Prolonged inquiries into prosecutors’ ‘dirty laundry’ invite claims of bias

By: - December 6, 2020 9:00 am
Former Shawnee County prosecutor Jacqie Spradling admitted during a disciplinary hearing in this Topeka office building on charges of ethical misconduct that she denied fair trials to a Shawnee County murder defendant and a Jackson County rape defendant. (Sherman Smith/Kansas Reflector)

Former Shawnee County prosecutor Jacqie Spradling admitted during a disciplinary hearing in this Topeka office building on charges of ethical misconduct that she denied fair trials to a Shawnee County murder defendant and a Jackson County rape defendant. (Sherman Smith/Kansas Reflector)

TOPEKA — Career prosecutor Jacqie Spradling will fight to preserve her reputation and law license this week in a Topeka building nestled among the weeds of a natural bio-system for cleansing the city’s sullied runoff.

The hearing will take place in a makeshift pandemic-fitted courtroom with restricted access inside the Kansas Office of the Disciplinary Administrator, which four years ago began reviewing complaints of Spradling’s pattern of misleading juries in high-profile criminal cases.

Few people will be allowed into the small space designated for Jacqie Spradling’s hearing. Reporters are allowed to watch via video conference with orders not to record of take screenshots of the proceedings. (Sherman Smith/Kansas Reflector)

Investigators recommended Spradling face ethics charges for her misconduct in Shawnee and Jackson counties, where she worked as a prosecutor. She now handles cases for Bourbon County.

The prolonged investigation into Spradling and other prosecutors raises concerns about the fairness of a system that moves more quickly for other kinds of attorneys.

“It shows a tremendous bias in favor of prosecutors to keep their dirty laundry secret as long as possible,” said Keen Umbehr, an Alma attorney. “Now, when a defense counsel screws up in a criminal case? Katy, bar the door.”

In addition to Spradling, there are pending complaints against former Douglas County and Kansas City, Mo., prosecutor Amy McGowan, as well as federal prosecutors who listened to attorney-client conversations at a federal pretrial detention center in Leavenworth.

Stan Hazlett, the state’s disciplinary administrator, rejected claims that his office gives special treatment to prosecutors.

“They are not treated differently,” Hazlett said. “I mean, I understand the concern about the length of time this particular case took, but there are reasons for that.”

 

An unfortunate mistake

Umbehr filed a complaint against Spradling in August 2016 for relying on nonexistent evidence to convict Dana Chandler of a double murder in Topeka.

Unlike other attorneys, prosecutors who face complaints are typically investigated by fellow prosecutors. Hazlett said prosecutors best understand the boundaries of the job and are motivated to make sure nobody gives the profession a bad name.

In the Spradling case, Sedgwick County deputy district attorney Ron Paschal initially determined she had done nothing wrong.

Spradling had told the jury Chandler was guilty because one of the murder victims had secured a protection from abuse order, and Chandler then violated the order by breaking into his home. When the case was appealed, Spradling acknowledged during arguments before the Kansas Supreme Court that there was no order, let alone a violation of it.

“To this investigator, it is understandable how the mistake was made, although it was unfortunate,” Paschal wrote in his Aug. 28, 2017 report for Hazlett’s office.

In April of 2018, the Supreme Court overturned Chandler’s convictions on the basis of Spradling’s “misstatements and misdirection.” The ruling said the record “strongly suggests” Spradling knew the abuse order didn’t exist when she talked about it in front of the jury.

Umbehr said the court ruling proved a lack of credibility in Paschal’s report.

“Doesn’t he look stupid?” Umbehr said. “There’s no other word that I could say. It’s stupid or corrupt. You get to pick.”

Hazlett said he disagreed with Paschal’s report and wanted to wait for the high court decision before proceeding with the investigation into Spradling.

“I have a great, great deal of respect for this particular attorney,” Hazlett said of Paschal. “I just didn’t agree with his analysis of that, and neither did anybody else in the office when we talked about it.”

 

Prosecuting the prosecutor

After the Supreme Court ruling on Chandler, Hazlett’s office further investigated concerns with Spradling and turned the findings over to a review committee.

That panel, which consists of three attorneys appointed by the Supreme Court for the duty of reviewing claims about attorney misconduct, found probable cause in 2018 that Spradling had acted inappropriately.

Attorneys who face a disciplinary hearing for probable cause are effectively put on trial by Hazlett’s office. They can gather witnesses and evidence for their defense, or enter into a deal in which they admit wrongdoing in hopes of lesser punishment. Hazlett said the volume of documents associated with the Chandler case and COVID-19 restrictions were responsible for two years of delays for Spradling’s hearing.

In the meantime, the Kansas Court of Appeals overturned a 2017 case in which Spradling prosecuted Jacob Ewing in Jackson County on charges of rape and other sex crimes. His convictions were overturned because Spradling misstated evidence.

Courts have cited Spradling’s conduct as a basis for overturning convictions in at least four other cases in Shawnee County, where she worked from 2009 to 2017. After handling the Ewing case, she worked in Allen County and, since 2018, Bourbon County. She previously worked from 1991 to 2007 as a prosecutor in Johnson County, and from 2007 to 2009 in the Kansas Attorney General’s office.

