Public Confidence Threatened

Editor:

I write to you regarding a matter which threatens the administration of justice and public confidence in the Missouri court system. I refer you to Dustin W. Dunfield v. Jason Mosher, Case No. 16VE-CV00423 in the Circuit Court of Vernon County, Missouri, in Nevada.

I am an attorney. I have practiced law in Nevada, MO for 33 years, including 16 years as the Vernon County Prosecuting Attorney. Recognizing that no good deed goes unpunished, and that those who try to shed light on the work of the government are often vilified, I nevertheless am compelled to speak out.

In case no. 16VE-CV00423 Dustin W. Dunfield has attempted to rewrite the history of his plea of guilty to statutory rape in 1996. This is Dunfield’s third attempt to rewrite his history. Dunfield’s request to rewrite his history was denied in two separate cases in 2014 and a case in 2015 in which he sought to have his guilty plea set aside.

I have written a statement of the facts in the outline of a play. It allows your readers to follow the course of events. What was most recently done by Judge Bickel in 16VECV00423 appears in Act V. Your readers might want to skip to Act V and read about the actions taken by Judge Bickel in Vernon County. Acts I, II, III, and IV explain how the courts got to Act V. What happened in Act V is what compels me to write this letter.

The Cast of Characters includes me, and:

Dustin Dunfield, a practicing lawyer in Nevada, MO. Dunfield entered an Alford plea of guilty to a felony charge of statutory rape in 1996. Dunfield received his license to practice law in Missouri in 2011.

Hon. James R. Bickel, circuit judge of the 28th Judicial Circuit Court. Bickel reached age 70 and mandatory retirement on July 24th, 2016. He was then appointed by the Missouri Supreme Court to continue as circuit judge to the end of 2016.

Bryan Breckenridge, an attorney in Nevada, MO. Bryan Breckenridge was Dunfield’s attorney in the 2015 and 2016 cases filed by Dunfield. Bryan Breckenridge was a partner with Bickel in the same law firm before he became judge.

Ty Gaither, the current Cedar County prosecuting attorney. Gaither represented the people of the State of Missouri in the 2015 case filed by Dunfield in Cedar County, and was appointed special prosecutor in Dunfield’s 16VE-CV00423 case in Vernon County.

The Rape Victim from 1996. She is the most important member of the public and should have been given notice of the attempts by Dunfield to rewrite his history of pleading guilty to raping her.

Jason Mosher, Vernon County Sheriff. He is the named defendant in Dunfield’s 2016 case. Let me point out that Sheriff Mosher has done nothing wrong. He is not even the proper defendant in case 16VE-CV00423. The State of Missouri is the proper defendant in a case like this.

Hon. Neal Quitno. Currently Vernon County Associate judge. Quitno was county prosecutor and prosecuted the rape case against Dunfield in 1996.

Hon. Timothy W.Perigo. Judge Perigo from Newton County was assigned to to hear Dunfield’s first case in 2014 attempting to rewrite the history of his guilty plea. Perigo was assigned after Judge Bickel recused himself from the case.

Hon. Tom Pyle, Cedar County associate judge. Judge Pyle heard Dunfield’s second case in 2015 attempting to set aside his guilty plea

Act I: The Rape Case

 Scene 1 

In 1996 Dunfield entered an “Alford” plea of guilty to the felony crime of statutory rape. This occurred in Cedar County, Missouri at Stockton. An Alford plea is made when a defendant says to the court “I did not do it, but I have seen the State’s evidence against me, and I will plead guilty without admitting guilt, to receive the benefit of a plea bargain rather than risk going to trial in front of a jury.”

Dunfield received a Suspended Imposition of Sentence (SIS) and was placed on probation. He successfully completed his probation and the file was closed from public view. Under the SIS and completed probation Dunfield has no conviction for the crime of rape. The case is State v. Dunfield, No. CR896-3F in the Circuit Court of Cedar County, Missouri.

 Scene 2 

After Dunfield’s guilty plea, the rape victim filed a civil lawsuit in 1998 for damages against Dunfield. That case is Fetch v. Dunfield, Case No. 28V079700614, filed in Vernon County. Your readers can read this case for themselves, as I did. It is and always has been open to the public. It details the facts of Dunfield’s 1996 plea of guilty to statutory rape and sentencing.

ACT II: Dunfield the Lawyer

 Scene 1 

In 2010 Dunfield applied to take the Missouri Bar exam and become a licensed attorney in Missouri. Dunfield disclosed his “Alford” plea and SIS to the Missouri Bar. He was permitted to take the exam and was licensed to practice law in Missouri in 2011.

