Prosecutor: Domestic Violence One of Most Under-Reported Crimes

​Story and Photo by Joe Gamm | Jefferson City News Tribune​
 
Domestic violence reports in Jefferson City dropped significantly (about 40 percent) from 2019-20, according to data from the Missouri Highway Patrol.
 
And reports in Cole County overall remained flat, the data show.
 
That would be encouraging, but what’s more likely is that domestic assaults actually increased — significantly, Cole County Prosecuting Attorney Locke Thompson said.
 
Overall statewide, reports of domestic assault soared by more than 60 percent.
 
The data showed 188 offenses (assault, battery, coercion, harassment, sexual assault or unlawful imprisonment) reported in Jefferson City in 2020, which was down from 314 in 2019. In 2018, there were 272.
 
However, the pandemic has forced spouses, partners, families, relatives and close friends to spend more time together. Sometimes that can be a bad thing.

“What I think we saw — what we did see — was an increase in more first-time offenses, but a decrease in the repeat offenses. The reporting was less,” Thompson said.

Why is uncertain. However, Thompson points out that domestic violence is one of the most under-reported crimes his office contends with.

Despite fewer reports, domestic violence continues to require a volume of prosecutors’ time. Enough so, that Thompson’s office applied for and received a federal Violence Against Women Act grant, which pays for the majority of an assistant prosecutor’s salary. The grant allows the county to dedicate an assistant prosecutor full-time to handling only domestic violence cases.

His office designated Assistant Cole County Prosecuting Attorney Miranda Loesch as the domestic violence prosecutor.

“She handles all of those cases,” Thompson said. “She’s got a significant caseload. I haven’t run her specific numbers for a little bit. But, you’re talking over 300 cases that she’s got.”

Prosecuting the offenders

Victims of domestic violence are encouraged to call 573-634-6400 to file a report. More information is available on the Cole County website, colecounty.org/469/domestic-violence.

Law enforcement agencies do a very good job of investigating reports of abuse, Thompson said.

Anytime law enforcement produces a probable cause statement, his office begins reviewing the case. In situations where the safety of alleged victims is in question, there is a little more urgency.

Law enforcement tries to assure people who do come forward with allegations are as safe as can be, he said.

The office connects alleged victims with resources, including the Rape and Abuse Crisis Service.

“But, obviously, the Rape and Abuse Crisis Service can only take so many people at a time,” he said. “It’s a difficult situation.”

In many cases — in which the victims aren’t in immediate danger — the office is able to collect reports and photographs, and review them before making charging decisions, he said.

At that point, the case will go before an associate circuit court judge or go to the Cole County Grand Jury.

Evaluations are done on a case-by-case basis.

“If it’s a dangerous offender, we try to make sure we handle that properly,” Thompson said. “If we think prison is the appropriate answer, we try to make sure that happens. But at the end of the day, what we want to try to do is make sure that victim is safe going forward.”

Unfortunately, he said, victims may oftentimes be uncooperative, if not outright hostile toward prosecutor’s office as it tries to prosecute the case.

“That’s part of the cycle of domestic violence that we want to try to find a way to break,” he added.

In cases where the prosecutor’s office determines the offender should serve probation, rather than prison time, it requires defendants to complete the Missouri Batterer Intervention Program (BIP).

Changing the narrative

The BIP, developed in conjunction with the Missouri Coalition Against Domestic and Sexual Violence (MCADSV), is a component of a coordinated community response intended to hold batterers accountable for violence and abuse. It includes community education, building awareness that results in a zero-tolerance response to domestic violence.

“Communities need to develop and maintain community responses that bring together all organizations and systems that have contact with survivors or perpetrators of domestic violence,” according to standards for BIP on the Missouri Department of Public Safety website. “The primary method of intervention shall be group discussions, led by trained co-facilitators, using an established curriculum that includes strategies to hold the offender accountable for the violence in the offender’s intimate relationship.”

Discussions of violent and/or coercive behaviors during group sessions help identify and confront offenders’ controlling behaviors, the program standards state.

Community leaders have developed a Cole County Domestic Violence Response Team — a partnership between the prosecutor’s office, Lincoln University, RACS, the Cole County Sheriff’s Office and the Jefferson City Police Department.

The team’s goal is to create a program that specifically addresses the issue of domestic violence, Thompson said.

Law enforcement leaders would like to see the county initiate a Domestic Violence Court, Cole County Circuit Judge Cotton Walker said.

The county already has four treatment (alternative) courts — DWI Court, Adult Drug Court, Veterans Court and Co-Occurring Treatment Court (for people with dual diagnoses of substance use disorder and mental health disorders). Walker supervises the treatment courts.

There are a number of domestic violence, or domestic abuse, courts that might act as models for such a court in Cole County, Walker said.

Kansas City and St. Louis each has a domestic violence treatment court that the U.S. Department of Justice has named a mentor court. The Kansas City Municipal Domestic Violence Court (KCMDVC) has received a federal grant to help train other courts around the nation how to create what is known as a compliance docket.

Courts establish compliance dockets to supervise high-risk offenders. The dockets are intended to improve victim safety and hold offenders accountable through increased supervision and a holistic approach toward their needs, according to the KCMDVC brochure.

Breaking the cycle of violence

“Our treatment court administrator and I are communicating with St. Louis County,” Walker said. “They are hosting a virtual open house (soon). We’re going to continue to research it and work with our prosecutors to come up with the best way to reduce recidivism and reduce caseloads.”

Walker said the coordinator of the St. Louis court contacted his office Wednesday last week, beginning preparations for the open house.

It’s not a short-term process, he continued.

“We want to take the time to do it right. We want to take the right approach,” he said.

Most of the administrators of the county’s treatment court recently attended a state conference on all treatment courts, Walker said.

They discussed successes and failures.

A recent failure was the Domestic Abuse Court in Greene County.

The Southern District of the Missouri Court of Appeals in September 2019 ordered the county to halt the court permanently because domestic abuse courts hadn’t been established under Missouri law.

There were several mistakes in that program, Walker said.

However, Walker still feels confident a domestic violence court is a reachable goal.

“It’s obviously something that is important, because like some of the other types of cases that come to treatment courts, those who have one offense often have more than one offense,” Walker said. “It’s a perfect type of case to explore, trying to get a specialty court to address it.”

Much like people who are found to be driving while intoxicated, if a person gets a second DWI, they’re likely to get a third, Walker said.

That makes them “high risk, high need,” he said.

“It really is an effort for community wellness,” Walker added.

Creating a domestic violence court will be challenging, Thompson said, because it is a victim-centered violent crime, while other courts deal with crimes that (for the most part) are victimless.

“So, one thing we want to try to make sure we do is to get those people — who are caught as victims — out of that cycle,” he said.

Judges have also mentioned beginning with a domestic violence docket, a smaller step than a treatment court, Thompson said.

