Listen to the oral argument: SC98077 MP3 file
D.N. was represented during arguments by Amy Lowe of the public defender’s office in St. Louis; the state was represented by Garrick Aplin of the attorney general’s office in Jefferson City.

D.N. was convicted of sexual abuse and was sentenced to 15 years in prison. He had prior convictions for indecent conduct and sodomy, and there were additional allegations of sexual misconduct for which he was not prosecuted. While in prison, he completed the state’s sex offender treatment program, and his therapist recommended he be transitioned to a community-based treatment program. The state filed a petition for D.N.’s civil commitment to the department of mental health as a sexually violent predator. Following a trial, the jury unanimously found D.N. was a sexually violent predator, and the circuit court committed him to secure confinement in the custody of the department of mental health. D.N. appeals. 

This appeal presents several questions for this Court. One involves whether, to explore any bias of prospective jurors, it was sufficient to tell prospective jurors that D.N.’s victims included children or whether he should have been allowed to disclose his victims’ specific ages. Another question involves whether the circuit court should have allowed D.N. to present his defense expert’s assessment of the risk of his future dangerousness after the expert testified D.N. did not suffer from a mental abnormality as defined by the statute. An additional question involves whether it was sufficient for the jury to find unanimously that D.N. suffered from a mental abnormality or whether the circuit court should have required juror unanimity as to the specific mental abnormality from which D.N. suffered. Other questions involve whether D.N.’s counsel was ineffective for failing to challenge the qualifications of a psychologist who prepared D.N.’s end-of-confinement report and for failing to investigate the jury pool for local bias and timely seek a change of venue. Additional questions involve whether there was juror nondisclosure necessitating a new trial and whether the transcript had omissions that would have prejudiced D.N.’s appeal.

Listen to the oral argument: SC97834 MP3 file
Spire was represented during arguments by Jeremiah W. (Jay) Nixon of Dowd Bennett LLP in St. Louis; the public service commission was represented by Jennifer Heintz of the commission’s office in Jefferson City.

In 2017, gas utility company Spire Missouri Inc. filed tariffs with the public service commission to implement general rate increases for the gas services it provides in its eastern and western service areas of the state. Prior to filing the tariffs, Spire sold its Forest Park service facility, using the proceeds from the sale to lease two new offices in downtown St. Louis and establish a new satellite office. Spire did not seek the commission’s authorization before selling the Forest Park property. In March 2018, the commission issued an amended report and order establishing new rates for Spire’s eastern and western service areas. In its order, the commission found Spire’s shareholders should share 50 percent of the rate case expenses with the remainder of expenses allocated to the ratepayers. It did not find any of the expenses imprudent but, rather, determined requiring the utility to share its ratemaking expenses would incentivize Spire to manage its costs. The commission further determined the rates should be offset by $3.6 million to account for the expense of Spire’s new satellite office. Additionally, the commission fond Spire’s prepaid pension asset is approximately $131.4 million and ordered it to be amortized over an eight-year period. Spire appeals. 

This appeal presents multiple questions for this Court. One involves whether the commission erred in denying Spire half of its requested rate case operating expenses. Related issues involve what discretion the commission has in evaluating whether rate case operating expenses are just and reasonable, whether it is unlawful for the commission to disallow utility expenditures without finding such expenses are imprudent, and whether evidence in the record supports the commission’s denial of Spire’s rate case operating expenses. Another question involves whether reducing the future rates by the amounts received in relocation proceeds from a prior sale constitutes unlawful retroactive ratemaking. A related issue includes whether using the relocation proceeds to reduce Spire’s future rates is inconsistent with the commission’s traditional exclusion of utility assets’ gains and losses from utility rates. Another question involves whether pension costs in several of Spire’s ratemaking cases in the early 1990s were calculated based on the cash method or the accrual method. 

Attorney discipline 

Listen to the oral argument: SC98176 MP3 file
Alan D. Pratzel, the chief disciplinary counsel, represented his office of Jefferson City during arguments; Hernandez, an attorney from Denver, Colorado, represented himself.

In 2014, Josue David Hernandez’s law firm partner filed a civil action in a Colorado federal district court in which 20 plaintiffs sought damages from more than 100 insurance companies for denying claims made under their homeowners’ insurance policies. Hernandez subsequently entered his appearance in the case. After the case was dismissed for failure to state a claim, Hernandez filed a notice of appeal to which he attached a 72-page brief. The Tenth Circuit federal appeals court subsequently ordered Hernandez to show cause why he should not be sanctioned pursuant to the circuit’s disciplinary rules for unreasonably increasing the cost of litigation. In the order, the Tenth Circuit noted Hernandez had been warned by the district court about filing lengthy, redundant, and meandering pleadings and had ignored repeated warnings to keep briefs to a reasonable length. The order also noted his unauthorized filing of the 72-page brief with the notice of appeal and found Hernandez appeared to have done so to circumvent page limitations for appellate briefs. The order further noted additional instances in which Hernandez appeared to argue substantive matters in other motions and pleadings to avoid page limitations. The Tenth Circuit ultimately entered a sanctions order admonishing Hernandez that the manner in which he had handled the appeal was inconsistent with the standards of practice required of attorneys admitted to appear before it. The Colorado bar reciprocally disciplined Hernandez. In 2019, the Missouri chief disciplinary counsel’s office filed an information charging Hernandez with violating Rule 4-3.4 (obligation to follow court rules) by attaching the 72-page document to his notice of appeal in in an effort to circumvent the page limitations for federal appellate briefs. A disciplinary hearing panel conducted a hearing during which it excluded a multitude of exhibits Hernandez attempted to offer into evidence. The panel concluded Hernandez violated Rule 4-3.4 and recommended he be reprimanded. The chief disciplinary counsel accepted the recommendation; Hernandez did not. Hernandez asks this Court to find he cannot be disciplined because, as a matter of law, he cannot be found to have knowingly disobeyed the filing rules of the federal courts. 

