The Dimwit D.A.

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It was nearly two weeks before Republican Party leaders met in December to pick a new Johnson County district attorney. Two of the leading contenders, Phill Kline and Scott Hattrup, had arranged a secret meeting in a prominent Johnson County Republican’s basement entertainment room. It was a weekday, after business hours, and Kline was fresh from meeting with GOP leaders to convince them to vote for him. He wore a tie and a blue shirt. He sat in the only seat available, across a counter from Hattrup. Kline was ready to make a deal.

Hattrup says a pair of well-known GOP leaders had brokered the meeting. They sensed “a Republican train wreck coming” if Hattrup and Kline faced off in a special vote for Johnson County district attorney. They suggested that Hattrup speak with Kline. Kline wasn’t returning Hattrup’s calls, so one of the Republicans had set up the meeting.

In November, Kline had lost his bid for re-election as Kansas attorney general. The man who beat him was Johnson County District Attorney Paul Morrison. Kline began a stealth campaign to switch jobs with Morrison and become Johnson County’s top prosecutor.

Hattrup was the only other conservative Republican in a race of four lawyers vying for the job. Hattrup knew he couldn’t win. Kline had earned support among the conservative wing of the party for his crusade against abortion. But Hattrup, a stocky, reddish-bearded defense lawyer, wasn’t about to go quietly. “I was not going to back down,” Hattrup recalls, “just because Phill Kline wanted me to back down.”

Kline could wrap up the conservative vote with Hattrup out of the race. He offered Hattrup a deal. If he dropped out, Kline would hire him as a prosecutor.

Kline and Hattrup went way back. Hattrup, an anti-gun-control, anti-embryonic-stem-cell-research Republican, helped Kline in his 1998 race for the Kansas statehouse by digging up dirt on Kline’s opponent. When Kline ran for Congress in 2000, Hattrup alerted him to the fact that Kline’s law license had expired. More recently, Hattrup helped Kline in his unsuccessful re-election campaign for attorney general.

Even with all this history, Hattrup asked Kline to put the deal in writing. Kline refused. Hattrup asked for some assurance. Hattrup remembers that Kline told him slowly and deliberately, “You will be able to prosecute cases in my office.”

Hattrup took the deal.

But Kline didn’t want Hattrup to drop out just yet. Kline wanted him in the running until the night of the special election. Kline also told him not to go public; he didn’t want the media to find out about the deal.

The night of the December 11 special election went as planned. When the meeting began, a delegate nominated Kline. Hattrup pulled out.

Kline won, 316-291. Kline’s victory speech was short. “I look forward to working with all of you to ensure that justice is served, that the right decisions are made and that our communities and children are safe,” Kline said, according to an article in The Olathe News. “Thank you very much for this honor.”

Later that night, Hattrup ate with Kline’s entourage at a Ruby Tuesday. “As far as I knew, I was one of the gang,” Hattrup says.

On January 8, Hattrup attended Kline’s swearing-in ceremony. Kline told him that they needed to set up a meeting to discuss Hattrup’s hiring. Two days later, Kline summoned Hattrup to his office. Kline was direct during the 45-minute meeting. Kline spent most of the meeting explaining why he was backing out of the deal. Kline even claimed that it was Hattrup who hadn’t honored their agreement. “I’m not going to do it,” Hattrup recalls Kline telling him. “I’m not going to hire you as a prosecutor.”

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“If I had to put money on it, I would have bet on it happening exactly the way that it played out,” Hattrup says of the deal. “Phill’s goal is to make sure Phill Kline gets what Phill Kline wants.”

Finally, Kline offered Hattrup a part-time job prosecuting traffic cases. “I considered it an insult,” Hattrup says. “I considered it him trying to cover his promise.” However, Hattrup considered the job. He wouldn’t have a chance to make a decision. The next morning, Kline called Hattrup and told him the job was off the table.

The broken promise is one example of the skullduggery that has plagued the first six months of Kline’s two-year term as district attorney. Kline has fired or run off nearly every experienced prosecutor in the District Attorney’s Office. Of the 32 prosecutors who served under Morrison, 18 have resigned or been dismissed. Many of Kline’s handpicked replacements lack experience, and a number of his experienced prosecutors come with checkered pasts. Kline has been accused of alienating anyone who won’t support him politically. A top prosecutor has charged that Kline bugged her office. Most significantly, his prosecutors have fumbled several important criminal cases.

The Pitch made several requests for interviews with Kline and his assistant district attorneys. Kline declined to comment. At a press conference last week, the Pitch asked Kline to assess his six months in office so far. “We’ve done some good things,” he said. Kline claimed that his office has done more to cooperate with federal prosecutors, has improved the process of prosecuting DUI cases and has cut payroll costs. “But I don’t anticipate that much of that will get out,” he added.

Meanwhile, several former and current employees have detailed for the Pitch the many alleged missteps of Kline’s office.

Bryan Denton’s first and last duty under Phill Kline was to set up Kline’s January 8 swearing-in party. Denton, the office’s chief investigator for 15 years, was sent to a Hy-Vee store with Sheila Fanning, a supervisor in the juvenile unit. They bought sandwiches, veggie trays and cake. They took the food to a meeting room on the third floor of the Johnson County Courthouse.

Denton set up the reception and photographed the festivities. Afterward, he returned to the office, where his letter of termination was waiting.

“We didn’t know that we were going to get your last meal, did we?” Fanning asked Denton.

“No, we didn’t,” he said.

That morning, Kline’s hatchet man, Chief Deputy District Attorney Eric Rucker, moved through the office handing out letters of termination. “Your employment with the Johnson County District Attorney’s Office is terminated as of 11:00 a.m. today, January 8, 2007,” the letters read. “You should turn in all County-issued property and remove your personal items from your space before 5:00 p.m. today. Thank you for your service.”

The letters weren’t signed by Kline. They were signed by Rucker.

The eight fired were Denton; Mike Allen, a prose-cutor for two and a half years in the sex-crimes unit; Jennifer Barton, a member of the domestic-violence and sex-crimes units; Norah Clark, a prosecutor in the traffic unit; John Fritz, a 20-year prosecutor and an expert in juvenile law; Steve Howe, an 18-year prosecutor and the head of the intern program; Kristiane Gray, a prosecutor in the juvenile unit; and Kendra Lewison, a prosecutor for five years.

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The fired employees, dubbed the “Olathe Eight” in newspapers and on television, sued Kline on January 16. The suit, now in federal court, alleges that Kline denied them their due-process right to hearings with the county to contest their firings.

As Rucker delivered pink slips, Kline’s lead prosecutor, Stephen Maxwell, poked his head into the offices of the surviving prosecutors. Assistant District Attorney Jenifer Ashford had just finished helping Lewison clean out her desk when Maxwell arrived.

“Ashford?” Maxwell asked.

“Yeah.”

“OK, you’re fine,” he told her before walking away.

“That’s how I found out that I wasn’t fired,” Ashford recalls.

Kline stripped assistant district attorneys of their discretion to plea-bargain felony cases. All deals had to run through the section chiefs and then be approved by Kline or both Maxwell and Rucker.

Rumors of hidden video cameras near the break room circulated through the office. An atmosphere of distrust grew between the Kline hires and the surviving members of Morrison’s staff.

The defections resumed in late April. Five more experienced prosecutors bolted: Ashford, Brent Venneman, Vanessa Riebli, Erica Schoenig and Kathryn Marsh. Riebli, who led the unit that handles economic crime, would have been 100 percent vested in her retirement account if she had stayed two more months. She couldn’t wait. She resigned April 23.

On March 19, Assistant District Attorney Jacqie Spradling sent Kline, Rucker and Maxwell a memo expressing concern “that dysfunction in the D.A.’s Office is creating a public safety crisis.” The letter continued: “Criminals are walking the streets of Johnson County because this office has botched cases that would have been routine successes in the past…. We cannot wait for the new hires to learn their jobs — we have a crisis that needs to be addressed now. I respectfully suggest that you arrange for the temporary assignment of experienced prosecutors from the A.G.’s office to our office.”

Spradling also filed a complaint March 19 with the county’s human resources department. The complaint claimed that female attorneys in the District Attorney’s Office were being discriminated against and that anyone who complained was threatened with retaliation. And Spradling alleged that her office had been bugged. Johnson County’s human resources department began an investigation into Spradling’s allegations. The county requested additional information from Kline’s office. On April 20, Kline’s office replied that it would not cooperate with the investigation.

On April 24, Kline fired Spradling over the phone. Spradling says Kline didn’t specify the reason.

Spradling spoke to a packed room of Johnson County women Democrats on May 22. Spradling explained that being an outspoken woman in Kline’s office was unacceptable. “As a whole, women are not viewed as folks that should be expressing opinions,” Spradling said. “Turns out, I’ve got some. I was not supposed to express them, and the fact that I expressed them frequently I think they found annoying.”

Spradling also explained what led to her allegations that Kline had spied on her. In March, a person not affiliated with the District Attorney’s Office came to Spradling’s office and began writing on a piece of paper. The person wrote that they needed to talk away from the office. Spradling and the person met outside. The person told Spradling that a senior member of Kline’s staff had revealed that surveillance equipment was set up in the District Attorney’s Office.

Spradling claimed that she scanned her office four times with a device that detects radio frequencies from wireless eavesdropping devices. Three times, she says, the sensor detected a radio frequency signal emitted by wireless eavesdropping devices. “No one should work under those circumstances,” Spradling said. “And there’s no place for that nonsense in the prosecutor’s office.”

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Jury selection for the Andrew Ellmaker case began on a Monday morning. Maxwell, Kline’s chief prosecutor, handled the case. Maxwell’s record in Johnson County was no wins, one felony loss and two hung juries.

Ellmaker was accused of murdering social worker Teri Zenner and dismembering her body with a chain saw. Maxwell added a personal touch to jury selection. “If my wife and I ended up on a jury together, you’d never get a verdict,” Maxwell told the potential jurors, implying that he and his wife couldn’t agree on anything.

Shawnee County court records don’t disagree with Maxwell. The records show that Maxwell has been divorced four times since 1987. An April 1991 divorce record claims that Maxwell “misrepresented that he would be able to have children.”

Maxwell also told the potential jurors that he would say stupid things and ask stupid questions. There was history there, too. The Kansas Supreme Court cited Maxwell, then an assistant attorney general, for prosecutorial misconduct in a 2000 murder case. During closing arguments, Maxwell accused the defendant of lying 11 times, and he continued to call him a liar even after the judge sustained an objection by the defense and directed jurors to ignore the comment. But Maxwell wouldn’t quit. “The state tells you he lied,” he told the jury. The Kansas Supreme Court ruled Maxwell’s conduct improper. “This is the rare case in which the prosecutor’s improper remarks during closing argument were so prejudicial that a new trial is required,” the court said.

In the Ellmaker case, Maxwell scored his first felony conviction in Johnson County. Ellmaker’s mother testified against him, and Ellmaker had Zenner’s blood on him when he was arrested. It was a slam-dunk case, even for someone with Maxwell’s record as a Johnson County prosecutor.

Many of Kline’s replacement prosecutors have been criticized as either inept or unqualified. Some accuse Kline of hiring employees simply for their conservative values and history of supporting Kline’s campaigns. Few of the new hires had experience with criminal prosecution. Assistants were training the new hires how to try cases, according to Fanning, a former juvenile support staff supervisor who resigned in March.

The day after firing Spradling, Kline introduced Sue Carpenter as head of the domestic-violence unit. After Kline hired her, his office falsely claimed in a press release that Carpenter was a managing partner with Tomes & Dvorak, Chartered, of Overland Park. She was only a senior associate. Carpenter had been an assistant district attorney in Shawnee County from 1979 to 1993. In 1991, the Kansas Supreme Court publicly censured her for falsely implying that the defendant in a rape case gave the victim gonorrhea, despite the fact that she knew it wasn’t true.

Kline’s handpicked replacement for Fritz was Shelley Diehl. Diehl had been a special assistant attorney general in the Kansas Insurance Department, and was a prosecutor for Douglas County. Diehl was hired at $79,996.80, but, in just two months, her salary was bumped up to $86,996.79. Since Diehl’s arrival January 9, police reports in the juvenile unit have backlogged. As of February 8, the backlogged cases had ballooned to 225, Fanning tells the . It’s Diehl’s job to make sure that charges are being filed promptly against juveniles. “Somebody’s going to get killed, quite frankly,” Fanning says, “because you can’t just let those police reports lay around there like that.”

The promotions of former Morrison prosecutors Sarah Geolas, Jill Kenney and Patrick Carney to section chiefs have also surprised courthouse watchers. “They wouldn’t have been section chiefs for five years,” says a Johnson County defense attorney familiar with the prosecutor’s office. Geolas replaced Brent Venneman, who led the drug unit for nearly six years and was a 14-year office veteran. Geolas had only six months of experience working in the unit. Critics say Kenney, with five years as a prosecutor, also lacked the experience to be promoted to section chief. Kenney now heads the traffic unit. And Carney, who has also been a licensed attorney for five years, took over the unit that handles economic crime.

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But the most talked-about hires have been Jesse Paine and R.W. Mozingo.

While students at Washburn University, Paine and Mozingo led a student group called the Christian Legal Society. According to Topeka Capital-Journal stories published in late 2004, Paine refused to let a student lead Bible study because the student was a Mormon. Because of that incident, the student government cut funding to his organization. Paine and Mozingo’s group then filed a federal lawsuit in September 2004 against the university. After the lawsuit was filed, the student government reinstated funding with reassurances that Paine and Mozingo’s group would welcome all students. The group dropped the case in April 2005.

Paine’s wife, Crystal, runs a Web site called BiblicalWomanhood.com, which offers advice on how to be a good and obedient Christian wife. Jesse Paine’s entries on the site suggest that he’s a Kline disciple. In June 2001, Paine wrote about what it was like waiting for his future wife: “I had to place Crystal on His altar and give her to Him.” Paine wrote that he and his parents began “seriously praying about Crystal” in the winter of 2000. Finally, his father went to Crystal’s dad and told him that Jesse wanted to court Crystal. “This is a significant step because under our definition of courtship, we are both committed to marriage, and not to a ‘let’s try it and see if this works’ mentality,” Paine wrote.

In May, the Paines were featured in the British documentary Obedient Wives. The BBC’s Web site describes the show: “And 26-year-old mother and wife Crystal believes that a wife’s primary role is to support and assist her husband. She thinks that wives who work are selfish and that a good wife knows when to keep her mouth shut.”

After he was hired by Kline, Paine was assigned to filing charges against those suspected of domestic violence. Paine was told to give priority to cases in which the defendants were in jail; prosecuting such cases first saves the county money that it would otherwise spend housing the inmates. Several sources tell the Pitch that Paine was quickly bounced to the traffic unit with Mozingo.

“The interns that were there [already] were leaps and bounds ahead of these guys,” says Ashford, the former assistant district attorney who left in April. “We get interns every year that come to work for Johnson County, and these people cannot wait to get into court and start duking it out and learning. That’s what you’re used to, and you’re not used to someone who is so very, very timid and fearful.”

On May 25, Kline’s office released a progress report to The Olathe News. The report claimed that Kline’s case filings and dismissals, in terms of numbers, matched those of previous Morrison years. Kline claimed that he released the report, which covered his first 100 days in office, to quiet his critics.

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“I just want to get the truth out there. It’s vitally important to be transparent,” Kline told the paper. “I think you need a little bit more time to let these facts sort themselves out, but this clearly shows that some of the silliness that’s been bandied about isn’t true.”

Not exactly. Kline’s figures looked at the first 100 days of his tenure and compared it to the same time last year. The figures showed that he had filed fewer cases than Morrison — 2,478 to 2,600. His numbers showed a drop in the number of juvenile, criminal and domestic-violence cases filed. Dismissals over the same period have risen from 39 last year to 52.

Statistics aside, what matters is what’s actually happening in Johnson County courtrooms. The Pitch has conducted interviews with 10 current and former employees with the Johnson County District Attorney’s Office.

Several of them have shared details of at least 30 botched cases. The cases show that Kline’s new hires failed to have a basic understanding of rules of evidence, failed to identify defendants during preliminary hearings, and made lenient deals in cases involving violent crimes. Among the questionable cases:

· Kline’s lead prosecutor, Stephen Maxwell, scored a hung jury on March 14 in the second murder trial of David Stagg, a music professor accused of murdering his lover, William Jennings. After the first trial, a jury returned a 9-3 decision in favor of a guilty verdict, leading to a mistrial. A second jury also couldn’t reach a verdict, with three jurors favoring guilt before a second mistrial was declared. A Johnson County judge granted Stagg an acquittal March 29.

· John Lowe was accused on January 6, 2006, of threatening to cut his son to pieces. Lowe represented himself. Prosecutors Dave Davies and Eric Rucker gave him a deal on April 13 that allowed Lowe to plead to two “level C” misdemeanors, the lowest-level criminal charge. Instead of 14 months behind bars, Lowe was released with a sentence of the time he had already served in jail.

· Davies cut a similar deal in a case against Randolph Aiken. A witness claimed that Aiken drove in circles in a front yard on December 15, 2006, chasing a person who was on foot, according to police reports. Aiken was facing about a year in jail on a charge of felony aggravated assault, but Davies reduced the charge to misdemeanor assault. On April 13, Aiken received 30 days in jail and a year’s probation.

· On April 24, Paine lacked evidence at a preliminary hearing to determine whether John Donnelly Furmanski had failed to pay child support. Without evidence that Furmanski hadn’t made his payments, a judge dismissed the charges.

· Rucker showed little knowledge of hearsay evidence during a May 2 hearing for Johnny Earl Belcher, who is accused of kidnapping a man and threatening to kill him. Witnesses are typically not allowed to testify as to what somebody told them. But Rucker asked a detective what Belcher had told him, and Belcher’s attorney objected. Rucker said, “He was the personal hearer of this testimony, your honor.” Rucker could have cited an evidence rule for why the statement should be allowed, but without it, the judge sustained the objection.

· Damion Serrioz was arrested on a felony charge of driving while intoxicated on July 26, 2006. During his arrest, Serrioz was accused of striking Overland Park police officer Laurie Bridges. The police claimed that Serrioz possessed an open container, refused to take a sobriety test and had been driving with a suspended license. Serrioz already had two prior DUI convictions. The records were in the file when Sue Carpenter attended the preliminary hearing on the new DUI charge. Judge John Anderson III dismissed all of the charges on May 3 because Carpenter didn’t realize that the certified copies of the DUI convictions were in the file and never offered them as evidence.

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· Shalom Tolefree was accused of aggravated battery causing great bodily harm to a woman on May 11, 2006. According to sources familiar with the case, Tolefree struck the victim so hard that he broke her jaw in two places, knocked her out and put her in the hospital for a week. It wasn’t Tolefree’s first run-in with the law. Court records show that Tolefree pleaded guilty in November 2002 to felony first-degree assault, felony second-degree assault, misdemeanor third-degree assault and felony resisting arrest. Tolefree’s conviction history allowed a sentence of up to 13 years in prison. Carpenter reduced the charges to attempted aggravated battery. When Tolefree is sentenced on July 13, he’ll likely get about three years.

· On December 24, 2006, Jannise Nathanniel was accused of beating his victim with a belt until it broke, beating her with another belt and throwing a jewelry box at her, according to police reports. Nathanniel was charged with aggravated battery causing great bodily harm. Carpenter cut a plea deal with Nathanniel on May 14 in which he agreed to plead guilty to a lesser battery charge. Instead of facing six years in prison, Nathanniel will serve about a year and a half.

· No one from Kline’s office showed up to a hearing about the possible parole of Michael Peterson, who was convicted in 1984 of first-degree murder for killing a woman in a Christian Science reading room. A member of the District Attorney’s Office often tells the three-member parole board why a prisoner should not be released. The Friday before the hearing, an employee reminded Kline, Rucker and Maxwell that Peterson’s first parole hearing was scheduled for Monday. But no prosecutors from Kline’s office showed up for the hearing. The parole board meets this month to consider releasing Peterson.

· On the night of April 2, Kline’s chief investigator, Tom Williams, tried to serve a subpoena at the Stilwell home of Theodore Herzog. When Williams pulled up, Herzog was cleaning a pistol and a shotgun in his garage. Williams, who is not a certified law-enforcement officer, called sheriff’s deputies to arrest Herzog. According to a transcript, Williams told the 911 dispatcher, “I’d a [sic] shot him if I had a gun.” When deputies found that Herzog had not committed a crime, Maxwell called the Johnson County Sheriff’s Office and demanded that deputies arrest Herzog. The next day, a magistrate judge reviewed Herzog’s arrest. The judge found that Herzog hadn’t committed a crime, and the judge rejected the charge against Herzog. Kline’s office then filed an aggravated assault charge against Herzog. Herzog had been scheduled to testify in a DUI case being prosecuted by Maxwell. Maxwell claimed that he did not know the circumstances behind Herzog’s arrest, even though court records indicate that Maxwell ordered the arrest. Several lawyers say Maxwell’s denials to the court raise ethical questions.

Screw-ups happen in criminal cases, and even competent prosecutors cut deals or dismiss charges when warranted by the evidence. But six months in, several seasoned prosecutors and lawyers say they shouldn’t be happening with this frequency.

Though Kline did not comment for this article, his public information officer, Brian Burgess, defends the work of the office’s prosecutors. “The bottom line on all of these cases is going to be that these attorneys are going to make the best decision that they have, given the evidence and the facts,” Burgess tells the Pitch. “The point is, it’s not your place or my place to second-guess the attorneys that are involved and the police officers and the investigators, the judges and the victims, who are all generally consulted on these things.”

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In the wake of these serious blunders, Kline has taken on what may be his highest-profile case during his tenure as district attorney.

Kline’s office has filed first-degree murder charges against Edwin R. Hall. Kline says Hall abducted and murdered 18-year-old Kelsey Smith, who was snatched from the parking lot of a Target store in Overland Park. Smith’s body was discovered in a wooded area in southern Jackson County, Missouri. Kline’s office has claimed jurisdiction in the case, telling the press that the case belongs to his office because Smith’s kidnapping originated in Johnson County.

Kline also remains in the news for his continued anti-abortion crusade. Last week, an expert hired by Kline when Kline was attorney general challenged abortions conducted by Wichita doctor George Tiller. Morrison blasted Kline’s expert for meddling in a criminal investigation and ordered him not to speak publicly about his opinions on the case.

Kline is attempting to ease tensions between his office and the Johnson County Board of Commissioners. Kline agreed to meet the commissioners at a public retreat at 2 p.m. June 21 in room 250 of the Johnson County Administration Building.

Since he took office in January, Kline has continually said he doesn’t intend to run again. Asked last Thursday during a press conference, Kline said: “I don’t know.” Kline has 17 months left, and already there’s stiff competition in the 2008 race for district attorney. Former Johnson County assistant district attorney Steve Howe announced last week his intention to run for the job. Rick Guinn, Paul Morrison’s longtime assistant district attorney, announced last week that he intends to run for Johnson County district attorney. Guinn held his press conference on the steps of the Johnson County Courthouse. His main complaint against Kline: mishandled criminal cases.

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