Mid-Missouri prosecutor tries getting his own charges tossed

A mid-Missouri prosecutor says police improperly recorded a phone call between him and his attorney, and the Missouri Attorney General’s office failed to disclose it.

According to a new court filing from the attorney for Moniteau County prosecutor Shayne Healea, all five of his criminal charges should be dropped for the alleged Sixth Amendment violation. Shane Farrow, the Jefferson City-based attorney, said Columbia police officers “observed” Healea talking to his attorney, despite Healea asking for privacy to speak after his arrest.

Police arrested Healea, the elected prosecutor for Moniteau County, in October 2014 outside Addison’s Restaurant in downtown Columbia. Healea backed his truck into the glass block window in the alley behind Addison’s, injuring four people inside. Someone stopped Healea as he drove away near the Tiger Hotel to tell him he hit the window, and Healea returned to the scene. Police suspect he drove drunk, allowing for the assault charges to be filed.

Farrow said Healea objected to an officer listening to his phone call to an attorney on scene, and “allowed [Healea] to speak to counsel in a holding cell, in which the officer had the ability to electronically observe the defendant visually and audibly and recorded the entire conversation.” CPD made a copy of this conversation and gave it to the Attorney General’s Office, who is handling the prosecution after Boone County prosecutor Dan Knight recused himself. Farrow said officers then executed search warrants for Healea’s cellphone and Facebook records at Assistant Attorney General Julie Tolle’s request.

“This most egregious invasion allowed police and the Attorney General the opportunity and ability to decide not only whether or not to pursue charges, but whether or not to pursue evidence through search warrants, what charges to file, the degree of charges to file, how to prepare witnesses for grand jury testimony, for suppression hearing testimony, for deposition testimony and trial testimony,” Farrow wrote.

Attorney General spokeswoman Nanci Gonder did not return an after-hours request for comment Thursday. Farrow did not respond to ABC 17 News’ call Thursday afternoon.

Jennifer Bukowsky, a Columbia-based criminal defense attorney, said Tolle’s omission to the court of the taped call’s existence was “shocking.” When a client calls from CPD, Bukowsky said she assumes the call is recorded. However, if Healea specifically asked for a private call with his attorney, it should not have been taped.

“I can see how police wouldn’t know the protocol and inadvertently record the conversation they probably shouldn’t have,” Bukowsky told ABC 17 News. “But they did the right thing, and they gave it over to the attorney representing the state. And that’s where things, apparently and allegedly, went awry.”

The case was transferred to Shelby County in early 2015, and was just three weeks from a trial. Both sides argued over the recorded phone call in July 2016, Farrow said, where Tolle “at that time assured the Court no such violation occurred and that she had verified no violation occurred through the arresting officer and Chief of Police.” While no precedent exists in Missouri regarding an alleged violation of attorney-client privilege, Farrow cited two cases in Connecticut and Nebraska that led to dismissal of charges upon proving a prosecutor used “privileged” conversations for the case.

Senior Judge Hadley Grimm will serve as “special master of the court” to hear arguments on Farrow’s motion. A date has not been set for that.