Kansas prosecutors must be held to a higher standard. To do otherwise courts injustice.

October 23, 2022 3:33 am

The Neosho County Courthouse is pictured earlier this month. The county’s prosecutor, Linus Thuston, has been criticized by local leaders. (Sherman Smith/Kansas Reflector)

It’s time for the Kansas Supreme Court to make it harder for bad prosecutors to escape discipline for misconduct.

Prosecuting attorneys have unparalleled discretion in the criminal justice system to bring charges, offer diversions, forge plea agreements, or take a defendant to trial. Their mistakes could send innocent people to prison or jeopardize the prosecution of the guilty. Their misconduct undermines the public trust. Because they have the lives of criminal defendants in the palms of their hands, they must be held to a higher standard than other attorneys.

But as in other parts of the country, prosecutors here seem to get favorable treatment when a disciplinary complaint is filed against them. In Kansas, these complaints are investigated by the Disciplinary Administrator’s Office, which investigates and makes recommendations. These recommendations go to a three-attorney panel that can approve or modify them, sometimes after a public hearing. The panel’s decisions are final, unless appealed to the Kansas Supreme Court, which sets the rules and oversees the disciplinary process.

Just take the case of Linus Thuston, the Neosho County prosecutor who was the subject of a months-long investigation by Kansas Reflector editor Sherman Smith. Thuston, who has been prosecutor in the southeast Kansas county of about 16,000 residents for the past decade, has been accused by current and former sheriffs and other critics of misusing county credit cards, employing his influence as a prosecutor to aid private clients, cutting lenient deals with child rapists, and using diversion fees to pad his office budget.

Thuston’s office even publishes a fee schedule for diversion for various categories of crime, a kind of diversion menu going from $75 to a misdemeanor traffic ticket to $1,500 for a felony drug offense. Some diversion fees, however, were reportedly as high as $10,000.

“Justice is for sale in Neosho County,” said Jim Keath, a longtime former Neosho County sheriff. “Justice has been for sale for as long as he’s been county attorney.”

The Disciplinary Administrator’s Office has determined three times that Thuston committed ethics violations but has allowed him to continue practicing law, according to the Reflector’s reporting. In the latest determination, made in February, the office said Thuston had neglected his prosecutorial duties but weighed that against eight letters of support from community members. Thuston is a church deacon and an Army National Guard veteran.

At least one of those letters now appears to have been faked.

The Disciplinary Administrator's Office has determined three times that Thuston committed ethics violations but has allowed him to continue practicing law, according to the Reflector's reporting.

– Max McCoy

Thuston has vigorously denied allegations of misconduct.

Previously, in an interview with the Reflector, he said he would hold his tongue.

“There are things I could say about my accusers, but I’m supposed to really be trying to hold my peace and let the Lord fight my battles,” he told Smith. “And so, in the past, I tell you I would have been very aggressive in my defenses. But I’m a changed person.”

Thuston said that he had made a promise to God that, if delivered from the most recent disciplinary challenge and allowed to keep his law license, he would spread the Gospel. He also said that he felt he was being called to a higher ministerial calling.

It’s too bad that God doesn’t tell him to give up the law.

Then there’s the case of Jacqie Spradling, the former Shawnee County prosecutor disbarred in May by the Kansas Supreme Court for ethical violations in a murder case. A three-attorney panel found Spradling had “knowingly and intentionally” engaged in deliberate misconduct to win convictions, including in a double murder case against defendant Dana Chandler. That verdict was overturned on appeal.

Spradling, who had also practiced in Wyandotte, Bourbon and Allen counties, won an estimated 80 murder convictions in her career. All of those convictions now carry the stain of suspicion. Despite the three-attorney panel finding a years-long pattern of misconduct by Spradling, the disciplinary administrator independently urged the Kansas Supreme Court to impose a lesser punishment than permanent disbarment. She initially had been cleared by the office in 2016 after a complaint was brought against her for relying on nonexistent evidence in the Chandler case.

Chandler, who is accused of the 2002 killings of her former husband and his fiancee, is awaiting retrial on two counts of first-degree murder.

Why are prosecutors often given preferential treatment by disciplinary boards?

Like the police, they enjoy a presumption of good faith. Call it the Jack McCoy effect, after the prosecutor in 17 seasons of “Law & Order.” McCoy (no relation, because he’s a fictional character) is a tough and lovably flawed prosecutor. He is expertly played by Sam Waterston, who specializes in crusty but sincere. Even those of us who cannot name the county attorney in their jurisdictions are probably familiar with McCoy and might even be able to recite the program’s opening narration, “In the criminal justice system …”

Dun-dun. Cue the theme music.

There are plenty of honest and hardworking prosecutors in Kansas. County attorneys are also elected officials whose names go on the ballot every four years. Being a prosecutor is a difficult job and in just about every circumstance, these individuals could make more money in private practice. But it isn’t money that motivates the best prosecutors. It is a sense of duty, of public service, of justice.

“While the prosecutor at his best is one of the most beneficent forces in our society,” said Justice Robert H. Jackson, “when he acts from malice or other base motives, he is one of the worst.”

Jackson served on the U.S. Supreme Court from 1941 to 1954. During a leave of absence from the court, he was also the chief U.S. prosecutor of Nazi war criminals at the Nuremberg trials.

Prosecutors are the last line of defense for public safety in a democracy. Ideally, they put the common good over personal or political interest. They serve as a buffer between the power of the police and the interests of the citizenry, and they are champions for the victims of unspeakable crime. They deserve our respect and, in many cases, our admiration.

But we should not turn a blind eye to misconduct.

For justice to be served, it is necessary for the Kansas Supreme Court to reform the code of conduct for attorneys and reshape the Disciplinary Administrator’s Office to hold prosecutors to a higher standard — and to keep the worst out of the courtroom.

Max McCoy is an award-winning author and journalist. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.


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Max McCoy
Max McCoy

Max McCoy is an award-winning author and journalist. A native Kansan, he started his career at the Pittsburg Morning Sun and was soon writing for national magazines. His investigative stories on unsolved murders, serial killers and hate groups earned him first-place awards from the Associated Press Managing Editors and other organizations. McCoy has also written more than 20 books, the most recent of which is "Elevations: A Personal Exploration of the Arkansas River," named a Kansas Notable Book by the state library. "Elevations" also won the National Outdoor Book Award, in the history/biography category.