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A web of lawyers play different roles in different courts

A web of lawyers play different roles in different courts

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Judges and prosecutors serve in multiple courts while also working as private defense attorneys

A gray line connects lawyers serving as prosecutor or judge in the same court or where one lawyer was a defense attorney in a court where the other was a judge or prosecutor.

A red line connecting lawyers means they each took a turn as defense attorney in the court where the other lawyer served as prosecutor or judge or they serve together as prosecutor and a judge in one court and in another court one was defense attorney and the other was judge or prosecutor.

Nathaniel Slate was in the crosswalk when the car hit him from behind, sending him tumbling over the hood and onto the pavement.

“Where did you come from?” asked the driver, Thomas R. Battreal Sr., who according to a police report, slowed just long enough to ask the question after ignoring the pedestrian crossing sign. Battreal then took off down Emma Avenue in Jennings. It was Feb. 20, 2014, a sunny, dry day.

Battreal, 86, later told police that he made a right turn and “all of a sudden there was a black guy on my hood.” They charged him in municipal court with failure to yield for a pedestrian in a crosswalk and leaving the scene of an accident.

Battreal hired an attorney and just over a month later, the prosecutor recommended one charge be dismissed and the other be amended to “illegal parking.” Battreal paid $250 plus court costs and was done with it, never having to worry about the accident going on his driving record.

His defense attorney was Ronald Brockmeyer — then one of the more prolific players in St. Louis County’s municipal court system and the judge in Ferguson.

Brockmeyer resigned from all five municipalities where he was either prosecutor or judge after a Department of Justice report March 4 accused him and other court officials of acting more as moneymakers for Ferguson than an impartial court. The report criticized Brockmeyer and court officials for seeking dismissal of tickets they and their friends obtained there and elsewhere, while being unforgiving with the people who came before the Ferguson court.

Brockmeyer’s influence extended far beyond Ferguson. He was one of an elite club — the lawyers who both help run and profit from the region’s 81 municipal courts.

In courts where they have no official status, they often work as traffic attorneys whose success lies in their ability to get a charge amended to a nonmoving violation — a leniency that many courts will afford only to lawyers, as long as the offender is willing to pay a higher fine. They also work as city attorneys, paid to represent municipalities in lawsuits and to craft ordinances that feed the municipal revenue stream. Sometimes they do both.

These dual, or in some cases triple and quadruple roles — judge in one place; prosecutor or city attorney in another; and private lawyer representing defendants in still another — mean the lawyers regularly appear before each other, switching places in court. On a recent court date in Berkeley, for instance, 20 of the defense attorneys who were scheduled to appear before Judge Jennifer Fisher were fellow municipal prosecutors and judges.

It’s a practice that wouldn’t fly at the state court level — and which critics say raises questions about how justice is served in these small communities.

“If you’re in front of a judge or you’re talking to the prosecutor and you know two days later you’re going to be the judge and that person is going to be in front of you as a defense attorney, that knowledge impacts the negotiations,” said St. Louis University Law professor Brendan Roediger, who is part of a legal team behind several lawsuits alleging constitutional abuses in the area’s municipal courts.

The main players in this system insist that they treat everyone equally.

But several lawyers who have knowledge of the inner workings describe the ultimate good old boys club. Favors are traded behind the scenes between lawyers who frequently appear before one another. The same lawyers are simultaneously charging clients to get the same types of deals.

It doesn’t seem fair to people such as Slate who are on the other end of the arrangements.

Slate sued Battreal and the case settled out of court. Slate said the settlement covered the costs of his doctor’s visits and physical therapy for the pain. But he’s angry the police citations were downgraded.

“He ends up with illegal parking for hitting a person who was walking? How is that possible?” Slate said. “It should be more than parking. It should be what it was — he hit me!”

WEARING MANY HATS

In Missouri’s state courts, judges are generally prohibited from practicing law and prosecutors can be charged with a misdemeanor if they practice in any other criminal capacity.

Judges and prosecutors in the municipal courts work part time and do not face the same restrictions.

This allows Donnell Smith to hold nine different taxpayer-funded positions— prosecutor in Berkeley and Moline Acres, judge in Greendale and Dellwood, and city attorney in Beverly Hills, Berkeley, Moline Acres, Pine Lawn and Velda Village Hills — all while holding down a municipal law and criminal defense practice.