Act III: Dunfield the Candidate for Prosecutor

 Scene 1 

Dunfield filed a declaration of candidacy for the office of Vernon County Prosecuting Attorney in 2014 as a republican. Missouri law, Mo.Rev.Stat.¤ 115.349 required him to file the declaration. Dunfield filed the declaration stating that he had never pled guilty to or been found guilty of a felony.

Missouri law, Mo.Rev.Stat. ¤ 115.350 (now section 115.306) prohibited any person who has pled guilty to or been found guilty of a felony from becoming a candidate for any public office.

Dunfield filed this declaration even though he had entered a plea of guilty to, and was found guilty of, the crime of felony statutory rape 18 years earlier.

I was also a candidate for the office of prosecuting attorney in 2014 as a Democrat.

In July 2014 a friend of mine told me about Dunfield’s Alford plea of guilty to statutory rape. This is the first time I knew anything about it. My friend knows the mother of the rape victim. The mother sought me out. I met her for the first time in July 2014. She told me when she saw a “Dunfield for Prosecutor” sign it made her ill, and she told me about the criminal case against Dunfield and his plea of guilty in 1996 to the charge of raping her daughter. She told me about the civil suit filed by her daughter in Vernon County against Dunfield for damages. The public is under the mistaken belief that the daughter is Dunfield’s current wife.

 Scene 2 

Missouri law, Mo.Rev.Stat ¤ 115.631 makes it a felony crime to file a false declaration of candidacy for public office.

Since the declaration of candidacy was filed by Dunfield in Vernon County, and I was the prosecuting attorney, it was my responsibility as prosecuting attorney to find out if the guilty plea by Dunfield really happened. All law enforcement officials in Missouri have access to closed files involving a Suspended Imposition of Sentence. Although not available to the public, police and prosecutors use these SIS cases because guilty pleas that don’t result in a conviction can be used to determine whether later acts by the defendant constitute a new crime and the level of a new crime.

I did my job as prosecutor and verified the existence of Dunfield’s guilty plea and the suspended imposition of sentence (SIS). I then asked for a special prosecutor to be appointed to determine whether criminal charges should be filed against Dunfield for the felony of filing a false declaration of candidacy. Obviously I had a conflict of interest since Dunfield and I were running against each other for the office of county prosecutor. Vernon County Associate Circuit Judge Neal Quitno appointed the Missouri Attorney General to act as special prosecutor. Judge Quitno was the Vernon County prosecutor in 1996 and prosecuted Dunfield in the 1996 statutory rape case.

The Missouri Attorney General was at the same time appointed as special prosecutor to consider whether Dunfield should be charged with the felony crime of failing to register as a sex offender under Missouri law which implemented the federal Sexual Offender Registration and Notification Act (SORNA) in 1994. Dunfield has never registered as a sex offender. I again, obviously, had a conflict of interest.

The Missouri Attorney General still has time to act on both of these matters, although the statutes of limitation are running. The United States also has jurisdiction in the SORNA matter.

 Scene 3

Dunfield learned about my effort to confirm or deny his guilty plea and SIS for statutory rape. Dunfield’s SIS was listed in his criminal history. However, I learned as prosecutor sometimes information gets entered incorrectly in the national criminal database, so I wanted to confirm it with the Cedar County Court clerk who could lay hands on the actual court file from 1996. This prompted Dunfield to file a lawsuit in Cedar County against me trying to rewrite the history of his “Alford” guilty plea to statutory rape. Dunfield wanted to have the guilty plea set aside and be excused from registering as a sex offender. Now, I was not the proper party defendant. Dunfield was actually suing the State of Missouri. The case, Dunfield v. Ewing ex rel State of Missouri, 14CD-CV00261 (hereafter referred to as Dunfield’s 2014 case) is open to public view on Case.net. The proceedings were reported in the Nevada Daily Mail and El Dorado Springs Sun newspapers.

To avoid even the appearance of a conflict of interest I immediately asked for the appointment of a special prosecutor to defend the State of Missouri against Dunfield’s attempt to set aside his guilty plea and be excused from registering as a sex offender.

Prior to the hearing to have a special prosecutor appointed in Dunfield’s 2014 case in Cedar County, I filed a lawsuit in Vernon County to have Dunfield removed from the November 2014 election ballot. The case is Ewing v. Dunfield, 14VE-CV00467. More on that below. I was the only person, by law, that could bring the lawsuit.

