Case Summary for October 15, 2014

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Case Summary for October 15, 2014

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Wednesday, October 15, 2014
____________________________________________________________________________________________________

SC93882
State of Missouri v. Jesse Driskill
Laclede County
Competency to stand trial in death penalty case
Listen to the oral argument:

SC93882.mp3
Driskill was represented during arguments by Rosemary E. Percival of the public defender's office in Kansas City; the state was represented during arguments by Shaun J. Mackelprang of the attorney general's office in Jefferson City.

A jury convicted Jesse Driskill of two counts of first-degree murder, one count of first-degree burglary, one count of forcible rape, one count of forcible sodomy and five counts of armed criminal action for the July 2010 attack on a couple in their Laclede County home. Before trial, defense counsel requested that Driskill be allowed to watch the trial through closed circuit television due to a history of panic attacks in the courtroom due to his diagnosis of anxiety disorder and intermittent explosive disorder. A doctor found Driskill competent to stand trial and noted that, if Driskill had a panic attack, he should be excused and be allowed time to recover so he could aid in his defense and remain competent to stand trial. The department of corrections did not provide Driskill with any anti-anxiety medication before or during trial. Defense counsel sought a competency hearing, but the trial court denied the request, noting that it had the results of two prior competency examinations of Driskill and that it was not feasible to conduct a competency examination of Driskill in the courtroom during trial. But the court did grant breaks requested by defense counsel; it also, upon request, allowed Driskill to watch the proceedings by videoconferencing and to communicate with his attorneys by telephone and text message. Throughout the guilt phase of the trial, Driskill was either in the courtroom or watching through videoconferencing. He was not present in person or by videoconferencing during portions of the penalty phase. Defense counsel chose not to have Driskill testify in his defense during either phase of trial due to fear of a panic attack. During penalty phase deliberations, the jury asked to see certain exhibits. When the prosecution and defense were unable to agree as to which exhibits the jury should be permitted to see, the court denied the jury’s request to see any exhibits. The jury recommended death sentences for the murder convictions, finding eight statutory aggravating factors existed. The court sentenced Driskill to death for each of the murder convictions and to consecutive prison sentences of 15 years for the burglary conviction and life for the remaining seven convictions. Driskill appeals.

Driskill argues the trial court erred in trying his case, accepting the jury’s guilty verdict and sentencing him. He contends that he was incompetent to stand trial and that the trial court violated his constitutional rights to due process when it denied his motions for a competency evaluation, hearing or continuance. He asserts he suffered from anxiety and panic attacks during trial that rendered him unable to consult with counsel and to assist in his defense. Driskill argues the trial court violated his constitutional rights to due process, to a fair trial, to confront witnesses against him, and to a fair and reliable sentencing trial when it allowed crucial phases of the trial to proceed without Driskill’s presence in the courtroom. He argues he could not waive his right to be present and was not able to be present due to the panic attacks he suffered without his necessary medication. Driskill contends that he had a right to testify at the guilt and penalty phases of the trial and that he could not and did not waive that right voluntarily. He asserts that he told the court he wanted to testify but his untreated mental illness prevented him from doing so without suffering panic attacks. Driskill argues that denial of his medication caused him to be unable to participate in his trial and assist counsel. He contends the jury should have been permitted to see all of the exhibits offered into evidence, especially the documents from past psychiatrists who had evaluated him. He asserts that denying the jury the opportunity to see the exhibits during deliberations violated his constitutional rights to due process, confrontation, presentation of a defense and rebuttal of the state’s evidence, and a fair and reliable sentencing trial. Driskill further argues the trial court erred in admitting excessive victim impact evidence that overwhelmed the jury with emotion and improperly encouraged it to weight the value of his life against the value of the victims’ lives.