This case presents two questions for this Court – whether Hernandez violated rules of professional conduct and, if so, what discipline, if any, is appropriate.

Listen to the oral argument: SC97737 MP3 file
McFadden was represented during arguments by William Swift of the public defender’s office in Columbia; the state was represented by Garrick Aplin of the attorney general’s office in Jefferson City.

Vincent McFadden was found guilty of first-degree murder and sentenced to death for having acted with a codefendant in the shooting death of Todd Franklin. The judgment was reversed on appeal, and he again was convicted. During the retrial’s penalty phase, the state presented evidence, in aggravation of punishment, that he previously had been convicted of first-degree assault and armed criminal action for shooting at two other men; that he had killed his girlfriend’s sister because another sister had told people he had shot at one of the men; and that he had attempted to convince his girlfriend to recant her identification of him as her sister’s murderer. In mitigation of punishment, McFadden presented evidence from certain family members about his difficult upbringing and from a human development expert that McFadden’s attachment disorder and violent childhood neighborhood contributed to his behavior. The jury found five statutory aggravators and recommended McFadden be sentenced to death. The circuit court entered judgment accordingly. This Court affirmed the judgment on direct appeal, and McFadden then sought postconviction relief, which the circuit court denied following an evidentiary hearing. McFadden appeals.

This appeal presents 20 questions for this Court. Most involve whether McFadden’s trial counsel’s actions violated his constitutional rights to effective assistance of counsel, to due process of law, and to be free from cruel and unusual punishment and, if so, whether he was prejudiced as a result or whether counsel’s actions were proper or constituted reasonable trial strategy. Some questions involve McFadden’s codefendant and include whether counsel were ineffective or conceded McFadden’s guilt in calling the codefendant, whose testimony identifying McFadden as the shooter contradicted the defense’s theory that McFadden did not shoot Franklin; in not impeaching the codefendant with a prior statement that he was not present when Franklin was shot; and for failing to object to the state’s introduction into evidence of letters between McFadden and the codefendant referencing gang affiliation. Other questions involve whether counsel were ineffective for failing to object to certain evidence presented by the state, including a witness who identified McFadden as having shot Franklin after seeing McFadden’s photograph in a Pine Lawn police “wanted” poster and an expert who testified a fingerprint found on a cigar wrapper at the crime scene matched McFadden’s fingerprints on file. Additional questions involve whether counsel failed to call certain witnesses in mitigation of punishment, including a criminologist and certain lay witnesses to testify about adverse, hostile and socially disadvantaged cultural conditions in Pine Lawn and surrounding communities in which McFadden grew up; and neuropsychologists or similar experts to present a PET scan or other evidence showing McFadden has neurological limitations resulting in a reduced mental age. Other questions involve whether counsel were ineffective for failing to rebut the state’s evidence about Franklin’s good character and McFadden’s prior assaults and to impeach the girlfriend’s evidence that McFadden had shot her sister. Another question is whether counsel were ineffective for failing to provide a human development expert with the criminologist’s cultural mitigation analysis to help show McFadden’s attachment disorder is linked to Pine Lawn’s cultural conditions. Additional questions involve whether counsel were ineffective for failing to object properly to certain arguments during the penalty phase closing argument as appealing to passion, prejudice, caprice and emotion. Another question involves whether McFadden’s postconviction relief counsel abandoned him by failing to plead, in a timely fashion, that his trial counsel were ineffective for not presenting neuropsychology evidence during the guilty phase of the trial to show his mental age was younger than 18 years, he lacked the mental ability to deliberate or coolly reflect on the murder, and he should not be sentenced to death. Further questions involve whether the circuit court clearly erred in overruling McFadden’s motions to compel his codefendant to answer deposition questions or whether doing so would have violated the codefendant’s constitutional right not to incriminate himself; in sustaining the state’s motion to recall McFadden’s writ to attend his postconviction relief hearing and in refusing to disqualify the prosecutor’s office based on the prosecutor’s allegedly false representations; and in treating memoranda of law relating to McFadden’s claims about the neuropsychologists as untimely amendments to his amended motion for postconviction relief.