POTOSI, Mo. — Brian Parker took the stand and offered a lesson in prosecutorial discretion.
Parker is the prosecuting attorney in Iron County, and he was appearing as a witness for the prosecutor in neighboring Washington County, John Jones.
Parker has some seasoning. Jones, elected last fall, is handling his first high-profile case.
Jones is prosecuting what might someday become known as the “Case of the Century†around these parts — a rural bit of the Ozarks about two hours southwest of ºüÀêÊÓƵ. The area is surrounded by beautiful rolling hills and marked with tiny towns that, for the most part, have seen better days.
In March, Jones filed “criminal street gang†felony charges against Iron County Sheriff Jeff Burkett, two of his deputies and a wealthy rancher, Donald Rickie Gaston. According to the indictment, Gaston directed law enforcement in February to help track his ex-girlfriend and their child in what is basically a custody dispute.
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The men were jailed and held for a while without bond.
Gaston’s preliminary hearing started at about 10 a.m. Wednesday and lasted more than 11 hours, in front of St. Francois County Associate Circuit Court Judge Patrick King. The hearing was at times a struggle for Jones and his witnesses as they faced ºüÀêÊÓƵ defense attorney Scott Rosenblum, who picked apart the evidence.
Parker was there to explain why he wouldn’t take the case the Iron County deputies brought to him, alleging an assault against Gaston by the mother of his child. The Feb. 8 incident led to a chase two days later. Burkett and his deputies, with Gaston tagging along, allegedly called various police dispatchers to obtain “pings†of the woman’s phone so they could track her. The alleged goal was to reunite Gaston with his daughter.
Gaston had a court order that said it was his weekend with the 5-year-old girl, the evidence showed, though some witnesses pointed out the couple had split up just two days earlier.
After Gaston filed a complaint alleging he was assaulted, the deputies sought charges against the woman. Parker refused, saying the details were questionable. He sent the deputies several questions asking for more information and evidence.
This is one of the most basic elements of the criminal justice system that often gets overlooked. There is push-and-pull between police and prosecutors, but prosecutors ultimately decide what charges to bring to make sure they actually have a case they can prove.
Parker didn’t trust the deputies and thought something was strange about how insistent they were on charging the woman. Based on the evidence Parker saw, Gaston appeared to be the aggressor. And based on that evidence, Parker was right to question the charges.
Jones would later file charges against the officers and Gaston for their actions. What he proved beyond a reasonable doubt on Wednesday was that Gaston has a temper problem and there was some shoddy police work in Iron County.
“It was highly irregular to say the least,†he said in his closing argument.
But the key question, one that Rosenblum kept asking, was whether it rose to the level of three felonies against his client — criminal street gang activity, tampering with a witness and stalking.
“The case fails because of this,†Rosenblum told the judge, waving a court order that outlined a parenting plan for the child and didn’t allow the mother to take her out of the county without talking to Gaston. “All the other stuff is nonsense.â€
Rosenblum suggested there was something else going on here, “underlying stuff between these deputies and other officials.â€
The judge tossed the tampering charge, agreeing with Rosenblum that there was not a “scintilla†of evidence for it. He allowed the criminal street gang and stalking charges to go to trial, though he asked Jones if there was any case law on such an unusual charge being applied in a situation like this.
There is not. And that highlights the irony of the case. Jones and his witnesses argued that no police officers would ever enforce a parenting plan court order, despite language in the law that they “shall†do so. And to win his case, Jones will have to convince 12 jurors to apply a law that has never before been applied this way — suggesting that Gaston is a kingpin, the head of a cop mob, so to speak.
Meanwhile, the sheriff and his deputies will have to wait for their days in court, as Gaston’s hearing took up all the time the judge had Wednesday.
No matter what happens, the damage to their careers has been done. Burkett has been removed from office as a condition of his bond. Missouri Attorney General Andrew Bailey is trying to finish the job in a separate court action, though it’s based on the same evidence that didn’t do much to impress a judge.
The cases — all of them — remain on shaky ground. Something happened here, maybe even something criminal. But if Gaston and his pals are Al Capone and a gang of Chicago thugs, the evidence seems, to borrow Rosenblum’s phrase, “something less than a scintilla.â€
Perhaps between now and when the cases go before a jury, one prosecutor’s discretion will rub off on another.