That way, the cases take place in the same settings and the courts can look at cases through the course of a morning or afternoon.

Missouri and domestic violence

A little more than a decade ago, Missouri took steps to curb domestic violence. In 2010, the Attorney General’s Task Force on Domestic Violence made numerous legal recommendations to reduce violence and protect victims.

Then-Gov. Jay Nixon signed the majority of the recommendations into law the following year after it passed unanimously through the General Assembly, according to Attorney General Eric Schmitt’s website, ago.mo.gov/criminal-division/public-safety/domestic-violence.

Among other things, the new law made it easier to get protection orders and to renew the orders. It required law enforcement to enter information, including information about child custody, into the Missouri Uniform Law Enforcement System within 24 hours of changes.

It added domestic violence to offenses (with abuse or stalking) for which the state issues ex parte orders of protection. It allowed courts to investigate whether termination of protective orders are voluntary.

The new law added victims’ schools or places of employment to places where protection orders are in effect. It included some automatic renewals.

It added communication media to the ways that respondents may not communicate with alleged victims.

The law made it a felony for someone who has been found guilty of violating an ex parte order within the past five years to violate another ex parte order.

Chris Nuelle, press secretary for the Missouri Attorney General’s Office, said AG involvement in domestic violence cases is limited.

“We do prosecute certain domestic violence cases, but we’re limited in our jurisdiction as we don’t have original criminal jurisdiction,” Nuelle said. “A local prosecutor would have to invite us in, which does happen.”

And, the AG defends every single domestic violence conviction in Missouri through appeals, he pointed out.

Additionally, the AG assists with the Missouri Office of Prosecution Services in its domestic violence training for local prosecutors.

Federal laws intended to decrease domestic violence also are at play in Jefferson City.

An example is that all schools that receive federal funding are required by Title IX to respond to intimate partner violence, sexual violence or stalking.

The federal government requires those institutions to offer training and efforts to assure students are aware of their rights, said Zakiya Brown, Lincoln University Title IX coordinator.

The then-President Donald Trump administration published new regulations for Title IX in August, Brown said.

“We must increase awareness, reduce incidents and offer remedies,” she added.

The focus for Title IX has been getting students to be more aware of their options and to make them more comfortable coming forward to report incidents, Brown said.

She’s trying to change the culture around trust, she added. And letting students know they can speak to her if they think they need help.

“Can (students) trust the institution to remedy, prevent and stop the incidents from happening? With that, what we have done is partner with student organizations to host conversations around healthy relationships,” Brown said. “Helping them identify signs of abuse whether physical, mental or emotional.”

Missouri Attorney General Eric Schmitt created a public safety announcement about a year ago that focuses on the risks created by isolation caused by the coronavirus.

“If you are trapped,” Schmitt says in the PSA, “Know that there are resources available to help.”

And he reminds viewers the national hotline for domestic violence and abuse is 1-800-799-7233 or hotline.org.

“Please remain vigilant in looking out for families friends and neighbors,” he said. “With everyone’s help, we can get help to those who need it most and get through this crisis together.”

Cole County Treatment Program is Changing Lives

Cole County Circuit Judge Cotton Walker congratulates Mandi Peters on her graduation from Veterans Treatment Court during a celebrat​​ion Thursday night at McClung Park. Judge Pat Joyce, who began the treatment programs in the circuit courts, is at right. Peters was one of nine people honored for completing treatment programs offered by the courts.

 

Story and photo by Jeff Haldiman | News Tribune

A celebration was held Thursday night for the latest graduates of one of the four treatment programs offered by the Cole County court system.

Of the nine graduates honored at McClung Park, seven were in the DWI Court, one was in the Veterans Court and one was in the Adult Drug Court.

Katie Doman, Cole County treatment court administrator, said the Adult Drug Court was the first alternative court in the county in 1999, followed by the DWI Court in 2011 and then a Veterans Court in 2014.

The Alternative Treatment Program was started by former Presiding Judge Pat Joyce, who retired from the bench at the end of 2020. More than 600 graduates have gone through these courts.

The fourth and newest alternative court was started in August 2019 by Cole County Judge Cotton Walker, who was associate circuit judge at the time. He took over the alternative courts after Joyce retired. Known as the Co-Occurring Treatment Court, Walker said this is for individuals who have substance abuse disorder diagnoses and mental health disorder diagnoses.

“These are folks who, if they don’t get the proper help, will continue to be in the criminal court system,” Walker said. “We want to get them the mental health help they need so, long after they graduate, they understand how they can take care of themselves. Statistically, treatment courts are the most reliable way to reduce recidivism.”

For fiscal year 2021, Doman said, the Cole County Treatment Court programs received $146,167 from the state’s Treatment Court Resource Fund, which is overseen by the state Treatment Court Coordinating Commission. The funds are used to cover the cost of treatment services, drug testing and other services for the participants in the program.

There are currently 26 people in the Adult Drug Court, 11 people in the Co-Occurring Court, 31 people in the DWI Court and seven people in the Veterans Court.

Shawna Davis, of Jefferson City, was a DWI Court graduate who said she was in a “bad place” when she started the program. Now, she says her life is in a better direction as well as the lives of her family.

“If you are really dedicated to the program and to your sobriety, you will take those extra steps to continue to further yourself in life,” Davis said.

“The referrals for treatment courts are increasing now that more criminal court cases are able to be processed due to less restrictions related to the COVID pandemic,” Doman said. “Treatment services are still a combination of in-person and virtual services. Drug testing has continued the entire time during COVID with additional safety precautions.”

Doman said the programs are post plea, meaning participants are coming into the programs at the conclusion of their court case, and usually, it is a condition for them to meet their requirements while on probation.

“Assessments are so important in the alternative program so we aren’t wasting money and getting the people in the right courts,” she said. “We do try and cast a wide net because we want to increase the number of people so we can benefit the whole community.”

Doman said they get referrals from the pre-trial assessment program, the public defender’s office, private attorneys and probation officers.

“Judges even make referrals and so does the prosecutor’s office,” Doman said. “For the Veterans Court, we regularly get referrals from the Veterans Administration.”

“I’m very grateful for the people who took the time to help me get to where I’m at today,” Davis said. “I lost everything to alcohol. I’m a five-time DWI offender, but for the last year and three months, I’ve been sober, which is the longest I’ve ever been sober, and I owe it all to this program.”

Doman said they try and target high-risk persons. That means they are at high risk for re-offending.

“They wouldn’t be successful in a traditional probation program and need more supervision,” Doman said. “A high-need person is someone that’s been diagnosed with a substance disorder or mental health diagnosis. The assessments we give to defendants identify objectively their needs.”

Doman does assessments as do treatment providers. If a person has been found to be a violent offender, the treatment courts do not usually handle them.

