STATE OF MISSOURI,
)
)
Respondent,
)
)
vs.
)
No. WD77931
)
TIMOTHY R. JACOBS
)
)
Appellant.
)
__________________________________________________________________
APPEAL TO THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI
19TH JUDICIAL CIRCUIT, DIVISION 1
THE HONORABLE JON E. BEETEM, JUDGE
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
Margaret M. Johnston, MOBar #45913
Attorney for Appellant
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, Missouri 65203
Telephone (573) 777-9977
FAX (573) 777-9974
maggie.johnston@mspd.mo.gov
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
IN THE
MISSOURI COURT OF APPEALS
WESTERN DISTRICT
__________________________________________________________________
Page
TABLE OF AUTHORITIES .................................................................................. 2
JURISDICTIONAL STATEMENT ....................................................................... 4
STATEMENT OF FACTS ..................................................................................... 5
POINT RELIED ON .............................................................................................. 9
ARGUMENT ........................................................................................................ 11
CONCLUSION .................................................................................................... 23
CERTIFICATE OF COMPLIANCE AND SERVICE ...................................... 24
APPENDIX
1
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
INDEX
Page
CASES:
State v. Lemasters, 2015 WL 778400 at *1
(Mo. banc Feb. 24, 2015) ................................................................ 10, 17-22
State v. Reinschmidt, 984 S.W.2d 189 (Mo. App. S.D. 1998)............. 10, 16, 17
State v. Ross, 829 S.W.2d 948 (Mo. banc 1992) ............................. 10, 15, 16, 20
State v. Smith, 32 S.W.3d 532 (Mo. banc 2000) ............................................... 14
State v. Thurman, 272 S.W.3d 489 (Mo. App. E.D. 2008) .............................. 15
CONSTITUTIONAL PROVISIONS:
U.S. Const., Amend. 6 ................................................................................ 9-11, 21
U.S. Const., Amend. 14 .............................................................................. 9-11, 21
Mo. Const., Art. I, § 10 ............................................................................... 9-11, 21
Mo. Const., Art. I, § 18(a) ........................................................................... 9-11, 21
Mo. Const., Art. V, § 3 ........................................................................................... 4
STATUTES:
§ 217.385 .............................................................................................................. 4, 5
§ 477.070 .................................................................................................................. 4
2
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
TABLE OF AUTHORITIES
RULES:
Rule 30.20 ........................................................................................................ 10, 15
3
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
Page
Appellant Timothy R. Jacobs was convicted by a Cole county jury of
the class B felony of committing violence against an employee of the
Department of Corrections, § 217.385 (LF 17).1 He was sentenced by the
Honorable Jon E. Beetem to five years in prison to run consecutively to his
other sentences. This appeal involves no issues reserved for the exclusive
jurisdiction of the Missouri Supreme Court, so jurisdiction lies in the
Missouri Court of Appeals, Western District. Article V, § 3, Mo. Const. (as
amended 1982); § 477.070.
1
Statutory citations are to Revised Statutes of Missouri, 2000, and rule
references are to Missouri Supreme Court Rules (2014).
4
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
JURISDICTIONAL STATEMENT
Appellant Timothy Jacobs was indicted in Cole County for the class
B felony of committing violence against an employee of the Department of
Corrections (DOC) (LF 17).2 § 217.385, RSMo 2000. The charge alleged that
while he was an inmate, he knocked Michelle Baumann, a DOC employee,
to the ground with his shoulder (LF 17). The case was tried to a jury.
At trial, Michelle Baumann testified that she works at Jefferson City
Correctional Center (Tr. 130). She was working on February 6, 2011, in the
administrative segregation housing unit, which is a unit for offenders who
do not get along well with others (Tr. 133). The protocol for escorting an
administrative segregation offender outside of his cell is to place him in
handcuffs and attach a tether to the handcuffs (Tr. 139).
On the morning of February 6, Ms. Baumann escorted Mr. Jacobs
from the shower back to his cell (Tr. 129, 140). About halfway down the
walkway to his cell, he stopped moving (Tr. 141). She told him to walk
and go back to his cell but he refused (Tr. 141-142). She laid a hand on him
to get him to go along, but he resisted, so she used more force; Mr. Jacobs
responded by using more resistance against her (Tr. 142). Ms. Baumann
attempted to do a “leg sweep” (Tr. 142). She testified that this is done to
2
The record on appeal contains a legal file (LF) and a transcript (Tr.).
