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Free speech or intimidation? Briefs set stage for hearing on Zahnd

Jessica Shumaker//March 29, 2018

Free speech or intimidation? Briefs set stage for hearing on Zahnd

Jessica Shumaker//March 29, 2018

Several outside groups have taken an interest in a clash between a prominent prosecutor’s free-speech rights and the rights of those who publicly support criminal defendants.

The Missouri Supreme Court will hear arguments on May 1 in an attorney-discipline case against Platte County Prosecuting Attorney Eric G. Zahnd.

Last year, the Office of Chief Disciplinary Counsel accused Zahnd of intimidating community members who wrote letters to a Platte County judge in support of Darren Paden, a Dearborn man who pleaded guilty in 2015 to two counts of statutory sodomy. Paden, 55, was sentenced to 50 years in prison.

Fearing the judge would impose a lighter sentence on Paden because of the number of letters received and the prominent citizens who wrote them, Zahnd and his assistant prosecutors worked to persuade Paden’s supporters to withdraw their letters.

Their attempts included using the threat of subpoena to force supporters to testify at Paden’s sentencing hearing, as well as threats that the letter writers would be outed as supporters of child molestation. Zahnd ultimately issued a press release that named the supporters and their employers.

In December, a disciplinary hearing panel found Zahnd guilty of breaking ethics rules prohibiting misconduct and barring lawyers from using means that have no substantial purpose other than to “embarrass, delay or burden” a third person. The panel also found he broke a rule in approving the conduct of an assistant prosecuting attorney.

The panel recommended that he receive a reprimand, but OCDC is seeking a six-month suspension of Zahnd’s law license.

In January, Zahnd formally rejected the panel’s recommendation, which bumped the case to the Supreme Court for review.

‘A clear obstacle’ for prosecutors

DWI refusals refused
Platte County Prosecutor Eric Zahnd announces that his county will being taking warrantless blood samples from suspected drunk drivers. File photo by Scott Lauck

Zahnd’s case has drawn interest from specialty bar groups, a victim’s assistance organization and the Missouri Press Association.

So far, the Missouri Association of Prosecuting Attorneys and the Missouri Victim Assistance Network have filed briefs in support of Zahnd.

In their briefs, the groups say disciplining Zahnd would chill the free-speech rights of prosecutors, make it harder for prosecutors to advocate for crime victims and make it harder for the public to obtain information about the courts through the press.

Tara Cluck, a St. Joseph attorney for the Missouri Victim Assistance Network, said in her brief that Zahnd’s speech was protected by a safe-harbor provision in the ethics rules that allows lawyers to discuss information contained in a public record.

She said a ruling against Zahnd would put prosecutors who release information from the public record at serious risk of disciplinary actions.

“The OCDC has created a clear obstacle to a prosecutor’s duty to zealously advocate on behalf of crime victims,” Cluck wrote. “Prosecutors must be free to obtain and release information which pertains to the sentencing process of criminal defendants.”

Kansas City attorney Jean Maneke, who represents the Missouri Press Association, said the group also intends to file a brief in support of Zahnd. (Full disclosure: Liz Irwin, publisher of Missouri Lawyers Weekly, is a member of the association’s board.)

Maneke said reporters and prosecutors need to be able to talk to each other about cases.

“I think that there was nothing that Eric did that violated the ethics code, and clearly that kind of speech is important for the media and the public to understand what happens in criminal cases,” she said. “I feel very strongly about this case.”

‘It has undermined our system’

Criminal defense lawyers at the national and state level also have jumped into the debate, arguing Zahnd should be disciplined.

They say such a ruling would deter other prosecutors from engaging in similar conduct, which would protect future supporters of criminal defendants from fear of similar abuses and ultimately protect defendants’ due process rights and right to a fair trial.

Ronald R. Holliger of the Holliger Law Group in Blue Springs, a former Western District Court of Appeals judge and general counsel for the Missouri Attorney General’s Office, filed an amicus brief for the national and Missouri chapters of the Association of Criminal Defense Lawyers.

Holliger said Zahnd’s case does not present hypothetical harm — Zahnd was successful in getting one letter writer to withdraw her letter, and at least three letter writers have said they would not be a witness again in a court proceeding.

“This is precisely why Respondent Zahnd’s conduct cannot be permitted to be repeated by other prosecutors,” he wrote. “It has undermined our system and discouraged participation by witnesses going forward.”

Holliger said Zahnd’s press release has nothing to do with the First Amendment and freedom of the press. In this case, the press was free to obtain publicly available information, interpret it and write a story based on the facts.

He added that free speech is not absolute — retaliation and reprisal are not free speech, and neither is tampering with a witness.

“Just as a threat itself is not protected speech, neither should be the statements given to the press in retaliation for the witnesses’ refusal to capitulate to the prosecutor’s demands,” he wrote.

The case is In Re: Eric G. Zahnd, SC96939.

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