Now, the tables have turned on the career prosecutor. Starting Monday and concluding Friday, the three-member panel will consider evidence from the investigation into Spradling’s alleged unethical behavior.

“Jacqie wants a fair trial,” Umbehr said. “She wouldn’t want some prosecutor lying about her, would she?”

The panel will forward a recommendation to the Supreme Court, which has the ultimate say.

A review by Kansas Reflector of attorney discipline considered by the high court shows that cases typically move more quickly, with hearings conducted within six months of the complaint being filed. After the hearing, there is no timetable for the court’s decision. Penalties include public censure, suspension of a law license, or disbarment.

 

Opening a doorway

KC Freedom Project founder Latahra Smith filed complaints against McGowan in October 2019 in both Kansas and Missouri.

The Missouri office heard McGowan’s case last week. The Kansas office has yet to find probable cause.

Latahra Smith, left, founder of KC Freedom Project, works for people who allegedly were falsely convicted of crimes. Smith takes to the street with her daughter, Paisley Canady, to advocate for Keith Carnes, who was convicted of murder in a case handled by former prosecutor Amy McGowan. (Submitted)
Latahra Smith, left, founder of KC Freedom Project, works for people who allegedly were falsely convicted of crimes. (Submitted to Kansas Reflector)

“Hazlett’s office has totally slow-played all of the complaints we submitted,” Smith said.

Missouri judges in 2006 and 2019 overturned murder convictions because McGowan withheld evidence that could have prevented innocent men from going to prison for murders they didn’t commit. The Kansas Supreme Court in 2013 overturned a conviction for sexual exploitation of a child because of improper comments by McGowan, a recurring theme in other cases she tried in Kansas.

Allegations of misconduct by prosecutors with the U.S. Attorney’s Office surfaced in 2016. Subsequent hearings and findings in federal court showed the prosecutors had collected recordings of more than 1,000 phone calls and 700 in-person meetings between detainees and their attorneys at the CoreCivic prison for people awaiting trial in Leavenworth.

U.S. District Judge Julie Robinson issued a 188-page ruling in August 2019 that held the U.S. Attorney’s Office in contempt of court. Prosecutors had disobeyed the court’s orders to preserve documents and recordings.

Hazlett couldn’t confirm whether his office was pursing an investigation against McGowan or the federal prosecutors.

The pace of inquiries into those prosecutors doesn’t surprise Smith, whose ministry advocates for the wrongfully convicted.

“I can tell you that I know the disciplinary process for prosecutors is held differently than it is from regular attorneys,” Smith said. “Regular attorneys can immediately get rolled up. Next thing you know, they’re in a hearing and they’re being disciplined if they’ve done something wrong.

“Prosecutors, it doesn’t go like that for them. They extend their time. They stretch it as far as they can. And they don’t discipline them. Because if they do, it opens a doorway for other cases that they prosecuted to be looked at a second time.”

Hazlett said he had never considered such a possibility.

“Never crossed my mind that our prosecution of a prosecutor for misconduct in a particular criminal case might result in a reversal of that conviction,” he said. “I would consider that to be a good thing if that were the case.”

 

Dirty little secret

The way Hazlett puts it, he and Umbehr have “a little history together.”

Their history stems from a complaint filed against Umbehr in 2009 by former Kansas Department of Corrections deputy secretary Charles Simmons.

Umbehr had brought Topeka Capital-Journal reporter Tim Carpenter, now the senior reporter for Kansas Reflector, into the women’s prison in Topeka to interview inmates who had been forced into providing sexual favors for prison employees. Carpenter’s reporting also revealed a corrections employee had driven a prisoner to Planned Parenthood for an abortion.

Simmons claimed Umbehr lied to prison staff about Carpenter’s identity, which wasn’t true. Still, Hazlett tried to convince Umbehr it was in his best interest to accept a diversion agreement.

Hazlett repeatedly told Umbehr the review committee had made a finding of probable cause, when in fact the panel had never considered the allegations. Hazlett later apologized, and the case against Umbehr was dropped.

“He does that to every lawyer — ‘take a diversion,’ ” Umbehr said. “You’re hemorrhaging huge sums of money to defend yourself on a system that does not give the respondent due process.”

The four year process between Umbehr’s complaint and Spradling’s hearing intensified tensions between Hazlett and Umbehr.

Hazlett’s office has blocked Umbehr from attending this week’s hearing, pointing to public health orders and the risk of COVID-19. The hearing was moved from the large courtroom at the Kansas Judicial Center to a room in Hazlett’s office, a small space where desks have been equipped with plexiglass barriers. News reporters will be allowed to watch by video conference and have been ordered not to take recordings or photos from the hearing.

Kansas Supreme Court rulings have made it clear that prosecutors who break the rules do so at their own peril.

“The dirty little secret is there is no peril,” Umbehr said. “Jacqie Spradling and these other prosecutors have not been brought to justice.”

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Sherman Smith
Sherman Smith

Sherman Smith is the Kansas Press Association’s journalist of the year. He has written award-winning news stories about the instability of the Kansas foster care system, misconduct by government officials, sexual abuse, technology, education, and the Legislature. He previously spent 16 years at the Topeka Capital-Journal. A lifelong Kansan, he graduated from Emporia State University in 2004 as a Shepherd Scholar with a degree in English.

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