5
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
STATEMENT OF FACTS
want them to go” (Tr. 143). Officer Jeremiah Groll was nearby to assist her
(Tr. 143).
Ms. Baumann testified that when she tried to do the leg sweep, Mr.
Jacobs bent down, and shoved his shoulder into her, shoving her to the
ground; she hit the ground, bruising her knee (Tr. 143, 151-152). She got
back up and put Mr. Jacobs against the wall, at which time Officer Groll
arrived and assisted her in putting Mr. Jacobs back in his cell (Tr. 143). She
testified that Mr. Jacobs continued to resist (Tr. 143).
The incident was captured on video that fairly and accurately
depicts what occurred; the video was played for the jury (Tr. 144, 146;
State’s Exhibit 1-A from minute 11:45 to 12:53).
Benjamin Wilson testified that he worked as an investigator for the
Department of Corrections and investigated this incident (Tr. 168, 170). He
interviewed Mr. Jacobs, and the interview was recorded; it was played to
the jury (Tr. 173, 175; State’s Exhibit 1B, minutes 1:58 to 6:12).3 In Mr.
Jacobs’ statement, he stated that he had made several complaints against
Ms. Baumann, so when she came to retrieve him from the shower, he
3
Exhibit 1B contained other interviews, but it was admitted for the limited
purpose of playing Mr. Jacobs’ interview (Tr. 175-176).
6
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
“take him down so somebody else can help you get them to where you
complaints filed against her and was trying to stay away from her (Ex. 1B
at 3:15). As she walked him to his cell, she said he must like men more
than women, and he responded that he did not like having trailer park
trash causing problems (Ex. 1B at 3:30). Ms. Baumann responded that at
least she had a house on the street and that Mr. Jacobs was locked up in a
cell (Ex. 1B at 4:00). Mr. Jacobs said that she was probably struggling to
pay her rent and her bills and that he did not have to do those things (Ex.
1B at 4:10). Mr. Jacobs told Mr. Wilson that Ms. Baumann said to him,
“Your nigger ass better watch your mouth,” and when she said that, Mr.
Jacobs stopped and looked at her and said, “What did you just say? Did
you just call me a nigger?” (Ex. 1B at 4:10). She immediately grabbed his
arm and said, “Go on to your cell,” and shoved him (Ex. 1B at 4:30).
Mr. Jacobs said that because he had just been in the shower, his
shower shoes and feet were soaking wet, and when she shoved him, his
feet slipped and he lost his balance; he had just caught himself when she
stepped behind him and pushed again (Ex. 1B at 4:40). When she pushed
the second time, he went forward, losing his balance, and she flipped over
his shoulder (Ex. 1B at 5:00). Mr. Jacobs said he tried to put his shower
shoes back on, but she grabbed him and she and another guard pushed
7
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
asked her why she continued to have contact with him when he had
door frame of the cell, and somewhere in the process, his elbow was
injured (Ex. 1B at 6:15). Mr. Wilson testified that Mr. Jacobs was seen by
medical staff and did have a soft tissue injury to his elbow (Tr. 183-184).
Mr. Wilson also interviewed another offender housed in the same
unit and other corrections officers who were involved, and he watched the
video recording of the incident (Tr. 179-180).
After deliberation, the jury found Mr. Jacobs guilty (Tr. 249). The
court denied his motions for a new trial and sentenced him to five years’
imprisonment to be served consecutively to his current sentence (Tr. 272,
275). This appeal follows.
8
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
him back toward his cell (Ex. 1B at 5:15). He was pushed up against the
The trial court plainly erred in failing to sua sponte disqualify the Cole
County Prosecuting Attorney’s Office from this case and in denying Mr.