“We don’t want to over-supervise them but give them just what they need to stop offending and start living a normal life,” Doman said. “There’s no way to just look at a piece of information and know they could be successful.”

Doman added it’s a team approach to monitor the success of those in the treatment courts with the judge, prosecutor’s office, defense counsel and probation office all involved. The final decision always lies with the judge as long as they see the person wants to get better.

Mandi Peters is a graduate from the Veterans Court. After completing her recovery, she decided to give back and went through training to become a certified peer specialist. She now can use her personal experience with her substance use disorder and her recovery to work with others with similar issues.

“Most of my adult life I was in the throes of addiction — I even died once,” Peters said. “The judge told me I either successfully complete this program or I was going to prison. I was so tired of hurting and hurting the ones I loved, and I was ready for a change.”

Those in the alternative program come into court more regularly than someone on probation. Participants also have to be randomly drug tested.

“We know our folks need this because they have a disorder,” Doman said. “It’s just to hold them accountable. It’s not done to just find them doing something wrong. We are working on changing a person’s behavior and giving them space for that to happen. A lot of these folks have been hopping from place to place. We get them on a stable footing.”

When a person starts the alternative program, they are asked to stay clean for 14 days and come to court once a week. The shortest time a person could be in the program is 14 months. They may have a relapse, and that could mean they stay in the program longer. Most go through a sustained 16-18 months of treatment.

“I got clean and I slowly started feeling better,” Peters said. “People I loved started talking to me again and believed in me even after everything I put them through. I have my family back, a good job and am heading back to college to finish my degree in psychology.

“For anyone coming into the program, just take it one day at a time and don’t be afraid to ask for help,” she said.

Supreme Court Expands Meaning of ‘Seizure’ Under 4th Amendment

​​The Supreme Court on Thursday expanded the Constitution’s protection against an “unreasonable seizure,” ruling that a person who is shot by a police officer may sue, even if he or she was able to drive away without actually being detained or held.

Chief Justice John G. Roberts Jr., speaking for a 5-3 majority, said the key issue is whether the police used “physical force” in an attempt to arrest or restrain someone.

“We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued,” he said in Torres v. Madrid.

The court’s ruling gives more legal protection to fleeing suspects and others who are injured trying to escape officers. In the past, judges have often held that claims for excessive use of force and an “unreasonable seizure” are limited to situations where officers had physical control over a suspect.

Thursday’s ruling revives a lawsuit brought by a New Mexico woman who said she was wrongly shot when officers arrived at her apartment complex planning to arrest another person. When the woman, Roxanne Torres, saw the officers, she believed they were armed criminals trying to carjack her and tried to drive away. She was shot several times.

Her suit alleging an unreasonable seizure was thrown out by lower courts on the grounds that she was not “seized” because she got away.

Roberts noted she would still have to prove the police action was unreasonable.

“The Fourth Amendment does not forbid all or even most seizures — only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement,” he wrote.

In dissent were Justices Neil M. Gorsuch, Clarence Thomas and Samuel A. Alito Jr.

Gorsuch called the court’s opinion “novel” and “mistaken.” The majority “holds that a criminal suspect can be simultaneously seized and roaming at large. … In two centuries filled with litigation over the Fourth Amendment’s meaning, this court has never before adopted the majority’s definition of a ‘seizure.’ Neither the Constitution nor common sense can sustain it.”

In recent years, the court has been sharply criticized for shielding police from lawsuits over the use of excessive force, often by giving officers a “qualified immunity” when the law was not clear. Thursday’s decision does not directly back away from the doctrine of qualified immunity, but it expands the law allowing for claims against officers.

Elizabeth Wydra, president of the progressive group Constitutional Accountability Center, called the ruling “a significant victory that signals the potential both for accountability under the Fourth Amendment, as well as for cross-ideological majorities of the court to follow the Constitution’s text and history.”

Justice Brett M. Kavanaugh cast a key vote to form the majority, which included liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Justice Amy Coney Barrett took no part in the case, which was argued in October before she took her seat.

 
By David G. Savage​ | ​Los Angeles Times​

Traffic Stop for a Noise Violation Leads Supreme Court to Consider a Big Expansion of Warrantless Entries

One late October night, Arthur Lange was driving home in Sonoma County, California. Music played loudly out his open windows and he honked his horn a few times. The noise alerted CHP Officer Weikert. He followed Lange, intending to stop him for “excessive sound amplification” and “honking without justification,” both minor infractions.

Officer Weikert followed Lange at a distance off the main road and through several turns in his neighborhood. When Lange slowed to use his garage door opener, Weikert activated his lights. Lange turned into his driveway four seconds later and entered his garage. Weikert parked in the driveway, walked up and put his foot under the garage door just as it was about to close, causing it to reopen. He entered the garage and asked, “Did you not see me behind you?” Lange replied he hadn’t. Weikert asked about the honking and music and for Lange’s license and registration.

Weikert smelled alcohol, observed bloodshot eyes, heard slurred speech and had Lange perform sobriety tests. Lange was arrested for DUI and a blood alcohol test measured .245. The county DA charged Lange with a misdemeanor DUI and a noise infraction for the loud music.

IN THE LOWER COURTS

The defense moved to suppress the evidence obtained after the officer entered the garage, arguing it was a prohibited warrantless entry into Lange’s home.

The prosecutor responded the entry was lawful because the officer was in “hot pursuit” based on probable cause that Lange had committed the misdemeanor of willfully failing or refusing to comply with a lawful order, signal, or direction of a peace officer. The state trial and appeals court sided with the prosecution.

THE LAW

“Exigent circumstances” is a long-recognized exception to the Fourth Amendment’s warrant requirement. Whether exigent circumstances exist – like the imminent destruction of evidence or danger of harm to a person – is often a case-by-case decision. But the Supreme Court has repeatedly found that “hot pursuit of a fleeing felon” categorically establishes exigent circumstances.  

State and lower federal courts are split on whether the “hot pursuit” exception to a warrant includes misdemeanors. Accordingly, the Supreme Court accepted this case and heard oral arguments on February 24, 2021.

I confess I initially balked at the prosecution arguing that a tepid pursuit for a misdemeanor they only thought up after-the-fact justified warrantless entry into a home. Then I harkened on my days as a prosecutor and recalled that saving a conviction for a DUI three times over the limit could ignite creative arguments. Apparently, the California appellate attorney also balked because he abandoned the misdemeanor argument and tried to save the conviction with a “good faith exception.”

IN THE SUPREME COURT

This case caused quite a hubbub amongst numerous divergent groups. As best I could count, there were nineteen amicus curiae (“friends of the court”) briefs filed. These are filed by folks other than the parties, arguing one side or the other of the legal issue. Because the court decides whether to accept them, the Supreme Court must’ve thought all these briefs offered some insight. That’s a lot of input.

