In a rare complaint against an elected prosecutor, the Missouri agency responsible for investigating allegations of lawyer wrongdoing has recommended that Platte County Prosecuting Attorney Eric Zahnd be punished for professional misconduct.
The matter now goes before a disciplinary hearing panel – two lawyers and one non-lawyer – which will hear evidence and recommend what discipline, if any, to impose.
The Missouri Supreme Court is authorized to review the panel’s decision and impose punishment ranging from a public reprimand and suspension to disbarment.
It’s highly unusual for a sitting prosecuting attorney to be formally accused of ethical lapses, especially popularly elected ones like Zahnd, who has been Platte County’s chief prosecutor since 2002.
The Office of Chief Disciplinary Counsel, the Missouri body that polices attorney conduct, only brings formal charges when it concludes that an attorney has committed serious violations of the rules governing attorney behavior, known as the Rules of Professional Conduct.
Zahnd earlier this year was thought to be a leading candidate to become the next U.S. Attorney for the Western District of Missouri – the chief federal prosecutor in the western half of the state. The findings by the chief disciplinary counsel, Alan D. Pratzel, are likely to cast a large shadow over his candidacy.
Pratzel’s findings center on the conduct of Zahnd’s office in a highly charged criminal case that deeply divided the small town of Dearborn, Missouri. The defendant, Darren L. Paden, pleaded guilty to sexually molesting a young girl over a decade and was sentenced to 50 years in prison.
Zahnd defended his conduct in an email to KCUR, saying he was "confident that everything we did to hold a clinically diagnosed pedophile accountable and support the child he molested was entirely ethical."
"People expect and deserve prosecutors who tell the truth," Zahnd said. "Nearly two years ago, my assistants and I told the truth to supporters of a man who had confessed to sexually abusing a girl for a decade. And after that man was sentenced to 50 years in prison, we told the truth about what happened in court."
In a story about the case and the questions it raised, KCUR reported in April that Paden’s attorney, John P. O’Connor, was so disturbed by Zahnd’s conduct that he had taken the highly unusual step of filing an ethics complaint against him. KCUR has since learned that Zahnd, in turn, filed an ethics complaint against O’Connor. That complaint has not been acted on yet.
Pratzel was acting on O’Connor’s complaint when he concluded earlier this month that Zahnd committed multiple violations of the Rules of Professional Conduct by seeking to intimidate witnesses who wrote letters on Paden’s behalf and by later publicizing their names.
Zahnd strongly denied any wrongdoing in a 25-page written response to Pratzel’s charges. In it, he insisted that he acted legally and ethically and that his publication of the letter writers’ names in a news release was truthful, a matter of public record and protected by the First Amendment.
“Prohibiting a prosecutor or any other lawyer from including truthful, publicly available information in a news release after a case has concluded would be a radical departure from the general understanding of the Rules’ requirements and would violate the First Amendment,” Zahnd said in his written answer to Pratzel’s charges.
Zahnd also said that in seeking to persuade the letter writers to withdraw their letters, he was merely trying to spare them from public shame and embarrassment.
‘Doing his job’
Zahnd has retained Edwin H. Smith, a former appellate judge who is now with the Polsinelli law firm, to represent him in the disciplinary proceedings.
Smith told KCUR that Zahnd’s response “probably speaks for itself” but added, “We strongly deny any of the allegations of the information and believe that after a fair and impartial hearing in front of the (disciplinary hearing) panel that will be appointed, they'll find that there's not been any unethical conduct by Mr. Zahnd.
“He was simply doing his job as required by the law and he represented the people of the state of Missouri and the victim in this case in a manner in which he should have.”
The case that triggered Pratzel’s findings dates to August 2015, when Paden, a one-time chief of Dearborn’s all-volunteer fire department and a junior deacon at his church, pleaded guilty to sexually abusing a girl starting when she was 5 years old.
Sixteen friends and relatives of Paden, including several prominent members of the Dearborn community, wrote letters to the judge pleading for leniency. The letters cited his work on behalf of his neighbors, community and church, and asked the judge to take that into account at his sentencing.
Before Paden was sentenced, however, Zahnd told his assistant prosecutors to meet with the letter writers and try to get them to withdraw their letters, according to the charges lodged by Pratzel. If the letter writers refused, Zahnd told the prosecutors, they were to cross-examine them at the sentencing hearing.
Some of the letter writers were also subpoenaed by Zahnd’s office. In one instance, according to Pratzel, an assistant prosecutor told one of the letter writers that if he didn’t withdraw his letter, he would be named in a press release suggesting that he supported child molestation.
None of the letter writers withdrew their letters and, in the end, Zahnd’s office agreed not to cross-examine them if Paden agreed to move up his sentencing date.
The letters did not appear to have any effect on the judge. In meting out two consecutive 25-year sentences, Platte County Circuit Judge James Van Amberg effectively condemned the then 52-year-old Paden to life in prison. Paden has since asked that his guilty plea be set aside.
Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.