Judge Bickel had recused himself from Dunfield’s 2014 case in Cedar County and my lawsuit in Vernon County. Judge Timothy Perigo was appointed judge in both cases.

Just prior to the hearing to have a special prosecutor appointed in Dunfield’s 2014 case, I was approached in the courtroom by retired Cedar County Associate Circuit Judge Joe B. Phillips. Judge Phillips asked to speak with me and Dunfield. We three did sit down in the jury room of the Cedar county Courthouse. Joe Phillips asked me if I would dismiss my Vernon county case seeking to remove Dunfield from the November 2014 ballot. I told him I would not do so. Joe Phillips asked me if “we” could just let Dunfield withdraw his guilty plea in the 1996 rape case, and suggested that if nobody complained about the lack of the court’s authority, then “the boy” (Dunfield) could “get on with his life.” I told the judge the court had no jurisdiction to set aside a guilty plea in a criminal case where an SIS was given and probation was completed and the case closed. I cited him a Missouri Supreme Court case, State ex rel. Harold Kauble, Relator v. The Honorable James R. Hartenbach, Respondent, Case No. SC87864 (2007). The rules apply to everyone equally, even lawyers. Judge Phillips acknowledged I was correct.

I returned to the courtroom. Former McDonald county prosecutor Duane Cooper was appointed by Judge Timothy Perigo to represent the State of Missouri in Dunfield’s 2014 case, to defend against Dunfield’s attempt to set aside his 1996 guilty plea. That was the end of my involvement in Dunfield’s 2014 case.

Several weeks later Judge Perigo held a lengthy hearing in Dunfield’s 2014 case. The hearing in August occurred in the courtroom of the Cedar county courthouse. The judge found that Dunfield had in fact made an “Alford” plea of guilty in 1996, had in fact been found guilty, refused to set aside the guilty plea, and “advised” Dunfield to register as a sex offender. My lawsuit to remove Dunfield from the November 2014 ballot was still awaiting a hearing. I alleged, under Mo.Rev.Stat. ¤ 115.350 (now 115.306), that because Dunfield had pled guilty to and been found guilty of felony statutory rape he could not assume the office of Vernon County Prosecuting Attorney even if he won in the November election. If he tried to assume the office a special Vernon county prosecutor would be required to file a quo warranto writ to remove him from office.

I had a difficult choice to make in deciding whether to file the lawsuit to remove Dunfield from the ballot. I could A) choose to not file the lawsuit and even if Dunfield won the November election he could not assume the office (and would be removed if he did) and I would continue as prosecutor for another four years (there is a Missouri Supreme Court case from many years ago that holds this would be the result) OR, B) file the lawsuit to remove him from the ballot and see if the Vernon County Republican committee nominated a new candidate for the November election.

I chose to file the lawsuit to remove Dunfield from the ballot. It was very surprising to me that the public thought this nothing more than “dirty politics.” Now, I could have delayed a court hearing on my lawsuit until late September in which case under state statute it would have been too late for the Vernon County Republicans to nominate a new candidate. I would have been unopposed for re-election. Instead, I believed that the public had a right to a fair election and made sure the court could rule and did rule whether to remove Dunfield from the ballot in time to give the Republican committee the chance to find a new candidate.

I did not think option A above (sandbagging) was fair to the public. The public would never understand how I was still prosecutor if Dunfield received the most votes. I did think the best thing to do was option B and to be sure the court ruled in time to allow the opposite party to try and find a candidate to replace Dunfield on the November ballot. Judge Perigo ordered Dunfield’s name removed from the ballot.

The public thought I was engaging in “dirty politics”; I tried to explain to the people why the removal of Dunfield from the ballot was in their best interest. The Republicans found a new candidate. I lost. Fair and square. I did the right thing for the people of Vernon County. I was honest and straightforward with the voters. The people had a real election for Prosecutor in November 2014.

Act IV: Dunfield Won’t Take “No” for an Answer 

Dunfield filed a second lawsuit in Cedar County in 2015 to set aside his 1996 guilty plea. (hereafter referred to as Dunfield’s 2015 lawsuit). This is a Motion to Set Aside Guilty Plea attached to his 1996 criminal file, CR896-3F. Dunfield hired Bryan Breckenridge as his attorney. Cedar County Prosecutor Ty Gaither represented the State of Missouri. The criminal file remains closed to public view and does not appear on Case.net.

