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Friday, Dec. 19, 2014

Your view: Judge responds

Tuesday, January 24, 2006

In Missouri, an individual is usually brought to trial on either an information signed by a Prosecuting Attorney or an indictment returned by a Grand Jury. A misdemeanor charge can be initiated on the basis of a Grand Jury indictment or with an information charging the misdemeanor filed by the Prosecuting Attorney. A felony is initiated by the return of an indictment or by a complaint by the Prosecutor filed with the Court having jurisdiction over the trial of misdemeanors. In felony cases if the charge is initiated by complaint in lieu of indictment, the information will be filed by the Prosecuting Attorney after the preliminary hearing has been held and the Judge has found both probable cause and has bound the Defendant over for trial. It should be noted that in both misdemeanor cases and felony cases the individual actually goes to trial on an information or an indictment; however, misdemeanor charges are initiated by the filing of an indictment or an information whereas felony cases are initiated by the filing of an indictment or complaint.

The requirements for a valid complaint for misdemeanor and felony charges are the same except that a Prosecuting Attorney may initiate the felony complaint on "information and belief."

A complaint must be in writing and shall:

a. State the name of the Court;

b. State the name of the Defendant or, if not known, designate the Defendant by any name or description by which the Defendant can be identified with reasonable certainty;

c. State the facts constituting the felony;

d. State the date and the place of the felony as definitely as can be done;

e. Be supported by a statement of probable cause as prescribed by Rule 22.03: and

(f) Be signed by the Prosecuting Attorney on information and belief that the offense was committed.

There have been countless inquiries regarding the calling of the Grand Jury for Mississippi County. The original request came from Darren Cann, Prosecuting Attorney of Mississippi County by letter dated September 8, 2005. At this point, I would have to indicate that I am not disclosing any confidential information between my office and Mr. Cann's office inasmuch as his letters, through some process, were forwarded to a reporter for the Southeast Missourian newspaper who quoted both of his letters in his articles, and advised me that he had studied Mr. Cann's letters. On September 25, 2005, Mr. Cann requested that a Grand Jury be impaneled to investigate approximately 60 drug cases in Mississippi County, two murder cases and approximately 20 failure to register as sex offender cases. About three weeks later on November 21, 2005, Mr. Cann again wrote my office indicating that he was now requesting the Grand Jury to also investigate matters including the missing property and funds from the Mississippi County Detention Center.

At this point possibly some history of the Mississippi County Detention Center matter may be helpful. On August 18, 2004, then Prosecuting Attorney, Jennifer Raffety contacted my office, advised me in regard to the allegations of possible missing Mississippi County Detention Center funds and requested that a Special Prosecuting Attorney be appointed to handle the investigation. On that date, I signed an Order appointing the Missouri Attorney General as Special Prosecuting Attorney. Since my office is not involved in the investigation of these matters, I was never privileged to any of the matters investigated by the Attorney General. No one from the Attorney General's Office ever contacted my office, nor was a Grand Jury requested by the Attorney General.

On September 30, 2004, Darren Cann was sworn into office as the new Mississippi County Prosecuting Attorney. The Attorney General's Office continued to handle the investigation of this matter until sometime around November 1, 2005, when I received a Motion from Darren Cann for reappointment of the Office of Prosecuting Attorney of Mississippi County as the Prosecutor handling the investigation of missing funds from the Mississippi County Detention Center.

I inquired as to the reason for the withdrawal of the Special Prosecuting Attorney and was advised that the current Prosecuting Attorney of Mississippi County has no social or professional relationship with the former employees of the Mississippi County Detention Center, therefore, no conflict of interest existed. Over one year had passed since the apparent conflict of interest was resolved upon Mr. Cann taking office. In an attempt to resolve this matter, I requested that Mr. Cann schedule a meeting between the Attorney General's Office, himself and me. That meeting was scheduled, but cancelled the day before the meeting by the Attorney General's Office. I then requested that Mr. Cann arrange a meeting with the investigators from the Missouri State Highway Patrol and himself to discuss the matters involving missing property and funds from the Mississippi County Detention Center. This meeting was arranged and attended by three investigators from the Missouri State Highway Patrol, Mr. Cann and myself. Since those matters involve an ongoing investigation, the results of that meeting are not public information.

Following that meeting, I requested that the Mississippi County Clerk set on the County Commission Agenda a meeting between myself, Mr. Cann and the Commission to discuss litigation and legal matters. That meeting was held and attended on December 15, 2005.

At the meeting attended by all of the Commissioners, Mr. Cann, myself and the County Clerk, I advised the Commission that if the Grand Jury was called that I would most likely appoint a Special Prosecuting Attorney and that this would involve considerable sums of money beyond that appropriated for the expense of calling a Grand Jury. I have received numerous letters and phone calls or visits from individuals who believe that other Mississippi County individuals, government employees, and/or elected officials may have "done something wrong." If the Grand Jury were to be called, those matters in addition to missing detention center funds and property, murders, drug investigations, etc., would come before the Grand Jury. Since these matters involved former and current government employees, I believe that a Special Prosecuting Attorney would be necessary to avoid the appearance of a conflict of interest. The process will be a very time consuming operation with the possibilities of many cases eventually to be tried.

Following my meeting with Mr. Cann and the investigators, I suggested to Mr. Cann if he wanted to file a criminal complaint in this matter, that I would ask the Supreme Court to appoint a Judge to accept his complaint, issue warrants and set bonds as necessary. I indicated to him that this would be done to avoid even the appearance that anyone connected with the Court was doing anything wrong or improper. Mr. Cann has never contacted my office regarding the filing of a complaint involving missing monies or property from the Mississippi County Detention Center. The Court's statistics indicate that since Mr. Cann became Prosecuting Attorney, 522 felonies and 559 misdemeanors have been filed. Mr. Cann has yet to try a case before me and I have nothing upon which to gauge his competence to lead a complicated Grand Jury investigation.

Indictment by a Grand Jury is not the only way to bring criminal charges in the State of Missouri. The reporter for the Southeast Missourian in his letter to me indicates that Mr. Cann claims that there is a back log of criminal cases in Mississippi County. Possibly this back log can be addressed by vigorous, thorough and complete investigation and filing of criminal charges where justified. Only the Prosecuting Attorney can file and initiate a felony complaint on information and belief.

I am not opposed to the use of a Grand Jury to investigate and prosecute crimes. I operated two Grand Juries in Scott County as Prosecuting Attorney, and continue to impanel Grand Juries in Scott County. The appointment of a Grand Jury in Mississippi County is a complicated matter that will involve the appointment of a Special Prosecuting Attorney. Since November 1, 2005, when Mr. Cann determined that he did not have a conflict of interest in regard to the investigation of missing property and funds from Mississippi County Detention Center, no one has stopped him from proceeding with a criminal charge by filing a felony complaint on information and beliefs. Should Mr. Cann determine those charges need to be filed he could do so immediately.

On January 23, 2006, Mr. Cann filed a Motion to Recuse me as Judge from considering the convening of a Grand Jury. I intend to grant the Prosecutor's request but not for the reasons stated in his motion. The Prosecutor claims that there is a close social relationship with the former Sheriff Larry Turley and Circuit Clerk Karen Turley, wife of the former Sheriff and the former Jail Administrator Don Chance. The business relationship with the Circuit Clerk's office is no different than that relationship of Mr. Cann. The luncheon dates that he cites in his motion are not private luncheon dates, but meals at which Court personnel, Probation Officers, Public Defenders and on many occasions Mr. Cann himself are present. In regard to the Prosecutor's allegations regarding a meeting between myself and Don Chance on November 17, 2005, Mr. Chance did appear at my office, as do many members of the public. I advised him that his presence would be inappropriate and I could not discuss any case matters with him. Mr. Chance then left my office. I am discouraged that Mr. Cann has chosen to cast a pall of impartiality in regard to this investigation.

Since Mr. Cann has chosen to make his procedure a media issues, I would request that this entire response be printed without editorial deletions.

David A. Dolan

Presiding Circuit Judge

33rd Judicial Circuit