The amicus curiae groups ran quite a gamut. They included the ACLU, Fraternal Order of Police, National Association of Criminal Defense Lawyers, several gun groups, the states of Illinois, Alabama and Ohio, a legal scholar, MADD and a lawyer the Supreme Court especially requested to brief and argue a position even more expanded than what California asked.

The case also made for strange bedfellows, uniting the ACLU with gun groups, albeit for different reasons. The gun groups argued expanding the exception could have the unintended consequence of increasing firearm-related injuries. (I trust your imagination can fill in how that might occur.) The ACLU focused on privacy. Both the ACLU and gun groups expressed concern the police would use pretextual traffic violations or minor misdemeanors to circumvent the Fourth Amendment’s warrant requirement.

Four different attorneys made oral arguments for a range of rulings:

Lange’s attorney urged the justices to reverse his conviction and adopt a rule that police pursuing a suspect should always have to get a warrant to enter the home unless there is a genuine emergency requiring no delay – irrespective of whether the offense was a felony or misdemeanor.
California took an unusual position. Contrary to its victory in the lower courts, it argued against a categorical rule in misdemeanor pursuits. It said Officer Weikert was not justified entering Lange’s garage, but the DUI conviction should stand because the officer entered based on a “good-faith” reliance on state legal precedent. The state did assert police should be categorically permitted to pursue a felony suspect into their home.
Because California did not defend the lower court’s ruling, the justices appointed a lawyer for that purpose. She argued for a rule that would allow police to pursue a fleeing suspect into a home without a warrant regardless of the underlying offense.
An assistant U.S. solicitor general, arguing on behalf of the United States, pressed the justices to affirm the state court’s ruling. At a minimum, she contended, there should be a general presumption police can follow someone they believe committed a misdemeanor into a home without a warrant.

THE SUPREME COURT’S REACTION

One theme that emerged from the justices’ questions was how difficult they found the task before them. (Try being the street cop trying to figure this out in the field!)

Justice Roberts observed a categorical rule distinguishing between felonies and misdemeanors was problematic – a DUI could be a misdemeanor or a felony, depending on priors.

Justice Breyer noted that a misdemeanor in Massachusetts could include serious offenses with sentences over two years, like reckless driving resulting in death, while California reserves misdemeanors for minor offenses.

Justices Sotomayor and Kagan questioned whether it wouldn’t be more appropriate to decide all warrantless entries on their circumstances – given some felonies, like white-collar crimes, pose no urgency, while misdemeanors like domestic violence can.

Justice Gorsuch asked why they should expand the warrant exception to misdemeanors now when the framers of the Fourth Amendment hadn’t.

Three justices questioned whether a true “hot pursuit” and flight might not present an exigency regardless of the underlying crime, given the suspect’s ability to procure a weapon or do other harm. The lawyer appointed by the court agreed but urged the justices to adopt a categorical rule, so police and courts weren’t having to make case-by-case determinations.

WHAT’S A COP TO DO?

If this is tough for the nine justices, what’s a cop in the street supposed to do until this case is decided?

Make sure you know the current law in your jurisdiction for a warrantless entry when pursuing a suspect. Ask your local prosecutor for guidance.
Tune into Police1. A decision in Lange is expected by the end of June. I’m hoping but not betting it will clarify things. Regardless, I’ll be writing about it.

Take care and thank you for your service.

By Val Van Brocklin | Police1.com


About the author
As a state and federal prosecutor, Val’s trial work was featured on ABC’S PRIMETIME LIVE, Discovery Channel’s Justice Files, in USA Today, The National Enquirer and REDBOOK. Described by Calibre Press as “the indisputable master of entertrainment,” Val is now an international law enforcement trainer and writer. She’s had hundreds of articles published online and in print. She appears in person and on TV, radio, and video productions. When she’s not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Visit Val at www.valvanbrocklin.com and info@valvanbrocklin.com

Supreme Court Comment Raises Concerns for Cannabis Practices

Dan Viets did more than almost anyone to make medical marijuana legal in Missouri. Now he’s wondering how much longer it can remain part of his practice.

Viets is sounding the alarm among attorneys about a comment to Missouri’s Rules of Professional Conduct that the Missouri Supreme Court published with little fanfare last year. The comment to Rule 4-1.2, issued on June 30 and effective July 1, says lawyers assisting a client cannot do something that would violate federal law or “counsel or assist the client as to how to perform an act that would violate federal law even if that conduct would be lawful under state statutory or constitutional law.”

In a separate paragraph, the comment adds that lawyers “may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent.”

“Withdrawal from the representation, therefore, may be required,” it says.

The comment makes no specific mention of cannabis, but it appears to undercut the assurances built into the amendment to the Missouri Constitution that legalized the substance for medical purposes. The amendment, which voters approved in 2018, bars discipline against attorneys for any action “that is no longer subject to criminal penalties under state law pursuant to this section,” including legal assistance to those involved in cultivation, sale and use of medical marijuana.

Federal law still prohibits marijuana, but federal authorities have refrained from taking action in states that have legalized or decriminalized it. Viets, who chaired the committee that drafted and helped to successfully pass the amendment, said it’s “remarkable” that the Supreme Court is threatening to discipline attorneys for conduct that is protected by the state constitution based on violations of federal law that the federal government itself isn’t actively enforcing.

“We all thought that the Supreme Court was bound by the constitution, like we all are. Now the Supreme Court tells us they are not bound by the constitution, and that’s what’s striking,” he said.

Beth Riggert, the Supreme Court’s communications counsel, declined to comment on the meaning or origin of the comment. The Columbia-based attorney said he has requested a formal advisory opinion from the Supreme Court Advisory Committee to clarify the issue.

“If they say that the comment means what it says, then I think I’m going to have to withdraw from those appeals that I’m handling, and I think every other lawyer who cares about keeping his license in good standing would do likewise,” Viets said.

As with most rule changes and comments, the court’s June 30 order was published on its website and in the Journal of The Missouri Bar and the South Western Reporter. Otherwise, it appears to have attracted little attention at the time. Viets said he became aware of the change and its implications just a few weeks ago.

Although the comment doesn’t change the rule itself, the comment would shape its interpretation and application.

“It’s not really a rule, but it says ‘Watch out,’ because you might be violating this rule,” said Michael Wolff, a former Missouri Supreme Court judge who argued in favor of the 2018 amendment. “And you have to assume, especially given when they did this, that the Supreme Court meant what it said.”

Chief Disciplinary Counsel Alan Pratzel didn’t respond to an email asking if any disciplinary cases have been filed based on the recent comment. Viets said he isn’t facing any such discipline and isn’t aware of any attorney who is.