Jacobs’ pro se “motion for judgment of acquittal notwithstanding the
verdict,” because the court’s errors denied Mr. Jacobs his rights to due
process and a fair trial guaranteed by the 6th and 14th Amendments to the
United States Constitution, and Article I §§ 10 and 18(a) of the Missouri
Constitution, in that Mr. Jacobs’ former attorney Maness, who was defense
counsel of record for an entire year, appeared on behalf of the state just three
months before trial after leaving his job with MSPD and joining the Cole
County Prosecuting Attorney’s Office; the trial court failed to properly apply
the “appearance of impropriety” standard to sua sponte disqualify the Cole
County prosecutor’s office when attorney Maness appeared on behalf of the
state in this case after having represented Mr. Jacobs for a full year, and the
court’s overruling Mr. Jacobs’ motion resulted in a manifest injustice or a
miscarriage of justice because he was prejudicially convicted by a
prosecutor’s office that employed his former counsel who provided legal
advice to him about the same case for a year, and that counsel later appeared
on the state’s behalf in the same case.
9
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
POINT RELIED ON
State v. Ross, 829 S.W.2d 948 (Mo. banc 1992);
State v. Reinschmidt, 984 S.W.2d 189 (Mo. App. S.D. 1998);
U.S. Constitution, Amendments 6 & 14;
Mo. Constitution, Article I, §§ 10 & 18(a); and
Rule 30.20.
10
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
State v. Lemasters, 2015 WL 778400 (Mo. banc Feb. 24, 2015);
The trial court plainly erred in failing to sua sponte disqualify the Cole
County Prosecuting Attorney’s Office from this case and in denying Mr.
Jacobs’ pro se “motion for judgment of acquittal notwithstanding the
verdict,” because the court’s errors denied Mr. Jacobs his rights to due
process and a fair trial guaranteed by the 6th and 14th Amendments to the
United States Constitution, and Article I §§ 10 and 18(a) of the Missouri
Constitution, in that Mr. Jacobs’ former attorney Maness, who was defense
counsel of record for an entire year, appeared on behalf of the state just three
months before trial after leaving his job with MSPD and joining the Cole
County Prosecuting Attorney’s Office; the trial court failed to properly apply
the “appearance of impropriety” standard to sua sponte disqualify the Cole
County prosecutor’s office when attorney Maness appeared on behalf of the
state in this case after having represented Mr. Jacobs for a full year, and the
court’s overruling Mr. Jacobs’ motion resulted in a manifest injustice or a
miscarriage of justice because he was prejudicially convicted by a
prosecutor’s office that employed his former counsel who provided legal
advice to him about the same case for a year, and that counsel later appeared
on the state’s behalf in the same case.
11
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
ARGUMENT
Appellant Timothy Jacobs was indicted in September of 2011 and
was represented by the Missouri State Public Defender (MSPD); attorney
King entered his appearance in November (LF 1-2). Attorney Maness filed
his first motion on Mr. Jacobs’ behalf in June of 2012 and thereafter
appeared with him for all court hearings for the next year (LF 4). Counsel
Maness appeared on Mr. Jacobs’ behalf on the following dates: August 15,
2012; November 6, 2012; February 4, 2013; April 2, 2013; April 22, 2013;
June 11, 2013; and June 25, 2013 (LF 4-8). During that year, Mr. Jacobs’
case was set for jury trial on June 17, 2013, July 8, 2013, and September 3,
2013 (LF 7-8). At a pretrial conference on August 26, 2013, Mr. Jacobs
appeared once again with attorney King; he made no further appearances
with Mr. Maness (LF 9). There was no motion to withdraw ever filed by
Mr. Maness. The next time Mr. Maness’s name appeared on the docket
sheet was on March 11, 2014, with the following entry, “State appears by
Assistant Prosecuting Attorney Maness.” (LF 10).4 Three months later, the
case went to trial (LF 13). No motion was ever made to disqualify the Cole
County Prosecuting Attorney’s Office (CCPAO).
4
According to the court reporter, this hearing was not on the record.
12
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
Facts
relief based on Mr. Maness’s former representation of Mr. Jacobs (LF 6972). However, in a timely-filed pro se “motion for judgment of acquittal
notwithstanding the verdict,” Mr. Jacobs claimed as error the trial court’s
allowing the CCPAO to proceed with prosecuting this case despite a
conflict of interest created by Mr. Maness’s employment with the CCPAO
after representing Mr. Jacobs for “over one year” (LF 13-14; 73-78,
paragraph 2). In his motion, Mr. Jacobs alleged that during his
representation of Jacobs, Maness “acquired knowledge about the case from
me, the defendant, while acting as my appointed counsel” (LF 74). He
alleged that the CCPAO’s continued involvement in his case created “an
appearance of impropriety” (LF 74).
