Westfall, Matter of, No. 72022
| Decision Date | 03 May 1991 |
| Docket Number | No. 72022 |
| Parties | In the Matter of George E. (Buzz) WESTFALL, Respondent. |
| Court | Missouri Supreme Court |
John L. Oliver, Jr., Cape Girardeau, for informant.
George E. Schaaf and Gerald P. Greiman, Clayton, for respondent.
This is an original disciplinary proceeding instituted by the Advisory Committee of the Missouri Bar pursuant to Rule 5 against respondent, George R. (Buzz) Westfall. The information charged respondent with violation of Rules 8.2(a) and 8.4(a) and (d) of Rule 4, Rules of Professional Conduct, and requested that respondent be disbarred from the practice of law. The Court appointed as Master to hear the proceedings the Honorable Bruce Normile, Judge of the 2nd Judicial Circuit. Judge Normile made findings and recommended that respondent be suspended from the practice of law for one year and that the order of suspension be stayed subject to certain conditions. In a disciplinary proceeding the Master's findings, conclusions and recommendations are advisory in nature. This Court reviews the evidence de novo, determines independently the credibility, weight and value of the testimony of the witnesses, and draws its own conclusions of law. In re Waldron, 790 S.W.2d 456, 457 (Mo. banc 1990).
At all times relevant respondent served as prosecuting attorney of St. Louis County and as such was involved in a series of prosecutions of Dennis Bulloch for crimes committed in connection with the death of Bulloch's wife, Julia. Respondent first led the prosecution of Bulloch for murder in the first degree. Bulloch was acquitted of that charge and found guilty of involuntary manslaughter. He was subsequently indicted on charges of armed criminal action and destroying physical evidence. The trial court denied Bulloch's motion to dismiss the indictment on grounds of prosecutorial vindictiveness and double jeopardy. Bulloch then filed petition for a writ of prohibition in the Missouri Court of Appeals, Eastern District, seeking to bar further prosecution of these charges. The court of appeals issued a preliminary rule in prohibition and subsequently made the writ absolute.
The court of appeals' opinion in the matter, the unanimous opinion of a three-judge panel of the court, was authored by the Honorable Kent E. Karohl. The court held first that the question of prosecutorial vindictiveness involved disputed facts, a matter to be considered on direct appeal if required. Relying on Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the court also held that a subsequent trial of Bulloch for armed criminal action would constitute a violation of Bulloch's protection under the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States. 1 Missouri v. Hunter held that where the legislature specifically authorizes cumulative punishment under two statutes, regardless of whether these two statutes proscribe the "same" conduct, it does not violate double jeopardy to impose cumulative punishment under such statutes in a single trial. Id., 103 S.Ct. at 679.
On the day the opinion was issued, respondent made remarks that constitute the basis of the information filed in this case. KSDK-TV, Channel 5, an NBC affiliate in St. Louis, broadcast videotaped portions of an interview with respondent on the 6:00 p.m. and 10:00 p.m. news programs. Respondent's statement was broadcast as follows:
... The Supreme Court of the land has said twice that our armed criminal statute is constitutional and that it does not constitute Double Jeopardy.
....
... but for reasons that I find somewhat illogical, and I think even a little bit less than honest, Judge Karohl has said today that we cannot pursue armed criminal action. He has really distorted the statute and I think convoluted logic to arrive at a decision that he personally likes.
....
The decision today will have a negative impact on all murder one cases pending in Missouri, in the future in Missouri, and some that are already on appeal with inmates in prison. So it's a real distressing opinion from that point of view.
....
But if it's murder first degree and we're asking for death, which, of course, is the most serious of all crimes, Judge Karohl's decision today says we cannot pursue both. And that, to me, really means that he made up his mind before he wrote the decision, and just reached the conclusion that he wanted to reach.
The information filed by the Advisory Committee charges respondent with violating Rules 8.2(a) and 8.4(a) and (d), of Supreme Court Rule 4, Rules of Professional Conduct. Rule 8.2(a) provides:
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
Rule 8.4 provides in pertinent part:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of Professional Conduct....
(d) engage in conduct that is prejudicial to the administration of justice....
The Advisory Committee submits that respondent reacted to Judge Karohl's opinion in utter disregard of the truth, of the integrity of the judicial process, and of respondent's obligations with respect thereto. The Committee further submits that respondent engaged in this conduct without investigation of the facts and without factual basis for his statements. The Committee briefed and argued additional violations not contained in the information. This Court will consider only those charges contained in the original information. See Matter of Smith, 749 S.W.2d 408, 414 (Mo. banc 1988).
In defense respondent contends that his statements were directed to the court of appeals' opinion and not to the qualifications or integrity of Judge Karohl and thus did not concern the qualifications or integrity of a judge. Respondent also asserts that the statements in question were merely the expression of opinion and, because opinion cannot be false, the statements are not proscribed by Rule 8.2(a).
This Court first addresses respondent's protestations that his statements were merely expressions concerning the soundness of the court of appeals' decision, not statements of actual and provable facts about the judge's integrity. His contentions are not well taken. First, respondent stated that "the Supreme Court of the Land has twice said our armed criminal action statute is constitutional and that it does not constitute Double Jeopardy." Immediately following, respondent stated:
... but for reasons that I find somewhat illogical, and I think even a little bit less than honest, Judge Karohl has said today that we cannot pursue armed criminal action. He has really distorted the statute and I think convoluted logic to arrive at a decision that he personally likes.
(Emphasis added). Later followed this personalized language:
But if it's murder in the first degree and we're asking for death which, of course, is the most serious of all crimes, Judge Karohl's decision today says we cannot pursue both. And that, to me, really means that he made up his mind before he wrote the decision, and just reached the conclusion that he wanted to reach."
(Emphasis added.) The statements personalize the judge's conduct and specifically refer to him, his motivation, and his integrity as it relates to his participation in the appellate judicial process.
Respondent contends that his statements plainly reflect subjective opinion and not verifiable factual assertions. Because opinion cannot be "false," he argues, his comments are not proscribed by Rule 8.2(a). In support of this position, respondent would have this Court microscopically examine the subject phrases independent of each other. He also would have this Court accept his after-the-fact characterization that his words, in sum, simply meant that the court of appeals opinion was "intellectually dishonest."
Respondent seeks to obfuscate the issue. He merely creates an "artificial dichotomy" between opinion and fact. Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). In Milkovich the Court refused to recognize an artificial dichotomy between opinion and fact, relying instead on whether there was an assertion of objective fact:
If a speaker says, 'In my opinion John Jones is a liar,' he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, 'In my opinion Jones is a liar,' can cause as much damage to reputation as the statement, 'Jones is a liar.'
Respondent's statements clearly imply an assertion of objective fact regarding Judge Karohl's judicial integrity. The Master so found and this Court agrees. Respondent's language at the very least implies that the judge's conduct exhibited dishonesty and lack of integrity and is sufficiently factual to be susceptible of being proved true or false.
Respondent's continued assertion that the statement "a little bit less than honest" was simply another way of saying "intellectually dishonest" is not well taken. This Court acknowledges but does not condone the all too frequent and often imprecise, rhetorical use of the term "intellectually dishonest." In any event, in his attack on the judge respondent does not support his assignment of "dishonesty" by anything other than pointing to the long and tortuous history of armed criminal action in Missouri and expressing his assumption that a Missouri court was again in...
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