On his firm’s website, Smith highlights that experience. Four other lawyers who hold down five or more municipal positions in St. Louis County also point out their roles when soliciting clients on their firm’s websites.

The numerous roles create a web of connections that is never more apparent than when all the lawyers gather in one courtroom.

Smith was one of about 50 attorneys at a Dec. 11 St. Louis County Circuit Court session in Clayton, where the circuit court hears municipal court cases that have been appealed or moved. One minute he was the prosecutor, representing Berkeley on a traffic case. The next, he was a private defense attorney for a Hazelwood traffic offender.

After Smith concluded his Berkeley case with the judge, there was brief confusion when the judge called the name of the Hazelwood defendant, apparently presuming Smith was the prosecutor of that case too.

“No, that’s my client,” Smith corrected him.

Smith ended up dropping the Berkeley case, which involved charges of failure to register a vehicle, a seat belt violation and operating a vehicle without insurance. Smith said the driver presented proof he had been carrying insurance, and it wasn’t worth having the city clerk and a police officer make the round trip to Clayton for the other charges.

In the Hazelwood case, Smith accepted the recommendation of the Hazelwood prosecutor, Stephanie Karr, for about $300 in fines for his client, who was charged with a miscellaneous ordinance violation, failure to register his car, driving without insurance and failure to appear in court. Two of the charges were dropped; the other two were amended to illegal parking.

Smith said he didn’t see any problem with his dual roles because he considers each case separately.

“As a prosecutor you are a seeker of justice, and as a defense attorney you represent the interest of your client,” he said.

Karr is in the same law firm as Keith Cheung, who had worked out a deal with Smith, prosecutor in Berkeley, the previous month. In that case a woman’s child endangerment and drug citations were amended to littering, and she was fined $450.

Cheung, who is prosecutor in St. Ann, Crystal Lake Park, Frontenac and Normandy, and judge in Ladue, was also in circuit court Dec. 11 — for 14 cases from Normandy and St. Ann.

He acknowledged many in the room served as prosecutors or judges in municipalities where he defends clients. The private criminal defense work is in addition to his larger personal injury and civil practices. “There is no quid pro quo, if that’s what you are asking,” he said. “Each case is its own case.”

Nancy Greenwood, a former Chesterfield mayor and current City Council member, said she’s had concerns for years about prosecutors who serve as judges in other municipalities and vice versa. She was the lone vote against reappointing Timothy Engelmeyer as the city prosecutor two years ago. Engelmeyer is also a judge in Creve Coeur and prosecutor in Des Peres.

“I feel each court should be independent,” she said, “and I don’t think our current system allows for that … I have an ethical problem with it.”

Sometimes the lawyers represent each other. When Cheung was caught passing a note to a circuit court judge in a 2010 trial, Paul D’Agrosa — currently the judge in Olivette and University City and prosecutor in Arnold — represented him in his disciplinary proceedings before the Missouri Supreme Court.

“Judge, you need to convict this guy. I’ll explain later. Keith Cheung,” the note read.

The defendant was Bella Villa Police Chief Edward J. Locke Jr., who was accused of employing an unqualified officer. Cheung formerly worked as prosecutor for Bella Villa, but he had no role in Locke’s trial. After the judge called a mistrial, Cheung apologized and self-reported his misconduct, which resulted in a reprimand.

PERCEPTIONS OF FAVORS

A month after the driver who hit Slate paid his fines on the deal that Brockmeyer, as private defense attorney, worked out with Ethan Corlija, the prosecutor in Jennings, Corlija as private defense attorney entered his appearance on a case in front of Brockmeyer, then judge in Ferguson.

His client had faced two driving while suspended charges, several failures to appear, no proof of insurance and other charges. Ultimately, all were amended to nonmoving violations — some before Corlija entered his appearance, and some after — for $1,639 in fines.

Brockmeyer did not return a phone call seeking comment on the Ferguson case.

In the Jennings case, Corlija said because Battreal slowed and briefly conversed with Slate “it really wasn’t textbook leaving the scene.” And he said even though there was a witness to the accident, without the officer seeing it himself, “it was basically hearsay” on the failure to yield charge.

“Whether it was Ron Brockmeyer or John Doe lawyer that came in to see me, I would have made the same recommendations if I thought the case merited that disposition,” he said.