At sentencing, Mr. Jacobs told the court that when Mr. Maness
transferred off his case, he inquired why Mr. Maness was no longer his
attorney, but he “was told by the Public Defender’s Office that that was
information that cannot be disclosed to me of his whereabouts of his new
job” (Tr. 258). When he learned that Mr. Maness had joined the CCPAO,
he asked his new trial counsel to bring to the court’s attention that the
CCPAO should be disqualified from prosecuting the case, but counsel
refused to do so (Tr. 258-259). Mr. Jacobs told the court that Mr. Maness
13
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
In his motion for a new trial, Mr. Jacobs’ attorney did not request
receiving a fair trial once he transferred to the CCPAO, and that allowing
the CCPAO to continue prosecuting the case created an appearance of
impropriety (Tr. 260-261).
The court stated it did not believe the entire CCPAO had to be
disqualified from the case “if the State tells me that they Chinese walled off
Mr. Maness” (Tr. 266). The prosecuting attorney stated, “I will represent
to the court that Mr. Maness had no involvement in the prosecution of this
case and any time that Mr. Jacobs’ name was even mentioned in passing,
he excused himself from the meeting or walked away saying I have a
conflict and I can’t be part of any discussions.” (Tr. 267). The judge
decided to continue sentencing for two weeks to read the relevant cases
cited by both parties (Tr. 270). However, after Mr. Jacobs requested to be
returned to the Department of Corrections until the next sentencing date,
the court decided to deny Mr. Jacobs’ motion and sentence Mr. Jacobs that
day (Tr. 270-272).
Standard of Review
Normally, the decision whether to disqualify a prosecuting attorney
is committed to the trial court’s discretion. State v. Smith, 32 S.W.3d 532,
543 (Mo. banc 2000). Here, however, no motion to disqualify the CCPAO
14
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
had knowledge and information about his case that kept him from
Plain error review requires a two-step analysis to determine: 1) whether
the asserted claim of plain error facially establishes substantial grounds for
believing a manifest injustice or miscarriage of justice has occurred; and 2)
if facially substantial grounds exist, whether manifest injustice or a
miscarriage of justice has actually occurred. State v. Thurman, 272 S.W.3d
489, 496 (Mo. App. E.D. 2008).
Discussion
In State v. Ross, 829 S.W.2d 948, 949 (Mo. banc 1992), part-time Clay
County Assistant Prosecutor Klopfenstein filed a complaint against Ross
charging him with assault. Klopfenstein also worked for the law firm of
Von Erdmannsdorff and Zimmerman. Id. at 949. A civil action for
damages arising out of the assault was filed against Ross, who was
represented by Stephen Mowry of the Von Erdmannsdorff and
Zimmerman firm. Id. at 949. Mowry obtained a confidential statement
from Ross, took depositions, and talked with Ross on the phone. Id. at 949.
Ross also met with other members of the Von Erdmannsdorff and
Zimmerman firm, but never with Klopfenstein. Id. at 949. Ross
considered Mowry to be his attorney representing him on the civil action.
Id. at 949. Mowry also was a part-time Clay County Assistant Prosecutor.
15
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
was ever made, so Mr. Jacobs must ask for plain error review. Rule 30.20.
Zimmerman firm that Klopfenstein and Mowry were also Clay County
prosecutors. Id. at 949. At trial, the state was represented by Assistant
Prosecutor Newberry. Id. at 949.
This Court in Ross noted that there was no evidence that anything
relating to Ross’ case was shared between the members of the law firm and
members of the prosecuting attorney’s office. Ross, 829 S.W.2d at 949.
Klopfenstein did no work on the civil case, and his only involvement in the
criminal case was filing the complaint. Id. at 949-50. Mowry had no
involvement with the criminal case. Id. at 949-50.
The Ross Court recognized that in evaluating when a prosecutor’s
office should be disqualified from a case, the standard to be applied is “the
appearance of impropriety.” Ross, 829 S.W.2d at 951. The Court went on
to note that the interconnections between the prosecutor’s office and the
law firm representing Ross on the civil action created an appearance of
impropriety that required the Clay County Prosecutor’s Office to be
disqualified. Id. at 951. The Court further noted that no showing of actual
prejudice to the defendant was required. Id. at 952.