The state responds the trial court correctly found that Driskill was competent to stand trial and for sentencing. It argues that there was substantial evidence of Driskill’s competence and that he failed to prove he was not competent to stand trial. The state contends that an expert had concluded Driskill was competent and that the court’s own observations confirmed that Driskill understood the proceedings and was able to assist his attorneys at all critical stages of trial. It asserts that the trial court took adequate steps to ensure Driskill was competent throughout the trial and that there was no new evidence or incident that required the court to order an additional competency evaluation. The state responds that Driskill’s right to be present during trial was not violated by his absence for periods of the trial. It argues that Driskill validly waived his right to be present in the courtroom, participating by videoconferencing instead or asking to be excused. It contends the trial court did not err, plainly or otherwise, in granting Driskill’s requests to be absent temporarily during parts of the trial. The state responds that the trial court did not deny Driskill of his right to testify at trial. It asserts the court gave him several opportunities in both the guilt and penalty phases of trial to exercise his right to testify, but he validly waived that right after consulting with counsel. The state argues the trial court correctly overruled Driskill’s requests for continuance to seek a hearing as to his competency. The state contends that he was not entitled to a continuance. It asserts that the expert’s finding Driskill was competent to proceed did not predicate competency on Driskill being medicated and that Driskill was not forced to stand trial while mentally or physically absent from trial. The state responds that the trial court did not abuse its discretion in deciding not to let the jury see the exhibits during the penalty phase deliberations. The mere fact that the jury was not permitted to view certain exhibits during deliberations, the state argues, did not deprive Driskill of his right to present a mitigation defense. The state contends the trial court properly admitted victim impact evidence, which it asserts was not so unduly prejudicial that it rendered the trial fundamentally unfair.

SC93882_Driskill_brief.pdf

SC93882_State_brief.pdf

SC93882_Driskill_reply_brief.PDF

SC93964
In re: David Ben Mandelbaum
Jackson County
Attorney discipline
Listen to the oral argument:

SC93964.mp3
The chief disciplinary counsel was represented during arguments by Kevin J. Odrowski of the Law Office of Kevin J. Odrowski in Kansas City; Mandelbaum was represented during arguments by J.D. Williamson Jr., an attorney in Lee's Summit.

Kansas City attorney David Mandelbaum was admonished twice in 2000 and reprimanded in 2008 for violating rules of professional conduct. In June 2012, the chief disciplinary counsel received notice that Mandelbaum’s trust account was overdrawn. An investigation revealed the bank closed Mandelbaum’s trust account in July 2012, which Mandelbaum says he believes occurred because the Internal Revenue Service had levied his personal operating account. At the time, he was negotiating with both federal and state tax authorities regarding about $128,000 in tax debt. Mandelbaum entered into a joint stipulation with the chief disciplinary counsel in which Mandelbaum admits he violated certain rules of professional conduct. Mandelbaum admits he left attorney fees he earned in his trust account because he was afraid they would be seized if he moved them to his operating account. He also concedes that he advanced money to clients from his personal funds in the trust account to cover their living expenses and to pay a municipal fine. Mandelbaum further admits he borrowed money for personal expenses from a client’s funds held in his trust account with her permission. The chief disciplinary counsel asks this Court to discipline Mandelbaum’s law license.

The disciplinary counsel and Mandelbaum agree Mandelbaum violated Rule 4-1.15(c) by leaving his attorney fees in his trust account and commingling that money with client money. They contend Mandelbaum violated Rule 4-1.8(e) by advancing funds to clients. The disciplinary counsel and Mandelbaum assert Mandelbaum violated Rule 4-1.8(a) by borrowing money from a client and Rule 4-1.15(d) by failing to keep proper trust account records of the transaction. They ask this Court to suspend Mandelbaum’s license with no leave to apply for reinstatement for at least one year; to stay the suspension; and to place Mandelbaum on probation for two years.

SC93964_Chief_Disciplinary_Counsel_brief.pdf

SC93964_Mandelbaum_brief.pdf

SC94158
In re: Lisa D. Krempasky
St. Louis city
Attorney discipline
Listen to the oral argument:

SC94158.mp3
The chief disciplinary counsel was represented during arguments by Sam S. Phillips of the chief disciplinary counsel's office in Jefferson City; Krempasky, of St. Louis, represented herself.

