One thing is clear in the fallout from Ferguson: Missouri’s municipal courts are in dire need of reform.
The Justice Department has issued a scathing review of Ferguson’s municipal court. The Missouri General Assembly has acted, further limiting the amount of revenue a city can derive from municipal courts. And now, thankfully, the Missouri Supreme Court has taken notice and established a working group to recommend changes to municipal courts.
Many Missourians’ only encounter with the justice system will be in a municipal court. Unfortunately, for far too long, the same protections and procedures that apply in state courts have not been applied to city courts. The legal profession somehow decided that there should be two standards of justice—one for state courts and something less for municipal courts. For that reason, it should come as no surprise that municipal courts can feel like kangaroo courts.
The good news is that there is a straightforward remedy for much of what ills municipal courts: Make lawyers who appear in municipal courts abide by the same conflict of interest rules that apply in other courts. This simple fix will do more to improve the operation of Missouri’s municipal courts than dozens of other necessary but more complicated reforms.
For decades, lawyers have treated municipal courts like a game of musical chairs. A lawyer can serve in a city as the prosecutor one night and show up the next night in a neighboring city as a defense attorney.
For prosecutors like me who operate in state court, the same conduct would be — and should be— a crime. Our legislature has properly recognized that, at worst, corruption is a real risk when lawyers change roles in court as often as they can change clothes. And even if actual corruption doesn’t occur, the appearance of impropriety is obvious. Lawyers need to pick a chair — prosecution or defense.
But for some unknown reason, the Missouri Supreme Court has allowed those conflicts to persist in municipal courts. In the county where I prosecute, a majority of municipal court prosecutors also represent criminal defendants in neighboring courts. That just doesn’t seem right.
Prosecutors have a different role than other attorneys. Prosecutors are the only lawyers whose job is not just to win the case, but to ensure that justice is done. The Missouri Supreme Court’s ethical rules say prosecutors have the special duty to be “ministers of justice.”
State court prosecutors embrace that special role. Prior to the events in Ferguson, the Missouri Association of Prosecuting Attorneys (MAPA) successfully championed legislation to prevent special prosecutors — lawyers who step in when an elected prosecutor has a conflict — from representing criminal defendants in the same judicial circuit.
MAPA has now asked the Missouri Supreme Court to clarify its rules to prohibit municipal prosecutors from also serving as defense attorneys, whether in a municipal or state court. That simple change would go a long way toward restoring confidence in municipal courts, as the public could be confident that city prosecutors were free from the conflicts of interest that currently plague those courts.
It’s long been said, “no one can serve two masters.” It’s high time for the Missouri Supreme Court to apply that common sense declaration to prosecutors in Missouri’s municipal courts.
Eric Zahnd is the Platte County Prosecuting Attorney and past president of the Missouri Association of Prosecuting Attorneys.