As Missouri Lawyers Media previously has reported, the ethical parameters of medical cannabis legal practices have been ambiguous from the start. In 2019, Missouri’s Legal Ethics Counsel issued a pair of informal advisory opinions involving legal work for the medical marijuana industry, both within Missouri and in other states that have similarly legalized cannabis.

Both opinions were withdrawn in the wake of the Supreme Court’s July 1 rule comment. The now-defunct guidance outlined instances in which attorneys could provide legal services to medical marijuana operations, but it also cautioned attorneys not to assist with conduct they know is criminal or fraudulent and that “if Attorney’s assistance would constitute a criminal act, Attorney’s conduct also could be found to violate” the rules of professional conduct.

In the wake of the cannabis amendment, many Missouri lawyers and law firms jumped into the emerging practice. In 2019, Missouri Lawyers Media honored 15 firms with medical marijuana practices as part of its annual Top Legal Innovation Awards. Honorees ranged from small operations to the largest firms in Missouri, including Armstrong Teasdale, Evans & Dixon, HeplerBroom, Husch Blackwell, Shook, Hardy & Bacon, Stinson and Thompson Coburn.

Those firms’ websites continue to advertise cannabis practices, some of which involve other states. F​​irms asked about their awareness of or potential concerns about the rule declined to comment or didn’t respond to requests for comment.

Wolff said the ultimate solution to the dilemma is for the federal laws that criminalize marijuana to be changed or repealed.

“The answer to this is really in the United States Congress,” he said.

 
​By Scott Lauck | Missouri Lawyers Media molawyersmedia.com​

Massive SolarWinds Breach Poses Risk to Law Firms, Courts as Well as Businesses

Since mid-December, attorneys who advise clients on cybersecurity matters have been busy responding to a massive breach of popular IT network-monitoring software affecting large swaths of the federal government and the Fortune 500.

Experts also warn that law firms and the courts are likely to be affected by the breach and should beef up their cybersecurity as well.

On Dec. 13, software giant SolarWinds first acknowledged that its Orion platform had been hacked earlier in 2020, leaving its clients vulnerable to data breaches as well. The following week, former Secretary of State Mike Pompeo placed blame for the attack on Russia.

Since then, Glenn E. Davis, an attorney for HeplerBroom in St. Louis and leader of the firm’s HBCyberGroup, has been educating clients about the breach and ensuring they’re taking steps to protect their data.

He said Orion is widely used: SolarWinds has more than 300,000 clients, including the U.S. government and the majority of Fortune 500 companies. The company already has notified 32,000 clients who were directly affected by the breach as part of mitigation efforts.

Davis said it’s important for attorneys to understand that the breach was not just a suspected nation-state attack on the U.S. government but a threat to businesses as well.

“While the scope of the intrusion remains unclear, it is clear it goes far into the private sector,” he said.

Hackers have penetrated “virtually every U.S. agency you can think of,” including the Office of the President, the U.S. Secret Service, the Federal Reserve and NASA, he said.

Malware, or malicious software, from the attack also has surfaced in companies such as Visa, McDonalds, Microsoft and Mastercard, whose Global Operations Center is based in O’Fallon, near St. Louis.

The attack is what’s known as a supply-chain breach, Davis said. After hackers breached Orion’s system, they were able to watch how SolarWinds builds its software from the inside. They then were able to replace Orion’s source code with malware, passing the malware on to Orion  purchasers, he said.

“The hackers then collected data on the customers and observed them and saw what they were and who they were, and decided whether or not they were important to target,” he said. The hackers were next able to gain access to customers’ systems through a type of malware known as a backdoor.

Beyond affecting lawyers’ clients, the breach poses a risk to law firms themselves as well as the courts.

On Jan. 6, the Administrative Office of the U.S. Courts announced that the federal judiciary had suspended all national and local use of Orion in response to the breach and issued new procedures to help protect highly sensitive confidential documents.

The AO also announced it is working with the U.S. Department of Homeland Security on a security audit of the judiciary’s electronic filing system.

Both federal courts in Missouri have since issued orders identifying the type of documents that are considered highly sensitive. They also have outlined procedures for filing such documents and requesting removal of existing files on the electronic filing system.

Data breaches don’t affect only larger firms: Small and medium-sized firms also can be targets, Davis said. He said the breach can serve as a teachable moment for lawyers.

“The biggest lesson for lawyers is to be vigilant on our own cyber hygiene and to use this as an opportunity to review our own procedures,” he said.

Law firms should make sure their technical protections are up to date, and that they’re testing incident-response plans and scrutinizing vendors and vendor security, he said.

Alex Boyd, an associate at Polsinelli in Kansas City, practices with his firm’s technology transactions and data privacy practice group.

The Orion breach serves as a reminder that even secure environments can become compromised, he said.

Boyd recommended that law firms be on the lookout for breach notifications not only from SolarWinds, but also from their own vendors.

He also encouraged attorneys to consider purchasing cyber insurance, which provides resources for companies as they respond to a breach.

“What you don’t want is, ‘We’re impacted. Who do we even call?’” he said. “It’s kind of a ready-to-go team to assist you.”

Boyd also suggested that law firms work to harden their systems, which can include promoting use of complex passwords and multifactor authentication.

Echoing Davis, he also emphasized the importance of ensuring firm vendors are keeping client data secure.

“Ask questions about your vendors’ security procedures. Have a contract in place that requires them to implement those things, and if something does happen, they’re going to be the ones who pay for notifications,” he said.

Another good practice is to work to reduce the amount of sensitive data they’re storing and sending, particularly in email, which is especially vulnerable to hackers.

Burton Kelso, a Kansas City-based tech expert who regularly speaks on cybersecurity for lawyers, said the SolarWinds breach also raises the issue of cloud storage security.

“I know the cloud is cool and hip and easy, but maybe at the same time, it’s time to step back and find out: What’s going to be the most secure way to store data in the future?” he said.

Kelso also encouraged the use of local vendors and IT firms, pointing out they generally are more accountable and can provide more personalized support when it is needed.

By Jessica Shumaker | molawyersmedia.com

Fourth Circuit Decision on the Constitutional Requirements for a Lawful Entry

Case reviews nonconsensual police entry into a private residence to arrest an occupant


Kendrick Brinkley was the subject of an arrest warrant for the unlawful possession of a firearm by a convicted felon. ATF Special Agent Jason Murphy was in charge of a federal-state task force in Charlotte, North Carolina that was responsible for locating and arresting Brinkley. Murphy received information in February 2017 that Brinkley may be located at either of two local addresses.

Murphy obtained a water bill for one of the addresses that had Brinkley’s name on it. The other address was an apartment located on Stoney Trace Drive, Mint Hill, North Carolina. Detective Robert Stark, a task force member, checked a North Carolina statewide law enforcement database that showed Brinkley received a traffic citation on January 2, 2017, that displayed the Stoney Trace Drive address. Stark also checked a North Carolina Department of Corrections database that showed Brinkley to be connected to the Stoney Trace Drive address “at some point in January” 2017. The law enforcement database contained several other different addresses for Brinkley in 2016, one added in late December 2016.

