The state’s highest court will hear arguments Tuesday on whether Springfield attorney Peter Bender should be disciplined for violating ethical standards by allegedly tricking a woman into helping Bender’s client, a man she says abused her and threatened to kill her and her children.
Bender, a lawyer since 1995, in 2019 represented Matthew Johnson, who was charged with several misdemeanor and felony charges against a woman known in court documents as B.C.
The oral arguments can be heard (not seen) at 9 a.m. on Feb. 28.
According to documents, Bender and his client Johnson, who was in the Greene County Jail at the time, both played a role in having B.C., Johnson’s alleged victim, go to Bender’s office to discuss what the two men described as a possible “fraud on the court.”
As a result, B.C. met alone in Bender’s office and then, according to court documents, she signed an affidavit — a statement made under oath and admissible in court — that she was not afraid of Johnson, that she thought he should be released from jail and that she did not attend an earlier preliminary hearing because she did not want to pursue the case.
Court documents state Bender chose the wording of the affidavit, his secretary typed it and that B.C., after pondering the decision for some 20 minutes, signed it.
‘Crafted in a way to confuse and trick’
B.C. said soon after she did not understand her statements were being made under oath and that what she actually said was that she was not afraid of Johnson while he was in jail.
Johnson remained in jail and is in prison today, since Oct. 23, 2019.
He pleaded guilty to tampering or attempting to tamper with a victim in a felony prosecution; resisting/interfering with arrest for a felony; stalking; and violation of an order of protection.
Johnson was sentenced to eight years in prison. He was previously incarcerated from Dec. 11, 2008, to Jan. 3, 2017, according to a spokeswoman for the Department of Corrections.
Bender says he has done nothing wrong and should not be reprimanded.
Aaron Wynn was the assistant prosecutor in the criminal case. He testified at a May 4, 2022, hearing in the disciplinary matter pending against Bender. That hearing generated three volumes of testimony and other evidence.
Wynn said this about Bender’s conduct:
“The way that affidavit was crafted was in and of itself inherently manipulative and I believe was worded in a way and crafted in a way to confuse and trick (B.C.), which is why she immediately called our office after leaving, crying, realizing that she had made a terrible mistake.”
Wynn has subsequently left the prosecuting attorney’s office to enter private practice.
Panel recommended complaint be dismissed
According to court documents, B.C. had sent an email to the prosecutor’s office saying she would not attend the preliminary hearing because Wynn would not be able to attend, which would have meant a different prosecutor, possibly one she had never met, would be present.
She wrote in the email she would “go to the next one because I can’t do it if Aaron is not there.”
The complaint against Bender’s professional conduct was filed by the Greene County Prosecuting Attorney’s office.
A disciplinary hearing panel recommended that the allegation — called an “information” rather than a “charge” — be dismissed.
But Laura Elsbury, chief counsel for the Office of Chief Disciplinary, has not done so, asking that Bender’s law license be suspended for at least six months.
Guy in jail had new romantic partner relay the message
The fact that B.C. did not appear at the preliminary hearing is significant.
Criminal defendants have a constitutional right to face their accusers. If an accuser in a domestic assault case does not testify, prosecutors often dismiss the case.
But an exception to that Sixth Amendment right is when the defendant has tampered with a witness to discourage that witness from testifying. The legal term is “forfeiture by wrongdoing.”
A defendant who threatens a witness into not testifying can then lose the right to face the accuser in court.
That’s what happened in this case.
The circuit judge found evidence of a history of intimidation and ruled that Johnson had forfeited his right to face his accuser in court, at least at the preliminary hearing.
In his defense, Bender has said he did not contact B.C., but B.C. contacted him.
According to court documents, Johnson (who was in jail at the time) talked with Bender about the strategy of getting B.C. to say she willingly did not attend the preliminary hearing and was not afraid of Johnson.
What happened, according to documents, is that Johnson’s new romantic partner approached B.C. about seeing Bender at his law office and B.C. agreed. The new romantic partner accompanied her.
‘The State does not own the witness’
According to documents, B.C. was told she had to go there in person; she could not talk to Bender over the phone.
Bender has said he made it clear to B.C. that he was Johnson’s attorney, not hers, and she did not have to talk to him.
He has also pointed out, in his defense, that it is his duty as a criminal defense attorney to interview all witnesses.
He argues: “The State does not own the witness and there is no authority for the proposition that a defense attorney cannot interview a victim and take a statement from the victim.
“If Respondent (Bender) is sanctioned for interviewing a victim witness and obtaining a witness affidavit the Court would send a chilling message to all attorneys who defend criminal cases regarding their ability to interview witnesses without oversight by the State.”
‘Dartboard at the prosecutor’s office’
Bender is accused of violating an ethical provision that says “a lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel.”
For those who might not know, a prosecutor is not the personal attorney for a victim.
Bender is also accused of having a conflict of interest. When his client, Johnson, was accused of tampering with B.C., that accusation involved Bender and Bender should have withdrawn from the case at that point, but did not, according to the information.
Bender’s counter-argument is that the prosecuting attorney’s office was trying to concoct a conflict in order to get him off the case. He said:
“I also thought that the State was trying to engineer conflicts to try to knock me out because they don’t really like me over there. If they had a dartboard at the prosecutor’s office in Greene County, it would have my face on it because they’ve lost 40 jury trials.”
Lawyer took advantage of ‘vulnerable’ victim, information alleges
The information accuses Bender of knowing B.C. was “vulnerable as the victim of domestic violence at the hands of his client, Mr. Johnson. Respondent knew that his client had threatened to kill B.C. and her children.
“Respondent knew that his own conduct was likely to be viewed as victim tampering, yet he lured B.C. to his office under the pretense of wanting to ask her some questions, when he knew all along he wanted to get her to sign an affidavit for the purpose of reversing the preliminary hearing decision and getting his client released from jail.”
(Bender was never charged with victim tampering or any other crime.)
According to court documents, the history of Johnson’s alleged abuse of B. C. includes:
- On Sept. 11, 2018, B.C. called police because Johnson had kicked her back door multiple times
- On Sept. 13, 2018, the police responded to B.C.’s home because Johnson was fighting with her father
- On Oct. 19, 2018, B.C.’s mother called police because Johnson had attempted to strike her. Additionally, he had a knife and threatened to “stab her to death” before proceeding to break items around the home
- On Oct. 20, 2018, Johnson telephoned B.C. and threatened to “kick her ass”
On or about Oct. 22, 2018, the Circuit Court issued a full order of protection for B.C. against Johnson. Nevertheless, the following incidents were cited by the State:
- On Nov. 13, 2018, Johnson struck the hood of B.C.’s car with a baseball bat and climbed onto the hood. He later threatened, via Facebook message, to kill her
- On Dec. 8, 2018, police responded to B.C.’s home. When they got there, Johnson was there, but B.C. told them he had gone because he was holding her child, and she was afraid of what he might do. He had threatened to tie her up and burn her house down
- On Jan. 3, 2019, police were called to B.C.’s home and found Johnson inside. He had come in through a window after she refused to open the door
