Update: The U.S. Supreme Court on Monday declined to review Platte County Prosecuting Attorney Eric Zahnd's case. The decision leaves intact the Missouri Supreme Court's decision to reprimand the Platte County Prosecutor for his conduct in a child molestation case.
In a statement, Zahnd acknowledged that his request for Supreme Court review was a long shot.
But he said he petitioned the high court "because we believe it raises the vital issue of whether an elected prosecutor can tell the truth in a news release about public information regarding a court case once that case is over."
The story about Zahnd's decision to take his case up to the Supreme Court ran on Aug. 27 and is below.
Platte County Prosecuting Attorney Eric Zahnd, who was reprimanded by the Missouri Supreme Court for his conduct in a child molestation case, is asking the U.S. Supreme Court to review his punishment.
In a petition filed last week, Zahnd says the case involves “core First Amendment rights, including the right of the public to hear true information about matters of public concern – concluded criminal cases – from those in the best position to speak knowledgeably about such matters.”
In May, the Missouri Supreme Court found that Zahnd had violated three attorney disciplinary rules. The court did not issue an opinion explaining its decision.
At issue was the propriety of Zahnd’s conduct after Dearborn, Missouri, resident Darren Paden was sentenced to 50 years in prison in 2015 for molesting his step-daughter over a period of 10 years. Prosecuted by Zahnd’s office, Paden had pleaded guilty to two counts of statutory sodomy.
In a news release after the sentencing, Zahnd identified members of the community who had written letters to the judge asking for leniency on Paden’s behalf. Zahnd described them in the release as “appear(ing) to choose the side of a child molester over the child he repeatedly abused.”
After Paden’s attorney, John P. O'Connor, filed an ethics complaint against Zahnd, Missouri’s Office of Chief Disciplinary Counsel investigated and eventually concluded that Zahnd had committed multiple violations of the Rules of Professional Conduct by seeking to intimidate witnesses. It later recommended that his law license be suspended for at least six months.
Acting on the agency’s complaint, a disciplinary panel consisting of two lawyers and a layperson recommended the less severe punishment of a public reprimand, which was adopted by the Missouri Supreme Court.
“The threat of a public shaming of a non-suspect, non-criminal citizen should not be a tool of the Prosecutor’s Office, used to force citizens to obey its will,” the panel wrote in its decision. “This type of conduct diminishes the public's faith in our governmental institutions, and is prejudicial to the administration of justice.”
Although the Missouri Supreme Court’s reprimand did not affect Zahnd’s ability to carry out his duties, it represented a rare rebuke of a sitting prosecuting attorney. Zahnd, a past president of the Missouri Association of Prosecuting Attorneys, has been the Platte County Prosecutor since 2002, making him the longest serving prosecutor in the county’s history. He is running unopposed in the general election this November.
In his petition to the U.S. Supreme Court, Zahnd says his news release only contained truthful information in the public record and therefore was protected speech under the First Amendment.
The court should review his punishment, Zahnd wrote, “to vindicate” his “right to speak and the public’s right to hear the truth about the functioning of the government, particularly in the conduct of criminal cases.”
Zahnd’s petition is a long shot, since the Supreme Court rarely grants review in attorney discipline cases. One of the more recent such cases, dating to 1991, upheld the limits most states impose on public comments that lawyers can make about pending cases. (While the court upheld those limits, it overturned the reprimand of a Nevada lawyer who had called a news conference to proclaim his client’s innocence of theft charges. The court found that the Nevada rule prohibiting lawyers from making statements outside the courtroom that might prejudice a case was unconstitutionally vague.)
The Missouri Press Association has sided with Zahnd on his First Amendment claim and filed a friend-of-the-court brief on his behalf before the Missouri Supreme Court. But the National Association of Criminal Defense Lawyers and its Missouri chapter, in their own brief, argued Zahnd’s news release had nothing to do with the First Amendment but rather with “reprisal against witnesses for not capitulating and withdrawing their respective sentencing letters.”
“Retaliation and reprisal are not protected speech,” they wrote in their brief. “Further, when the publication was coupled with the threat of withdraw your letter or we will publish your name as a supporter of pedophilia, it is a coercive threat, which has zero expectation of protection.”
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies