling, she concluded: “In this matter, the proceedings as to the Motion for Change of Judge for Cause were open, and this Court finds that a reasonable person would NOT (caps in original) have a factual basis to find the appearance of impropriety or have any reason to doubt the impartiality of Judge Glen Dietrich.”
Motions seek to disqualify prosecutor
Meanwhile, Dietrich had sealed some of the records in the motions seeking to disqualify Zahnd’s office from handling cases involving O’Connor’s clients. Those motions were heard on Jan. 25 during a session in the Platte County courthouse that lasted all morning.
At the hearing, Zahnd argued that O’Connor bore an animus toward his office and was merely trying to gain a tactical advantage on behalf of his clients.
“If the court were to grant Mr. O’Connor’s motion, I suspect that we will see defense attorneys all across the nation, particularly in capital cases, intentionally creating one-sided animosity, making complaints and filing motions to disqualify, simply to make serious capital litigation harder, longer and more expensive by replacing prosecutors whenever they have a chance,” Zahnd told Dietrich.
As proof of O’Connor’s hostility, Zahnd said that O’Connor had repeatedly used profane language against Seufert in the past.
O’Connor countered at the hearing that he harbored no animosity toward Zahnd or his office but was obligated as an officer of the court to file the bar complaints against them.
Although he wasn’t allowed to make direct reference to the bar complaints – Dietrich had ruled they were confidential – O’Connor was clearly referring to them when he said that filing them “was not something I set out to do personally.”
Dietrich took the motions to disqualify Zahnd’s office under advisement, and on March 16 he handed down a 25-page decision finding that O’Connor and his clients had failed to show Zahnd’s office could not treat them fairly or impartially.
O’Connor, who otherwise declined to be interviewed on the record while the matter remains pending, said, “I respect the ruling of the court. However, we intend to appeal the decision of the judge both to not recuse himself and the judge’s order not disqualifying the prosecuting attorney’s office.”
That happened on March 27, when O’Connor’s clients took the matter up with the Missouri Court of Appeals. Four days later, without explanation, the court denied their petition. The clients are now considering whether to take the matter up with the Missouri Supreme Court.
In the meantime, questions continue to swirl. Zahnd, who was first elected as the Platte County Prosecuting Attorney in 2002, has been re-elected three times since then. He is the longest serving elected prosecutor in the Kansas City area and was named Prosecutor of the Year in 2014 by the Missouri Association of Prosecuting Attorneys, an organization he served as president.
Criminal defense lawyers say they’re mystified by the subpoenas Zahnd’s office issued, not only because they seemed to serve no real purpose but because they could violate various Rules of Professional Conduct – the ethical strictures that govern attorney conduct – and even, in an extreme scenario, amount to witness tampering, which is a criminal offense.
Lawyers and legal ethics experts say that lawyers are obligated to present mitigating evidence on behalf of their clients after they have entered a guilty plea. That includes letters like the ones written on behalf of Paden.
“These individuals were entitled to be heard and they were entitled to address the court on their friend or family member or acquaintance’s character, so certainly what they had to say is relevant,” said O’Brien, the former public defender who now teaches at UMKC. “Whether the judge was moved by that is a whole different consideration.”
For now, the bar complaints filed by O’Connor and Shafer remain confidential. If the Office of Chief Disciplinary Counsel determined that an investigation was warranted, Zahnd will have been given a chance to respond and O’Connor to reply.
The records only become public if there’s a finding that a Rule of Professional Conduct was violated and the matter is taken up by the Missouri Supreme Court. Only the court is empowered to reprimand, suspend or disbar lawyers.
By all accounts, Zahnd is now poised to reach what many prosecutors see as a career pinnacle: a job as U.S. Attorney, the top federal law enforcement officer in the region. The position has been vacant since President Trump ordered all holdover U.S. Attorneys to resign in March. If the recent past is any guide, it may be months before a candidate is nominated, vetted, appointed and confirmed by the U.S. Senate.
Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.