Detective Stark located Brinkley’s Facebook page and observed some photos that led him to believe that Brinkley was dating Brittany Chisholm. He checked the law enforcement database and found that she was also connected to the Stoney Trace Drive address. Stark and Murphy decided that they would attempt to arrest Brinkley at the Stoney Trace Drive address the next morning. Stark, Murphy and three other officers arrived at the suspected location the next day and Stark knocked at the front door.

The court stated that in its view, “the home takes pride of place in our constitutional jurisprudence.”

The officers heard movement inside the residence and after about a minute a female asked who was there and Stark answered, “It’s the police.” Officers heard additional movement inside for another minute and then Brittany Chisholm opened the door.

Stark told her they were looking for Brinkley and requested permission to enter. Chisholm did not respond but instead became very nervous. She looked back over her shoulder and officers observed an unknown female inside the apartment. They also heard a noise coming from a back bedroom. Both women were observed looking backward toward that bedroom.

Stark asked Chisholm again if the officers could enter to look for Brinkley. Chisholm denied entry and asked if the officers had a search warrant. The officers decided to enter without Chisholm’s permission based upon the information they had accumulated at the point of entry and arrested Brinkley in the back bedroom.

The officers executed a protective sweep of the premises. During the sweep, they observed digital scales, a plastic bag containing cocaine base and a bullet. They obtained a search warrant for the residence and located three firearms and firearm magazines. Brinkley was later indicted for possession of cocaine base with intent to distribute and possession of a firearm. Brinkley moved to suppress the evidence gleaned from the search warrant. Brinkley argued that (1) police lacked probable cause to believe that he resided in the Stoney Trace Drive residence and (2) the officers did not possess probable cause to believe that he was present inside when they entered.

The Federal District Court Judge denied the motion to suppress and after entering a conditional guilty plea, Brinkley filed an appeal with the Fourth Circuit Court of Appeals.

THE DECISION OF THE FOURTH CIRCUIT

The Court of Appeals reversed the decision of the lower federal court. [1] The court first noted that according to the Supreme Court of the United States in Payton v. New York, [2] an arrest warrant and a reasonable belief that the subject of the warrant is present in his/her own residence is sufficient legal authority for police to enter the subject’s own residence to arrest him/her. The Fourth Circuit further observed that the Supreme Court ruled one year later in Steagald v. United States, [3] that absent emergency circumstance or consent, police are required to obtain a search warrant to enter third party private premises to arrest the subject of an arrest warrant who does not reside in that location.

The Supreme Court made clear in the Steagald situation, that the third-party owner of a particular residence has specific Fourth Amendment rights in the sanctity of the premises that can only be overcome with a search warrant. In that situation, absent consent or exigent circumstances, the arrest warrant for the person believed present at the location is not sufficient to protect the rights of the third-party owner of the residence.

PROBABLE CAUSE REQUIRED THAT THE SUBJECT OF AN ARREST WARRANT IS AN ACTUAL RESIDENT OF A PARTICULAR RESIDENCE AND IS PRESENT AT THE TIME OF ENTRY

The Fourth Circuit noted that there is a disagreement among the majority of federal courts of appeal concerning whether police need probable cause to believe that the subject of an arrest warrant is an actual resident of a private residence and is present at the time of entry before entering the premises to arrest that person. [4]

After taking careful note of the split between the federal circuits on this issue, the Fourth Circuit decided that probable cause is necessary to believe that the subject of an arrest warrant resides at a particular location and is present at the time of entry. [5]

The court explained that “requiring that law enforcement officers have probable cause to believe their suspect resides at and is present within a dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.” The court stated that in its view, “the home takes pride of place in our constitutional jurisprudence.”

APPLICATION OF THE “PROBABLE CAUSE” STANDARD TO THE ISSUE OF RESIDENCY

The Fourth Circuit examined the information officers had concerning whether Brinkley actually resided at the Stony Trace Drive residence.

The court observed that while the law enforcement database relied upon by officers disclosed the two most recent January 2017 entries that linked Brinkley to the Stony Trace Drive address, it also displayed “many others – including the two immediately preceding entries, one added just five days earlier [that] linked Brinkley to other addresses.” Further, the police had obtained a utility bill in Brinkley’s name for a different address. The court stated that utility bills typically constitute strong evidence of a person’s residence but added that the “officers did not look into this residence” or any of the other addresses found in the database although listed multiple times.

The court observed that the police review of Facebook showed that Brinkley may be dating Brittany Chisholm and that she was connected to the Stoney Trace Drive address. This provided officers with an additional reason to conclude that he “might well have stayed at Chisholm’s home, but did not speak to whether he did so as a resident or [an] overnight guest.” The court concluded that further investigation was necessary to establish probable cause that Brinkley was a resident of the premises.

The court suggested that police surveillance of the suspected location and possible inquiries with trusted sources like an apartment manager would likely provide officers with the probable cause required to establish that Brinkley was a resident of the premises.

DID THE OFFICERS HAVE PROBABLE CAUSE TO BELIEVE BRINKLEY WAS PRESENT AT THE TIME OF ENTRY?

The court determined that the officers did not have probable cause to believe that Brinkley was inside the apartment at the time of entry. The prosecution argued that the information police had that Brinkley may reside in the apartment; the time of entry (8:30 am); Chisholm’s delay in opening the door; Chisholm’s nervous demeanor; the sounds of movement from the rear of the apartment; and Chisholm and her guest looking backward when taken together established probable cause that Brinkley was present. The court disagreed.

The court rejected the information police had that suggested Brinkley possibly resided at the apartment because it did not rise to the probable cause level. The court explained, “When police know a suspect lives somewhere, generic indicia of presence may suggest that he is there, but when police are uncertain about where he lives, the same signs suggest only that someone is there – not necessarily the suspect.” The court was not persuaded by the other points argued by the prosecution and stated, “When police have limited reason to believe a suspect resides in a home, generic signs of life inside and understandably nervous reactions from residents, without more, do not amount to probable cause that the suspect is present within.”

CONCLUSION

This case presents law enforcement officers with an instructional reminder of several key Fourth Amendment constitutional requirements before attempting to arrest a person located in a residence.