In 2004, St. Louis attorney Lisa Krempasky began representing Doug Hartmann. In the course of buying, renovating, and leasing or selling houses in St. Louis, Hartmann took out short-term loans from individuals, telling them they would receive a 20-percent return on their investment. Hartmann gave Krempasky power of attorney and broad authority to sign documents on his behalf, to deposit and sign checks, and to transfer funds among various entities. In return, Hartmann paid Krempasky a fee equal to 1 percent of all outstanding balances among the loans she facilitated. Entities investing in loans to Hartmann included three trusts for which Krempasky served as trustee – an individual trust and two charitable trusts. She also encouraged individual investors to invest in Hartmann’s projects through her. She did not tell these prospective investors that she represented Hartmann or was paid a percentage of the funds invested, nor did she seek or receive from them waivers of the conflicts of interest. In addition, some of Krempasky’s employees notarized signatures without witnessing the signatures or the signers being present to verify the signatures. Ultimately, Hartmann depleted the investment funds without making the intended renovations. Several lenders lost their entire investment; Krempasky and several of her family members lost money, and the individual trust for which Krempasky was trustee lost many of its assets. Hartmann was indicted for bank and mail fraud in a real estate scheme, was convicted in 2009, and was sentenced to two years in federal prison. Krempasky entered into a consent decree with the state’s commissioner of securities in which she agreed, in part, to a suspension of her law license for at least three years and to pay $5,000 in restitution. The secretary of state took no further action; the state did not pursue criminal charges against her. She began winding down her law practice in 2007 and has been suspended from practicing since March 2013 for failing to comply with continuing legal education requirements. The chief disciplinary counsel seeks further discipline of Krempasky’s license.

The chief disciplinary counsel and Krempasky stipulate that this Court should discipline her license to practice law. They agree that Krempasky violated Rule 4-1.1 regarding competence by serving as attorney and trustee of a trust and dissipating the trust’s assets. They stipulate that she violated Rule 4-1.7 regarding conflicts of interest by representing different clients with different interests in real estate transactions without proper disclosure or obtaining conflict waivers. They agree that she violated Rule 4-1.8(a) by entering into business transactions with clients without disclosing the nature of the transaction in writing or giving the clients the opportunity to seek independent counsel. They stipulate that she violated Rule 4-1.15 regarding the safekeeping of client property by failing to protect trust assets while serving in a fiduciary capacity as attorney and trustee. They agree that Krempasky violated Rule 4-1.16(d) by failing to return all client property following termination of her representation. They assert that she violated Rule 4-8.4(c) by engaging in misrepresentation by failing to advise her clients of conflict or the fee she was generating from client investments. Finally, the disciplinary counsel and Krempasky agree she violated Rule 4-8.4(d) by engaging in conduct against the administration of justice by allowing her employees to notarize documents without witnessing the signings.

The chief disciplinary counsel argues a suspension is the appropriate disciplinary sanction. He contends the parties are bound by admitted facts and violations and the stipulated sanction recommendation but notes the Court is not bound by the parties’ stipulation and has a sufficient record from which to determine the facts, violations and sanctions. The disciplinary counsel argues a suspension is supported by American Bar Association standards and this Court’s previous decisions. He contends that an extended suspension is appropriate and that a disciplinary hearing panel recommended suspension. The chief disciplinary counsel asserts that Krempasky should have no leave to apply for reinstatement for at least three years.

Krempasky responds that, although she stipulated to a suspension of at least three years, the appropriate discipline should be a reprimand or a suspension of no more than one year. She argues that, should this Court issue a suspension with no leave to apply for reinstatement for at least three years, it should make the new suspension’s effective date retroactive to March 1, 2013, when her prior suspension took effect.

