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In a case of first impression in the state of Missouri, an appeals court has removed St. Louis County District Attorney Robert McCulloch’s office from prosecuting a murder case after a judge found prosecutors had violated the defendant’s attorney-client privilege, and thus her Sixth Amendment right to a fair trial.

McCulloch achieved national notoriety during the Ferguson events for his handling of the grand jury proceedings against Darren Wilson, which led to no charges in the death of Michael Brown. He has an outstanding bar complaint against him in that matter, which we wrote about here.

In the case at hand, murder charges were filed against Jennifer Winkler for the 2011 “shaking” death of a child in her home daycare business. The case has received wide attention and had an unusually complex progress toward trial, including multiple, mostly unsuccessful motions by the St. Louis Post-Dispatch to have records in the case unsealed in the public interest.

The central argument regarding prosecutorial behavior surrounds an episode late last year in which McCulloch’s office interviewed Winkler’s husband, Steven, about, among other things, his wife’s trial strategy when the office knew that both husband and wife had recently been represented by the same attorney.

Prosecutor’s “should have known”

Jennifer Winkler’s defense attorney in the murder case is a man named Neil Bruntrager. After the murder charge was filed, the state commenced custody proceedings regarding the Winkler’s own children. Shortly thereafter, Bruntrager signed on to represent both Jennifer and Steven Winkler in the custody matter in addition to his criminal representation of Jennifer. During this early phase, the appeals court writes, quoting the findings of fact by the trial judge, “Defense Counsel met numerous times with both [the Winklers] to discuss the interrelated juvenile and criminal cases.”

In the years that followed the Winkler’s marriage apparently frayed, and in November 2014, Steven filed for divorce. He hired new counsel to represent him in the divorce and the ongoing custody case, requesting that Bruntrager withdraw as counsel of record for him in the juvenile proceedings. Bruntrager promptly withdrew as counsel to both Winklers in the custody matter, but he remained Jennifer Winkler’s attorney in the criminal matter.

According to the appeals court, what happened next was this:

In September 2015, the Prosecuting Attorney’s Office received a multiple page email regarding Husband’s thoughts about [his wife], their marriage, their history together, and information about the pending cases. The Prosecuting Attorney’s Office forwarded this information to Defense Counsel. In October 2015, [Jennifer Winkler] moved to exclude documents acquired by the Prosecuting Attorney’s Office on the basis of violations of [her] spousal privilege, attorney-client privilege, and work-product privilege. Nevertheless, assistant prosecuting attorneys interviewed Husband on November 17, 2015, and questioned him about [his wife’s] trial strategy, defenses, and other privileged information.

What has ensued since is extensive motion practice regarding the prejudicial character of the information prosecutors gathered from the interview, the proper remedy for the breach of privilege, and the propriety of unsealing the records in the case, including the information contained in the prosecution’s interview of Steven Winkler.

While the trial court judge, Steven Goldman, found that Jennifer Winkler’s Sixth Amendment rights had been violated, he further found that “because the assistant prosecutors did not understand they violated Winkler’s attorney-client privilege, there was no intentional fraud upon the court.” Nonetheless, because the violation of privilege provided an illegitimate tactical advantage to the prosecution, he fashioned a remedy of excluding certain portions of the information gleaned from Steven Winkler.

Arguing this was insufficient, and that the entire St. Louis County DA’s office now had at least constructive possession of privileged information, Jennifer Winkler sought a writ of mandamus ordering the trial court to dismiss the charges or, in the alternative, remove McCulloch’s office entirely from the case.

A Case of First Impression

“This case is unique,” the appeals court writes, agreeing with Winker to issue a rare mandamus order. “The parties have not provided, and our research has not revealed, Missouri cases regarding motions to disqualify a prosecuting attorney’s office for violating a criminal defendant’s Sixth Amendment rights.”

Holding that the lower court’s “fraud upon the court” standard, rather than a constitutional analysis “inherently underestimated possible damage to [Winkler’s] rights,” the reviewing judges found Goldman’s refusal to remove McCulloch’s office an “abuse of discretion.”

Given that the entire Prosecuting Attorney’s Office has had access to privileged materials, and that proceedings in this murder case are ongoing, it would be error to conclude we can prospectively quantify and neutralize the taint of the attorney-client privilege and due process violations simply by excluding evidence. We have concluded that ‘the bell cannot be unrung.’ Therefore, we order that the Prosecuting Attorney’s Office is disqualified and a special prosecutor must be appointed…We further order the Prosecuting Attorney’s Office to purge all excluded evidence from their files before turning those files over to a special prosecutor, and to refrain from discussing the excluded information with the special prosecutor.

While the court is to be commended for fashioning a far stiffer, and apparently unprecedented remedy to cure the breach of Winkler’s privilege, it remains hard to fathom how prosecutors could not know that they were engaging in a violation when they interviewed her husband. The very fact that they specifically questioned him regarding his wife’s trial strategy as discussed with her counsel—a subject that is privileged by definition, unless announced publicly—would seem to establish that they were intentionally seeking a forbidden advantage at trial. Either this or their negligence was far more serious than the trial court’s suggestion that they “did not understand” that they were misbehaving.

But here, however, is where the issue of sealing records intersects with our ability, or the Post-Dispatch’s to know more about what prosecutors’ actions and intentions really were. Because the trial has yet to occur—the court declined to dismiss the charges—it rightly decided that to unseal the documents surrounding the interview of Steven Winkler could easily violate Jennifer Winkler’s right to a fair proceeding by letting the privileged information enter the public realm.

In this regard, McCulloch’s office has been strangely lucky. While it has been removed in unprecedented fashion from a high profile murder case and forced to step aside for a special prosecutor, because of the very nature of its misconduct, it has been spared the public scrutiny its behavior deserves.



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