The Missouri Supreme Court this week reprimanded Peter Bender, a Springfield criminal defense lawyer, settling on a lesser punishment than suspending his license to practice law.
The state’s high court heard arguments Feb. 28 and ultimately agreed that Bender had represented a client despite a conflict of interest and that he engaged in conduct prejudicial to the administration of justice.
Laura Elsbury, chief counsel for the Office of Chief Disciplinary, had asked that Bender’s law license be suspended for at least six months.
She pursued the case against Bender even after a disciplinary hearing panel recommended that the allegation — called an “information” rather than a “charge” — be dismissed.
The Springfield Daily Citizen published a story about the allegations of professional ethical misconduct against Bender on Feb. 27.
Victim says defendant threatened to kill her and her children
Oral arguments were made before the court on Feb. 28.
According to a story in the Missouri Lawyers Media, Judge W. Brent Powell said:
“I do have some sympathy for the argument that as a criminal defense lawyer you have to have the opportunity to try to talk to witnesses and folks,” Powell said. “Any action we were to take in this action, I would not want to send the wrong message.” He added, however, that the facts of the case were “horrific.”
Bender was represented in the allegations of professional ethical misconduct by his father and law partner Richard Bender.
A reprimand from the high court has no impact on Peter’s ability to practice law, he said.
“If there is a claim against him in the future, the fact that he has been reprimanded once would be a factor,” the elder Bender said.
The Springfield Daily Citizen asked Richard if the allegations hurt his son’s law practice or helped it.
“There is no way I can totally estimate that,” he said. “There might be some people who think ‘Oh my God, he did something terrible.’ There might be others who say he was fighting for his client.”
Elsbury had contended that Bender, who has been a lawyer since 1995, violated ethical standards by allegedly tricking a woman into helping Bender’s client, a man she says who abused her and threatened to kill her and her children.
Bender represented Matthew Johnson, who was charged with several misdemeanor and felony charges against the woman — known in court documents as B.C.
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. 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.
Attorney chose words he wanted victim to say
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.
B.C. said soon after meeting with Bender she did not understand that 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.
Purpose was to ‘confuse and trick’
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. 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.
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.
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.
A history of intimidation in criminal 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.
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.
‘State does not own the witness’
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.”
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 was 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 practices law with his father, Richard, at the firm Bender & Bender. His father represented him in the allegation of unethical behavior.
The information accused 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.”
(Bender was never charged with victim tampering or any other crime.)