The Southern District in State v. Reinschmidt, 984 S.W.2d 189 (Mo.
App. S.D. 1998), applied Ross to find that an entire prosecutor’s office was
16
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
Id. at 949. Ross was never informed by the Von Erdmannsdorff and
represented by Assistant Public Defender Bock on Greene County charges;
she then joined the Greene County Prosecutor’s Office. Id. at 190-91. The
Southern District applied the Ross “appearance of impropriety” standard
to disqualify the Greene County Prosecutor’s office. Id. at 192. The
Reinschmidt Court noted that Bock had the “opportunity to gain
confidential information about his case which had the potential to aid the
prosecution.” Id. at 192. The Southern District rejected the notion that the
Greene County Prosecutor’s Office did not need to be disqualified because
Bock submitted a sworn affidavit that she did not disclose any confidential
information. Id. at 192.
In a more recent case, Andrew Lemasters was represented by
attorney Cheney of MSPD in his Newton County prosecution. State v.
Lemasters, 2015 WL 778400 at *1 (Mo. banc Feb. 24, 2015). Cheney
represented Lemasters for one month before leaving MSPD and joining the
Newton County Prosecuting Attorney’s Office (NCPAO). Id. at *1-2. She
had met with him for one fifteen-minute interview and appeared once on
his behalf to argue her motion for a bond reduction. Id. at *1. Five months
after Cheney’s job change, Lemasters filed a motion to disqualify the entire
NCPAO. Id. at *2. A hearing was held on the motion, and Cheney
17
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
required to be disqualified. In Reinschmidt, the defendant was
she previously represented, nor did she discuss those cases with other
prosecutors. Id. Lemasters’ motion was denied. Id.
On appeal, Lemasters argued that the disqualification of the entire
prosecutor’s office was required if not doing so created an appearance of
impropriety and cast doubt on the fairness of the trial. Id. at *4. The
Missouri Supreme Court noted:
Society’s confidence in the judicial system – and, in particular
the criminal justice system – depends on society’s perception that
the system is fair and its results are worthy of reliance. But that
alone is not sufficient. Instead, justice must satisfy the appearance of
justice. A procedure that appears to be unfair can jeopardize
society’s confidence in the judicial system as a whole even if the
procedure is – in fact – fair. Accordingly, this Court must pursue
fairness both in the law’s substance and in its appearance.
Id. at *5 (citations omitted; emphasis in original). The Court stated that a
“prosecutor’s office must be disqualified if a reasonable person with
knowledge of the facts would find an appearance of impropriety and
doubt the fairness of the trial.” Id.
18
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
testified that she did not participate in the prosecution of any individuals
appearance of impropriety if known to a reasonable person, and found
there were facts that precluded an appearance of impropriety that might
have otherwise cast doubt on the fairness of Lemasters’ trial. Id. at *6-7.
There was undisputed evidence that the NCPAO screened Cheney
completely from Lemasters’ case, and she did not participate in or assist
with the state’s case against Lemasters in any way.
By contrast, Mr. Jacobs’ former attorney, Mr. Maness, represented
him for at least a year, appearing with him at seven court appearances and
working on his case long enough that it was set three times for trial (LF 48). Then, after leaving the MSPD and beginning work for the CCPAO, Mr.
Maness appeared on behalf of the state on Mr. Jacobs’ case (LF 10). And
where a hearing was held in the court below in Lemasters for evidence on
Ms. Cheney’s involvement with Lemasters’ case after her job switch, no
such evidence was presented here from which the trial court could
determine: 1) whether there were facts that – if known to a reasonable
person – would create an appearance of impropriety and cast doubt on the
fairness of the trial; or 2) whether there were facts that – if known to a
reasonable person – would have dispelled the appearance of impropriety
19
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
Ultimately, the Court found no facts that would create an
Ross, 829 S.W.2d 948 (Mo. banc 1992).
In Lemasters’ case, it was “undisputed that the NCPAO followed
the prudent course and screened Cheney completely from Lemasters’
prosecution.” Lemasters, 2015 WL 778400 at *6. Here, the only “evidence”
presented on this issue was when the prosecuting attorney stated, “I will
represent to the court that Mr. Maness had no involvement in the
prosecution of this case and any time that Mr. Jacobs’ name was even
mentioned in passing, he excused himself from the meeting or walked
away saying I have a conflict and I can’t be part of any discussions.” (Tr.
