The St. Louis circuit attorney’s office has been practicing “civil disobedience” for more than 10 years, a Missouri judge said on Thursday, July 7 regarding a lawsuit that the city’s public defenders filed against Circuit Attorney Jennifer Joyce’s office about a year ago.
“Even though you think you’re right, it’s kind of civil disobedience,” said Judge Gael Wood of Franklin County. “But I’m not sure if the prosecutor’s office should be engaged in disobeying the rules simply because they think it’s wrong.”
Wood was brought in from Union, Missouri to hear the lawsuit after St. Louis city judges – who work closely with both legal offices daily – recused themselves.
At the July 7 hearing held at the Carnahan Courthouse, Public Defender’s Office Director Mary Fox argued that for a decade the circuit attorney’s office has been redacting the information about victims and witnesses from records, even though Missouri Supreme Court rules require that it be given to defenders.
Fox asked the judge to order the circuit attorney’s office in all future cases to follow “Rule 25.03,” which requires prosecutors to hand over police reports, last-known addresses of witnesses and victims, and all written reports and oral statements within 10 days.
City prosecutors countered that automatically handing over the information violates the victim’s rights the under Article 32 of the Missouri Constitution, which gives victims the “right to reasonable protection from the defendant.”
Without the addresses of witnesses, public defenders can’t interview them and investigate their cases properly, Fox said. They are then forced to file “motions to compel,” which slows down the process considerably, she said. The 22nd Circuit Court (which covers the city) has long been criticized for not moving cases along fast enough, resulting in some people waiting years in jail for hearings.
Prosecutors have withheld the information because they believe turning over their social security numbers and addresses could put victims and witnesses in danger, said Rachel Smith, chief prosecutor of the circuit attorney’s Community Partnership Bureau. The court rule never intended to include people’s identifying information, she told The St. Louis American.
The tension between the offices escalated after Fox filed the suit about a year ago. Now the situation has become “ridiculous,” Wood said, causing a “law jam that needs to be circumvented.”
Currently, 123 cases are held up in the Court of Appeals as a result of the clash – meaning these individuals’ cases can’t move forward until the two offices’ conflict is resolved.
The “law jam” started in April, when Circuit Court Judge Michael Mullen, who leads the Criminal Assignment Division, denied 14 of prosecutors’ requests for protective orders – or permission to withhold the victim’s identifying information from defense attorneys. When Mullen did that, Joyce’s office filed a writ of mandamus against Mullen, and now the Court of Appeals will be looking into whether his decision was valid.
That happened again in 109 cases when, in closed hearings on June 20 and 21, Mullen reviewed more of the prosecutors’ protective order requests. In an attempt to appease both sides, he granted many “partial” protective orders, Mullen said in his testimony. In some of the 109 cases, he ordered prosecutors to give over information to defense attorneys, but withhold it from the accused. In other cases, he allowed prosecutors to redact the social security numbers from the records, but not addresses.
Mullen’s mediation efforts apparently failed, because Joyce’s office filed a writ on all 109 cases.
“If every time a high percentage of the cases that I make a decision on get writted up [slang for seeking a writ] for the Court of Appeals,” Mullen testified, “and then our circuit can’t touch those 109 cases pending the outcome of that writ, it is not exceedingly workable.”
‘Without law enforcement staring them down’
At the hearing, prosecutors argued that their redaction practice doesn’t inconvenience defenders or obstruct justice; it makes the process smoother. Instead of providing addresses, they set up meetings with the victims, witnesses and defenders in a court room. That takes the burden off of the defenders having to track down witnesses at their homes, they said.
However, Rick Kroeger, deputy district director of the public defender’s office, told the judge that they want to be able to talk to the witnesses “without law enforcement staring them down.” And it often takes months to schedule these meetings with busy prosecutors, he said.
Under law, the only time witnesses are required to answer the public defenders’ questions is when they are under subpoena, Fox said at the hearing. Defenders need addresses in order to issue subpoenas. Some witnesses have walked out of the prosecutors’ established meetings without giving the defenders statements because the individuals were not under subpoenas, Fox said.
In her opening argument, Chief Trial Assistant Beth Orwick said that they have the right to file protective orders under “Rule 25.11,” and they do it judiciously. Kroeger told the judge differently.
“They have taken Rule 25.11 and turned it into a rule they apply to every single case,” Kroeger said in his opening argument. “Rule 25.03 is not discretionary. Discovery is not discretionary.”
Kroeger told The American that the prosecutors are deciding that because they charged someone with a crime, that person is now “an evil person.”
“No matter who you are, you should have the rights that the system provides,” Kroeger said. “We just want to make sure our clients have the best defense.”
On August 18, the Court of Appeals will hear the arguments regarding the first 14 cases in which the Joyce’s office filed writs against Mullen. A request to consolidate the 14 and 109 cases into one hearing is still pending.
“If they agree with Judge Mullen’s interpretation, you can expect us to appeal it to the Supreme Court,” Smith told The American.
If they fail in the state’s highest court, then they will take it to the legislature, Smith said.
In January, Joyce’s office asked the Supreme Court’s rules committee to look at revising Rule 25.03. The committee – which includes prosecutors, defenders and judges – will review the rule at its September meeting.
Smith said they want the rule to reflect that a person’s social security number and address should not be given to the defense without good cause.
“If the defense can show why they need it with good cause, then they get it,” she said.
Kroeger said they agree that they don’t need the social security number in most cases, but they do need ways to contact witnesses. They want the committee to leave the rule as it is but refine what “good cause” is, as stated in Rule 25.11. It is currently too vague, he said.
As Joyce is not running for re-election, this situation is particularly interesting to circuit-attorney candidates who will possibly inherit the conflict when taking the helm next year.
State Rep. Kim Gardner, one of four circuit-attorney candidates on the August 2 primary ballot, said she supports protecting information of victims and witnesses.
“But, by law, the defense of the accused has a right to this information to investigate their case,” Gardner said. “Jennifer Joyce has said the law needs to be changed. In that case, change the law. As it stands now, prosecutors need to obey the law.”
A few months ago, prosecutors filed a motion to dismiss in regards to Fox’s lawsuit, and Smith said they are “optimistic” that Wood will rule in their favor.
“He can’t tell us not to protect the rape victim in a rape case,” Smith said.
In response to Wood’s comment about civil disobedience, Smith said, “I found it entertaining, though inaccurate. I don’t think any activist has ever associated civil disobedience with Jennifer Joyce. That’s not something that neither she nor I are known for.”
Follow this reporter on Twitter @RebeccaRivas.