Judge Tom Pyle must have denied Dunfield’s request to set aside the 1996 guilty plea. We can infer this from the fact Dunfield filed his lawsuit in 2016. Judge Pyle clearly understood that the court had no jurisdiction, and there is nothing a court can do in a case where a defendant pled guilty, received an SIS, completed probation and the case is closed. Judge Pyle must have followed the law set out in the Missouri statutes and the Missouri Supreme Court decision in Kauble.

Act V: Dunfield Still Won’t Take “No” for an Answer 

The events in this act are what trouble me.

Dunfield filed his third lawsuit making the same allegations he made in his 2014 and 2015 lawsuits. This time he filed his case in Vernon County. He filed it as a civil suit. The case is Dustin W. Dunfield v. Jason Mosher, Case No 16VE-CV00423. Dunfield asked the court again to set aside his 1996 guilty plea to the crime of felony statutory rape.

The timing and the course of events and the players involved is curious. The actions and the decision of Judge Bickel is what prompts this letter. Somebody needs to inform the people. Follow along, careful reader:

Dunfield filed his lawsuit on July 20, 2016. His lawyer is Bryan Breckenridge, former law partner of Judge Bickel.

On 21 July Bickel scheduled the case for hearing on August 16, 2016. Bickel also ordered the case file sealed, so nowhere was the existence of this new lawsuit revealed to the public.

Unlike in Dunfield’s Cedar county cases in 2014 and 2015 and my lawsuit in 2014, Bickel did not recuse himself from this case. Bickel does not do so even though his former law partner is representing Dunfield.

On 24 July 2016 Bickel reached age 70 and mandatory retirement. The Missouri Supreme Court assigned Bickel to serve as circuit judge until the end of 2016.

On 26 July 2016 Bryan Breckenridge, Dunfield’s attorney, filed a request for a special prosecutor. Bickel appointed Cedar County Prosecutor Ty Gaither to represent the State of Missouri and defend against Dunfield’s third attempt to rewrite history and set aside his guilty plea.

On 26 July 2016 I learned of this third lawsuit. On July 28 I looked for the case on Case.net, the internet public information portal for Missouri courts. It was not listed as a pending case. The case was closed and its existence hidden from the public even though Bryan Breckenridge did not file a request to seal the file until 5 August 2016; which request was granted by Judge Bickel that same day. The court rules require a finding of good cause to close a civil file. No such finding is revealed anywhere in the court record.

On 8 August 2016 the existence of the case was still unavailable to the public, so I filed a request for the records under the Missouri Sunshine Law, and to have the clerk show the case information on Case.net.

On August 11, 2016 the Clerk of the Vernon County Circuit Court denied my requests for the records and to show the case information on Case.net. I appealed the clerk’s denial to the Office of State Courts Administrator (OSCA). OSCA denied my request on 17 August 2016 (the day after Bickel held the hearing in the case).

On 16 August 2016 Judge Bickel proceeded to hear Dunfield’s third attempt to set aside his 1996 guilty plea to felony statutory rape. At this point the case is still closed, not shown on Case.net and the public knows nothing about it. Bickel opened the Vernon County courtroom and the case proceeded in public view. Except there is no public, because they don’t know about the lawsuit or the hearing. No notice was given to the rape victim. No notice to Dunfield’s defense lawyer in the 1996 rape case. No effective notice to the public in general.

Bickel entered an order on 16 August 2016 setting aside Dunfield’s 1996 guilty plea to felony statutory rape. He did so despite the Missouri Supreme Court decision in State ex rel. Harold Kauble, Relator v. The Honorable James R. Hartenbach, Respondent, Case No. SC87864 (2007)

I am allowed to present the facts. The file is now open for public scrutiny on Case.net.

Epilogue

Judge Bickel can-without anyone asking-reconsider his order. The State of Missouri can ask for a rehearing by Bickel. The State can appeal Bickel’s ruling. Ty Gaither has advised the press and me that he does not intend to do anything. Do the right thing Ty—file a Motion to Reconsider; appeal the case. Follow the law! Refusing to file a Motion to Reconsider or appeal the court’s decision is not, as you suggest, “the right thing to do.” You know the Court had no jurisdiction to do what it did. You knew it in 2015. Judge Pyle knew it. Judge Perigo knew it in 2014. Do it for the rape victim. Do it in the interest of the administration of justice and public confidence in the Missouri Courts.

The people are smart enough to figure out what just happened here.

Very Truly Yours,

Paid for by Lynn M. Ewing III