The benefit of working as a defense attorney by day, Corlija said, is he was able to spot holes in the case.

“I looked at it from the perspective of a defense lawyer, not just a municipal prosecuting attorney,” he said. He said Slate had declined medical treatment and had a civil remedy, and that’s where Corlija thought the case belonged.

Battreal, who had been sued unsuccessfully over another accident two years earlier when he allegedly struck a vehicle while making a left turn on the same road, could not be reached for comment. No citation was issued in that accident.

Thomas Harvey, from ArchCity Defenders, said the example illustrates many problems with the municipal courts. Corlija and Brockmeyer know each other not only as judge and prosecutor but also as private attorneys.

“Regardless of whether or not there were favors being traded, it gives the impression that there may well be,” Harvey said. “If we are ever to have a credible, functioning system that calls itself justice, these kinds of conflicts have to be eliminated.”

The Post-Dispatch found multiple examples like this in just a small sampling of court dockets that were made available by the courts. While a few courts have freely shared records with the newspaper, the vast majority have conducted their business in secret, citing what they claim are protections under Supreme Court operating rules.

Two other examples:

• As a defense attorney, Smith represented a client in Ferguson while Brockmeyer was judge. Around the same time, Brockmeyer was defending a client in Berkeley, where Smith is prosecutor. The two men also served together in Dellwood, where Smith is judge and Brockmeyer was prosecutor.

Smith said he didn’t see a conflict because most of his requests for plea bargains are sent to the court without him appearing. If he must appear before a judge, he switches the venue to St. Louis County Circuit Court. Smith said as a prosecutor, he doesn’t look at the attorneys’ names on requests he gets. “I’m really torn why others see it as a conflict,” he said, noting lawyers roles routinely vary. “It’s been that way since the beginning of lawyering. We are sort of like chameleons. We take on the interest of whomever we are representing at the time.”

• In Hillsdale, Raphael Morris defended clients on resisting arrest, speeding, driving with a suspended license and other violations, all of which were dismissed or amended to nonmoving violations for hundreds of dollars in fines each. The judge and prosecutor in Hillsdale, Victor Thompson and Alan Baker, each defended clients in Pagedale, where Morris is judge. Those charges were also dismissed or amended upon payment. Baker said the cases were treated the same as any other, and a defense attorney’s municipal position “just doesn’t come into play. What the prosecutor would do for one, the prosecutor is going to do for another.” When conflicts do arise, he said, you “absolutely have to recuse yourself.”

‘MAKE THAT GO AWAY’

In one case, a municipal court official streamlined a deal for another court figure by combining his roles as judge and prosecutor.

In May 2009, D’Agrosa wrote an email to Cheung about a client D’Agrosa was defending.

Jason Carrington, of Clayton, was on probation after pleading guilty to drunken driving in 2007 in Frontenac, where Cheung is prosecutor. If Carrington avoided another DWI arrest during two years of probation, the case would be wiped from the public record without a conviction.

But Carrington was arrested for another DWI in 2009 in Ladue, where Cheung is the judge.

D’Agrosa worked out a deal with the Ladue prosecutor, James Towey for Carrington to plead guilty to excessive blood-alcohol content, a charge akin to DWI, but involving fewer points assessed against the driver’s license.

But the Frontenac court sent Carrington a notice that he had violated his probation. It meant Carrington was facing two alcohol-related driving convictions, and a likely loss of driving privileges for five years.

In an email, D’Agrosa reminded Cheung that as part of the deal in Carrington’s case in Ladue, where Cheung is the judge, Cheung had promised not to revoke Carrington’s probation in Frontenac, where he was prosecutor.

D’Agrosa wrote: “You told me you would not move to revoke probation (in the Frontenac case) so he could avoid two convictions. Make that go away.”

Records show that Frontenac, in fact, did make it go away.

“Mr. D’Agrosa separately proposed to me, as the prosecutor in Frontenac, that if his client took a conviction on his Ladue offense, I would then make a recommendation to the judge in Frontenac to not revoke his probation,” Cheung said this month in an email.

“This is a common request, one made by many attorneys advocating for their clients in similar situations. Consistent with such other cases, I made my recommendation to the judge in Frontenac and she ultimately decided not to revoke the probation as there was only a few weeks left before Mr. Carrington’s probation was due to expire.”