267). Yet the docket sheet itself contradicts the prosecutor’s statement; Mr.
Maness appeared on behalf of the state in this very case just three months
before trial (LF 10). Having defense counsel appear for the state does not
create the “perception that the system is fair and its results are worthy of
reliance.” Id. at *5.
Mr. Jacobs requested that trial counsel bring his objection to the trial
court’s attention, but trial counsel would not do so (Tr. 258-259). In order
to bring this issue to the attention of the court, Mr. Jacobs filed his own
“motion for judgment of acquittal” and argued that the circumstances of
his case created the appearance of impropriety (LF 73-78). The trial court
20
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
and restored confidence in the fairness of the trial. Id. at *6, citing State v.
Mr. Maness first appeared on behalf of the state in a case where he had,
just months earlier, represented the defendant on the very same case. And
the court should have at least held a hearing once Mr. Jacobs filed his
motion alleging a violation of his rights to due process and a fair trial and
bringing this issue to the trial court’s attention (LF 75).5
Mr. Jacobs suffered a manifest injustice or a miscarriage of justice
when Mr. Maness appeared on the state’s behalf after representing Mr.
Jacobs on the same case just months earlier. Mr. Jacobs was prejudiced by
these circumstances because during Mr. Maness’s representation of Jacobs,
Maness acquired knowledge about the case from Jacobs while acting as his
appointed counsel, and the CCPAO’s continued involvement in his case
created an appearance of impropriety (LF 74). A procedure this unfair can
jeopardize society’s confidence in the judicial system as a whole, and this
Court must pursue fairness both in the law’s substance and in its
appearance. Lemasters, 2015 WL 778400 at *5.
The Court should reverse Mr. Jacobs’ conviction and direct the trial
court to appoint a special prosecutor for retrial. In the alternative, this
Court should remand Mr. Jacobs’ case for a hearing for evidence from
5
U.S. Const., Amends. 6 and 14; Mo. Const., Art. I, §§ 10 and 18(a).
21
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
should have, sua sponte, ordered the disqualification of the CCPAO when
to a reasonable person, would create an appearance of impropriety and
cast doubt on the fairness of the trial, or whether there are no such facts
and a reasonable person would not perceive an appearance of impropriety
such that confidence in the fairness of Mr. Jacobs’ trial is restored.
Lemasters, 2015 WL 778400 at 6.
22
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
which the trial court can determine whether there are facts that, if known
For the reasons argued herein, Mr. Jacobs requests that this Court
reverse his conviction and remand his case for a new trial after the
appointment of a special prosecutor. In the alternative, he requests a
remand for a hearing for the finding of facts, or the absence of facts, that
would create an appearance of impropriety to a reasonable person and cast
doubt on the fairness of the trial.
Respectfully submitted,
/s/ Margaret M. Johnston
_________________________________
Margaret M. Johnston, MOBar #45913
Attorney for Appellant
Office of State Public Defender
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, MO 65203
(573) 777-9977
FAX (573) 777-9974
maggie.johnston@mspd.mo.gov
23
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
CONCLUSION
I, Margaret M. Johnston, hereby certify to the following. The
attached brief complies with the limitations contained in Rule 84.06(b) and
Special Rule XLI. The brief was completed using Microsoft Word, Office
2007, in Book Antiqua size 13 point font, which is no smaller than Times
New Roman size 13 point font. Excluding the cover page, the signature
block, this certificate of compliance and service, and appendix, the brief
contains 3,968 words, which does not exceed the 15,500 words allowed for
an appellant’s brief.
On this 21st day of April, 2015, electronic copies of Appellant’s Brief
and Appellant’s Brief Appendix were placed for delivery through the
Missouri e-Filing System to Shaun Mackelprang, Assistant Attorney
General, at Shaun.Mackelprang@ago.mo.gov.
/s/ Margaret M. Johnston
_________________________________
Margaret M. Johnston
24
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - April 21, 2015 - 10:38 AM
CERTIFICATE OF COMPLIANCE AND SERVICE