These requirements include:

  • An arrest warrant is required, absent consent or exigent circumstances, before officers can enter a person’s own residence to apprehend him/her.
  • A search warrant is necessary, absent consent or emergency circumstances before officers can enter a third-party residence to arrest a subject located inside that residence. The existence of an arrest warrant for the subject inside the residence is not sufficient to overcome the Fourth Amendment rights of the third-party owner.
  • When officers seek to enter a subject’s own residence to arrest him/her, several Federal Circuit Courts of Appeal (see footnote 4) require officers to possess, in addition to an arrest warrant for the subject, probable cause to believe the subject actually resides in the premises and probable cause that he/she is present inside at the time of entry.
  • A smaller number of federal circuits (see footnote 4) take the position that when officers have an arrest warrant for a subject and seek entry to the subject’s own residence to arrest him/her, they need less than probable cause to believe the subject resides there and is present at the time of entry. Facts amounting to the lesser standard of a “reasonable belief” would suffice.


References

1. United States v. Brinkley, (No. 18-4455) (4th Cir. 2020).

2. See, Payton v. New York, 445 U.S. 573 (1980). The Supreme Court ruled “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” (Id. at 603).

3. 451 U.S. 204 (1981).

4. Some federal circuits including the First, Second, Tenth, and the D.C. Circuit require less than probable cause (i.e., a “reasonable belief”) that the subject of an arrest warrant is an actual resident of a residence and is present at the time of entry before police can enter to arrest him. See e.g., U.S. v. Werra, 638 F.3d 326, 337 (1st Cir. 2011); U.S. v. Lauter, 57 F.3d 212, 215 (2nd Cir. 1995); Valdez v. McPheters, 172 F.3d 1220, 1224 (10th Cir. 1999); U.S. v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005). In Thomas, the D.C. Circuit explained that the standard was a “reasonable belief” that the suspect resided in the premises and was present at the time of entry. However, the court made clear that this standard was less than probable cause.

Several other federal appellate courts have required, in addition to an arrest warrant, that law enforcement officers possess probable cause to believe the subject of the arrest warrant actually resides in the premises to be searched and probable cause to believe he/she is present at the time of entry. See, U.S. v. Vasquez-Algarin, 821 F.3d 467, 477 (3d Cir. 2016); U.S. v. Barrera, 464 F.3d 496, 500 (5th Cir. 2006); U.S. v. Hardin,539 F.3d 404, 415 (6th Cir. 2008); U.S. v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009); U.S. v. Gorman, 314 F.3d 1105, 1114 (9th Cir. 2002). It should be noted that the Seventh Circuit has indicated an inclination to rule this way.

5. The Fourth Circuit covers the states of Maryland, North Carolina, South Carolina, Virginia and West Virginia. The Third Circuit covers Pennsylvania, Delaware, New Jersey, and the Virgin Islands. The Fifth Circuit covers Louisiana, Mississippi and Texas. The Sixth Circuit covers Ohio, Michigan, Kentucky and Tennessee. The Seventh Circuit covers Illinois, Indiana and Wisconsin. The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Mariana Islands.

The First Circuit covers, Massachusetts, New Hampshire, Maine, Rhode Island and Puerto Rico. The Second Circuit covers New York, Connecticut and Vermont. The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The Washington D.C. Circuit covers the District of Columbia.

About the author

John Michael Callahan served in law enforcement for 44 years. His career began as a special agent with NCIS. He became an FBI agent and served in the FBI for 30 years, retiring in the position of supervisory special agent/chief division counsel. He taught criminal law/procedure at the FBI Academy. After the FBI, he served as a Massachusetts Deputy Inspector General and is currently a deputy sheriff for Plymouth County, Massachusetts. He is the author of two published books on deadly force and an upcoming book on supervisory and municipal liability in law enforcement.

Jackson County, Federal Courts Cancel Jury Trials

The Jackson County Circuit Court has cancelled all jury trials through the end of the year in response to a significant increase in COVID-19 cases in the region.

“Every day is a new day in the fight against this pandemic,” Presiding Judge David M. Byrn said in a statement on Nov. 18. “Unfortunately, the recent significant spike in cases, hospitalizations, deaths and increasing concern about community spread has led the court to determine that jury trials should be cancelled through the end of the year.”

So far, the court has held five criminal jury trials, all in the Eastern Jackson County Courthouse in Independence. The court had been unable to resume trials in downtown Kansas City because of court employees’ COVID-19 cases.

Under the Missouri Supreme Court’s operational directives, the circuit court is required to move to either Operating Phase Zero or One, limiting in-person proceedings, if court employees contract COVID-19.

In circuits with multiple buildings, like Jackson County, some buildings may remain in a more advanced operating phase while others revert back to a more restricted phase.

In a news release, the court touted positive feedback it had received from jurors, noting that the majority of respondents said they felt safe during their service.

The court has implemented several health and safety procedures, from revamping the jury selection process to bringing in fewer jurors at a time to sanitizing public spaces multiple times a day.

“The court is pleased that our efforts to maintain the health and safety of citizens called to serve as jurors were successful and jurors felt safe while fulfilling their civic responsibility,” Byrn said. “However, changing circumstances have led to the decision to temporarily postpone additional jury trials.”

The court follows decisions to suspend trials in Missouri’s federal courts as well.

On Nov. 6, the U.S. District Court for the Eastern District of Missouri announced it would postpone all civil jury trials through the end of the year.

The court limited in-person proceedings to criminal hearings or trials in which an in-person appearance was necessary and closed in-person access to the clerk’s offices in St. Louis and Cape Girardeau. A subsequent order extended the closure of the clerk’s offices through Nov. 25.

The U.S. District Court for the Western District followed suit on Nov. 13, issuing an order continuing all civil and criminal jury selections and trials through Jan. 4. All courthouses will remain open to the public, however, under the current order.

 
By: Jessica Shumaker | Missouri Lawyers Weekly | molawyersmedia.com

Inmate Argues Chance of Parole Isn’t Enough

Jessica Hicklin, who was born James Hicklin, is serving a life sentence for a 1995 murder in Cass County that occurred during a meth transaction. Kansas City Star photo.

 

Four years ago, Missouri lawmakers offered a chance of release for inmates serving life without parole for crimes they committed as teens. The Missouri Supreme Court is now considering whether that law went far enough.

On Sept. 9, the court heard arguments from Jessica Hicklin, who was convicted of fatally shooting Sean Smith in 1995, when she was 16. Hicklin was sentenced to life in prison without eligibility for parole, the lowest sentence that Missouri law permitted at the time for first-degree murder.

In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that juvenile offenders cannot be given an automatic sentence of life in prison without parole, though a jury can still impose such a sentence based on the particular offender’s case. In 2016, the high court said in Montgomery v. Louisiana that Miller’s holding was retroactive to inmates already serving life sentences.

To address those holdings, the Missouri legislature in 2016 passed Senate Bill 590, which allows parole hearings for inmates previously sentenced to life without parole for crimes committed as juveniles, so long as they have served at least 25 years in prison. The bill also added a wider range of sentencing provisions for those who are under 18 when they commit first-degree murder.