D’Agrosa said it would have been better to ask that a provisional judge be assigned to the Ladue case. But he said the disposition was appropriate.

D’Agrosa said what happens in one court can carry over to another court, but it is always for a good reason.

“It did in this case,” he said. “I advised my client to plead guilty to the BAC conviction and suffer the consequences of that conviction as opposed to advocating for another (suspended imposition of sentence), which would not have been impossible. I’m not saying I would have got it, but I negotiated the conviction because that consequence helped me convince Frontenac not to revoke his original probation.”

Carrington lost his license for a year, and went another year without driving by choice. He said he “stopped being stupid” and has avoided more DWIs.

Roediger, of SLU, called it “a perfect real life example of the conflicts that we talk about in theory.”

“Cheung absolutely had an affirmative duty to recuse himself as judge on the second charge,” Roediger said. “Once he failed to do so, he had a further duty to withdraw as prosecutor on the first. His promise, while acting as judge, to effectively ‘fix’ the probation issue was also unethical.

“The whole thing is just flat embarrassing as is the insistence on defending it,” Roediger said.

In reality, the best deals go to those who don’t even have to hire lawyers.

The Department of Justice report found more than a dozen examples where top officials in Ferguson, including Brockmeyer, had charges erased there and elsewhere as favors to others. The report said the practice appeared widespread across the court system. The Post-Dispatch reported two weeks ago on one such example involving Cheung, as Frontenac’s prosecuting attorney, and Wes Dalton, then an associate circuit court judge in Warren County. Other lawyers say ticket fixing happens regularly.

Still, court officials insist it doesn’t.

“The only thing we have is credibility of the court,” said Stuart O’Brien, prosecutor in Beverly Hills. “That’s an uphill climb, and it always has been ... that’s why one of the items in the judicial canon of ethics is to avoid even the appearance of impropriety.”

Beverly Hills dismissed 30 percent of its traffic cases in the fiscal year that ended in June 2014. When a charge is dismissed municipal courts seal the record, citing the state’s public record law.

Asked how the public can be reassured of fairness if all dismissed cases are sealed, O’Brien responded, “I believe in the current climate there’s nothing I’m going to say that’s going to reassure the public of anything.”

“Is there at times maybe an isolated occurrence? I’d be silly to argue there isn’t,” Corlija said. “But I can tell you this much: Any prosecutor or any judge worth their salt isn’t doing it.”

ETHICAL ISSUES?

Michael Downey, a St. Louis attorney who advises other lawyers on ethics and disciplinary issues, said judges are expected to be able to consider each case on its merits, without outside influence.

Judges are supposed to recuse themselves if they have a personal bias or prejudice against a party or a party’s lawyer, or if they have an economic interest in the matter of controversy.

In their role as private attorney, he said, they have to be careful not to suggest that their judicial position will help them secure better deals for their clients.

In a November report, the civic and business group Better Together called upon Missouri lawmakers to prohibit role swapping.

“This study does not contend that the attorneys serving as judges and prosecutors in these municipalities are biased or unprofessional. However, perception matters greatly in the justice system,” it noted.

Some states have drawn strict lines.

In New Jersey, municipal judges are part of single court system, and report to a presiding municipal judge. Municipal judges can practice law, but not criminal law. Municipal prosecutors can take on clients for a criminal defense practice, but not in the county where they work as prosecutor.

Similar prohibitions exist for part-time judges in Arkansas and Michigan, where traffic cases are handled by district courts.

A bill in the Missouri House would prohibit full-time prosecutors from serving as municipal judge, and would keep judges, prosecutors and city attorneys from serving simultaneously in different municipal roles (although one could be judge in several municipalities). It would also prohibit a municipal judge, prosecutor or city attorney from working as a criminal defense attorney.

Daniel K. Knight, the Boone County prosecuting attorney and president of the Missouri Association of Prosecuting Attorneys, told a Senate subcommittee recently that the association doesn’t believe municipal prosecutors should also do defense work. And he thinks the Legislature should evaluate whether municipal prosecutors should represent drunken-driving defendants fighting drivers license suspensions in state court.

“I just believe,” he said in a later interview, “that this doesn’t look like a fair system.”

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Jennifer S. Mann is a reporter for the St. Louis Post-Dispatch.

Stephen Deere is a reporter for the St. Louis Post-Dispatch.

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