SC94158_Chief_Disciplinary_Counsel_brief.pdf

SC94158_Krempasky_brief.pdf

SC94158_Chief_Disciplinary_Counsel_reply_brief.pdf

SC94235
In re: David R. Swimmer
St. Louis
Attorney discipline
Listen to the oral argument:

SC94235.mp3
Chief Disciplinary Counsel Alan D. Pratzel of Jefferson City represented his office; Swimmer was represented during arguments by Michael P. Downey of Armstrong Teasdale LLP in St. Louis.

The chief disciplinary counsel’s office received a complaint that St. Louis County attorney David Swimmer had violated rules of professional conduct related to his representation of a former client in an employment discrimination matter. It subsequently received notice from a bank that the trust account in which Swimmer kept client funds was overdrawn. Following a hearing, a disciplinary hearing panel issued its decision finding that Swimmer had violated rules of professional discipline with regard to both the trust account and the client representation. It noted Swimmer had received prior letters of admonition – including for issues related to his client trust account – and had been suspended once, with the suspension stayed and Swimmer being placed on probation. The hearing panel recommended that Swimmer be suspended from practicing law with no leave to apply for reinstatement for at least 18 months, noting that although it believed the client representation issues warranted only a reprimand, it believed the issues with the trust account were “more egregious” and warranted the more stringent discipline. The chief disciplinary counsel now asks this Court to discipline Swimmer’s law license.

The chief disciplinary counsel argues that this Court should suspend Swimmer’s law license with no leave to apply for reinstatement for at least 18 months. The disciplinary counsel contends that Swimmer misused his client trust account in violation of Rule 4-1.15(c) and (e) regarding safekeeping of client property as well as Rule 4-8.4(c) regarding misconduct involving dishonesty, fraud, deceit or misrepresentation. The disciplinary counsel also asserts that Swimmer mishandled the legal representation of his client in her employment discrimination matter, prejudicing the client. The disciplinary counsel argues Swimmer violated Rule 4-1.4 by failing to communicate with his client sufficiently that she could make an informed decision about pursuing a claim should the client believe her employer retaliated against her for filing a discrimination complaint. The disciplinary counsel argues Swimmer violated Rule 4-1.16 by failing to take reasonable steps, when his representation of the client ended, to protect her legal interests by telling her she needed to amend her original discrimination complaint or file a new complaint regarding the alleged retaliation by her employer. The disciplinary counsel contends Swimmer violated Rule 4-1.5 by charging his client fees higher than what he could justify for the services he provided. The disciplinary counsel asserts Swimmer’s failure to advise his client adequately about his involvement as her attorney and about the status of her legal action resulted in prejudice to his client and violated Rule 4-8.4 (a) and (d) relating to conduct prejudicial to the administration of justice. The chief disciplinary counsel argues that a suspension is the appropriate discipline under the system of progressive discipline. The disciplinary counsel contends Swimmer’s prior disciplinary offenses, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law are aggravating factors that weigh in favor of suspension with no leave to apply for reinstatement for at least 18 months.

Swimmer responds that his law license should be disciplined only for his admitted violations of Rule 4-1.15 regarding his client trust account. He argues he never misused client funds but concedes that he occasionally deposited checks consisting of fees earned for past legal services into his client trust account rather than his operating account; that he used those funds in the trust account to pay operational expenses rather than moving them out of the trust account and into the operating account as soon as they were earned; and that he twice deposited personal funds into his trust account. Swimmer contends he satisfied all his ethical obligations that he owed to his former client. He asserts that he represented her competently in two prior representations and that the third representation – involving the litigation over her employment discrimination claims – never was effectuated, so she was not his client at that point, and he should not be disciplined for any issues that arose during this time. Swimmer argues the appropriate discipline is either a reprimand or a stayed suspension with probation. He contends both disciplinary options are consistent with this Court’s prior rulings and are adequate to protect the public and the integrity of the bar. He asserts he has taken steps to mitigate the problems related to his client trust account, has cooperated with the investigator, and never had a selfish or dishonest motive regarding the account. He argues he is eligible for probation under Rule 5.225.

SC94235_Chief_Disciplinary_Counsel_brief.pdf

SC94235_Swimmer_brief.pdf