Anthony Rothert of the American Civil Liberties Union of Missouri Foundation, an attorney for Hicklin, noted that prior to the passage of that bill, the Missouri Supreme Court had ruled that such inmates had to be resentenced, and that anyone under 18 convicted of murder today would receive a sentence under the new law.

“This case raises the question about what happens to the small number of people caught in the middle,” he said.

Rothert argued that Hicklin’s original sentence is still in effect and is still unconstitutional, and therefore is void. But Andrew J. Crane, an assistant attorney general arguing on behalf of the state, said Hicklin essentially was asking the court to “harm her” by denying the potential parole hearing the revised state law provides. He added that crafting sentencing laws that comply with the constitution ultimately is the job of the legislature.

“It would be unprecedented and unwarranted for this court to depart from its precedent and take away the power of the General Assembly to retroactively help offenders, especially those with unconstitutional sentences like Ms. Hicklin had,” Crane said.

The judges repeatedly questioned Rothert about whether the U.S. Supreme Court’s precedents already have determined that a parole hearing is an adequate solution for an inmate such as Hicklin.

“Does that then prevent us from saying, while maybe not ideal, it’s not unconstitutional, as you’re asking us to hold?” Judge Laura Denvir Stith said.

“Ms. Hicklin does not have parole eligibility today or even any promise that she ever will,” Rothert said. Assuming the legislature can replace a void sentence with a new sentence, he added, “What she has is the ability to ask after 25 years to become parole-eligible.”

Judge Zel M. Fischer repeatedly pressed Rothert on whether the U.S. Supreme Court’s Montgomery ruling said that states are not required to resentence prisoners already serving life without parole. Rothert disagreed.

“The constitutional right here is to have a Miller-compliant hearing,” he said.

The suit seeks a declaration that the 2016 bill is unconstitutional as applied to Hicklin. But several judges asked whether a habeas writ would be the more appropriate procedural route, as Hicklin is challenging her sentence. Rothert characterized the case as “a bit unique,” particularly because his client isn’t seeking immediate release from prison, as is typically the case in a habeas action.

The case drew multiple amicus briefs, including from the Roderick & Solange MacArthur Justice Center, which won a federal court order last year mandating that Missouri overhaul its parole process for juvenile life-without-parole inmates. An appeal of the ruling is being briefed in the 8th U.S. Circuit Court of Appeals.

Separately, Joe Dandurand, the former Johnson County circuit judge who originally sentenced Hicklin, now agrees that sentence was unconstitutional. Dandurand, who now is the executive director of Legal Aid of Western Missouri, urged the court to order resentencing in a ​​court of law.

The case is Hicklin v. Schmitt et al., SC97692.

By Scott Lauck | Missouri Lawyers Media molawyersmedia.com​


From a February 12, 2018 story written by Matt Campbell for the Kansas City Star​:
 
Jessica Hicklin, who was born James Hicklin, was convicted of first-degree murder and armed criminal action in the shooting death of Sean Smith, who lived in a trailer in East Lynne, Mo. Hicklin, of Clinton, Mo., shot Smith in the face and the back when he could not pay for a crystal meth transaction. He (Hicklin) was 16 when he was convicted and sentenced to life in prison without parole.

In 2015, Hicklin changed her name and in 2016, filed a civil lawsuit alleging that deprivation of hormone therapy was unconstitutional.

​I​n 2018 U.S. District Judge Noelle C. Collins ordered the state to provide hormone therapy to Hicklin, who was also allowed to have permanent body hair removal and access to “gender affirming” toiletries

8th Circuit: Grand Juror Can’t Talk About Ferguson Case

The 8th U.S. Circuit Court of Appeals ruled Aug. 14 that a grand juror who participated in the decision not to indict former Ferguson Police Officer Darren Wilson can’t talk about her experiences.

The appeals court upheld a federal judge’s earlier ruling that Missouri laws swearing grand jurors to secrecy pass constitutional muster.

“Because Missouri’s grand jury secrecy laws survive even the most exacting scrutiny, Doe failed to state a claim for which relief can be granted,” Judge Raymond W. Gruender wrote for the court. Judges Roger L. Wollman and Bobby E. Shepherd concurred.

The plaintiff, referred to as a woman but otherwise unidentified, sought to talk about her experiences in 2014 when the grand jury declined to indict Wilson for the fatal shooting of Michael Brown in Ferguson. In court documents, Doe claimed that then-St. Louis County Prosecutor Robert McCulloch handled the case differently than other cases the grand jury heard.

In an unusual move, immediately after the grand jury chose not to indict Wilson, McCulloch released thousands of pages of transcripts from the proceedings. Evidence presented to the grand jurors appeared to support Wilson’s account that Brown attacked him and that the officer had shot the teen in self-defense.

The 8th Circuit, however, said McCulloch did not release any information about the jurors’ deliberations or identities. Gruender noted that grand jury secrecy dates back centuries in English common law.

“We think it thus beyond dispute that secrecy is an integral component to a functioning grand jury system and that once a state chooses to adopt it as a mechanism for screening indictments, the grand jury’s secrecy becomes an interest of the highest order because it is necessary for ‘upholding the administration of justice,’” Gruender wrote.

The court noted that it was an example of the “rare case” that survives scrutiny under the First Amendment’s broad protections for speech.

“If Doe were to speak on the quality of the evidence, the credibility of witnesses, or the deliberations of fellow jurors concerning the same, she would necessarily undermine the functioning of the grand jury,” Gruender wrote. “Witnesses in future cases may be less candid. The unindicted may face unending questions about culpability as juror after juror comes forward with their own view of the evidence, feeling pressured to respond either to challenge or defend Doe’s views, lest their collective decision be mischaracterized. And in future cases, jurors might hesitate to discuss matters candidly or to vote their conscience out of fear of future publicity.”

In a statement, Anthony Rothert of the ACLU of Missouri, which represented the grand juror, said he believed the ruling was wrong. He called grand juries “an unhelpful relic of a criminal justice system created to perpetuate white supremacy” and urged the state to limit their use.

“This allows unlimited prosecutorial manipulation of grand juries with no effective public oversight. It allow prosecutors to misrepresent what happens in these proceedings — or even lie — in order to manipulate public opinion,” Rothert said. “That is not in line with the spirit of the First Amendment.”

McCulloch lost the 2018 election to Wesley Bell, who ran on a platform of reform inspired by the Ferguson case. Bell announced last month that his office also would not open a case against Wilso​​n.

Bell also announced that his office plans to begin recording all grand jury proceedings in homicide cases, “so that all potential defendants get the same protections that Darren Wilson received.”

The 8th Circuit’s ruling follows a similar decision in 2017 from the Missouri Court of Appeals Eastern District. The grand juror’s federal claims were allowed to proceed after that ruling.

The case is Grand Juror Doe v. Bell, 19-1436.

By​ ​Scott Lauck ​| Missouri Lawyers Media ​molawyersmedia.com