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Tony Messenger is the metro columnist for the St. Louis Post-Dispatch.

When it comes to standing up for his client, St. Louis lawyer Jeffrey Ernst gets straight to the point.

On Monday, Ernst filed a motion seeking to disqualify St. Francois County Prosecuting Attorney Jerrod Mahurin from further prosecution of a drug case against Richard Clark, 59, of Farmington.

“Mahurin is out of control,” Ernst writes. “In his quest to make Clark spend the rest of his life in jail based on a failed trafficking case, Mahurin trampled on his due process rights and willfully defied this Court’s order to produce evidence. He also ignored the boundaries of professional conduct by a prosecutor.”

Ernst’s motion accuses Mahurin of “prosecutorial misconduct” and seeks to replace him with a special prosecutor. Mahurin, a Democrat who faces Republican Melissa Gilliam in Tuesday’s election, hasn’t responded in court to the motion. In an interview with the Post-Dispatch, Mahurin said Ernst is trying to have him removed from the case because Ernst doesn’t like the plea offers he’s made to Ernst’s client.

“The attorneys in that case tried to take up that motion once already, and it was not successful,” Mahurin said. “There’s no standing or grounds for that to happen.”

Clark, who has previous drug offenses on his record, was arrested Aug. 26, 2015. He was jailed overnight and eventually charged with “trafficking and possession of drug paraphernalia,” both felonies.

Like many defendants in St. Francois County, where bails are often high and even people not accused of violent offenses are sometimes detained for months before trial, Clark ended up spending 495 days in county jail awaiting a trial that still hasn’t come.

At question, Ernst writes in his motion, is whether Clark was actually “arrested” on the day he was put in jail. At a hearing in June held in part to answer that question, and to see if an incriminating statement could be used against Clark at trial, Mahurin argued that Clark was not arrested. The officer who brought Clark to the jail agreed with the prosecutor.

“He was not taken into custody,” Farmington police Officer Kelvin Clemons testified at that hearing. Fellow Officer Neil Jannin offered similar testimony, according to court records. “He did not go to jail,” Clemons testified. “He was left at the house.”

Records Ernst obtained later from the St. Francois County Sheriff’s Department paint an entirely different picture. They show Clark arrested, fingerprinted and booked into the jail.

Ernst writes in his brief that “defense counsel obtained the Sheriff’s Department ‘Days Served Report,’ which put the lie to Officers Clemons’ and Jannin’s testimony by showing that Clark was arrested on Aug. 26, 2015.”

Now having evidence that the police officers’ testimony was inaccurate, Ernst called and emailed Mahurin. He sought more documents.

“When asked what happened,” Ernst writes, “Mahurin pled ignorance and threw Officers Clemons and Jannin under the bus, saying ‘I was under the belief based on my officers’ testimony that (the arrest records) didn’t exist. Because they had testified and told me multiple times.’”

The issue of whether Clark was in custody when police questioned him is significant. If he was in custody and hadn’t been read his Miranda rights, any statements he made would likely be inadmissible, making it harder for Mahurin to make the case.

Mahurin dropped the more serious trafficking charge in September, after trying to use it as “leverage” against Clark to obtain a plea deal in the possession case, Ernst wrote.

“Mahurin never had any intention of continuing on with the trafficking case, but nevertheless took one last shot at squeezing Clark with it,” his motion argues. “Mahurin is compromised … The fact that he attempted to leverage a defective case — moments before he voluntarily dismissed it because of insurmountable evidentiary problems — to secure a plea deal in a different case smacks of impropriety.”

Ernst was himself a prosecutor for 11 years. Like others who have complained of the lack of justice in St. Francois County, whether related to high bails or court costs or Mahurin’s alleged violation of court rules, such as failing to hand over arrest and jail records even after being directed to by a judge, he’s baffled by the prosecutor’s conduct in this case.

“It’s not like I was asking him to climb Mount Everest to get the documents,” Ernst told me in an interview. “This is simple stuff. When a person goes to jail there are all sorts of documents that go with it. I’ve never seen anything like this before.”

Jailed for being poor is Missouri epidemic: A series of columns from Tony Messenger

Tony Messenger has written about Missouri cases where people were charged for their time in jail or on probation, then owe more money than their fines or court costs. 

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