(MO) DA's Office on Trial


September 13, 2007, 12:59 AM
Kline's Office Goes On Trial
Wed Sep 12, 2007 at 03:49:12 PM

The credibility of Johnson County District Attorney Phill Kline's office was on trial earlier today, and, in District Judge Thomas Bornholdt's eyes, the dispute breaks down to one key question: Is it a crime to scare an employee of the district attorney's office with a gun?

The question follows an April 2 incident at the Stilwell home of Theodore Herzog. Herzog was cleaning his pistol and shotgun when Tom Williams, an investigator with Kline’s office, showed up in his driveway that night.

The DA's office had dispatched Williams to Herzog's residence to subpoena Brandy Cox as a witness in a drunken-driving case.

Williams, who was dressed in business-casual clothes, drove an unmarked Ford Escape up the long driveway to Herzog's home. He wasn't wearing an identifiable uniform, nor did he have credentials identifying himself as an investigator with the DA's office.

As Williams approached, he could see lights on in the brick house.

On Wednesday, Williams testified that when he parked in the driveway, he spotted Herzog in the open garage and retrieved a pistol from his truck.

According to court records filed in June, Herzog and Williams butted heads.

“What do you want?” Herzog called out to the stranger in his driveway.

“I have a warrant for Brandy Cox,” Williams said.

“She ain't here.”

“Is that a gun?”

“Yeah, it's a gun,” said Herzog, who was holding the handgun at his side. (Herzog would later tell police that he never pointed the gun at Williams.)

“OK, well I'm going to get the law,” Williams said.

“Good. Go get the law,” Herzog said.

Herzog told Williams to get off his property and added that he was also going to call 911.

The encounter lasted less than a minute, Williams said Wednesday morning.

Williams retreated to the edge of Herzog's drive to call 911. The dispatcher asked Williams if the gun was ever pointed at him. “In my general direction,” Williams told the dispatcher. He added, “I'd a shot him if I had a gun.”

Then lead prosecutor Stephen Maxwell beeped in.

“The gun was pointed right at me, maybe not, pretty damn close,” Williams told Maxwell. “It scared me bad enough that I backed up and said, 'Hey, I'm out of here. I'm leaving.'

“Steve, I want him charged,” Williams added.

During today's preliminary hearing, Williams claimed Herzog stepped two to three feet outside of the garage and moved toward him in a “threatening manner” while waving the handgun.

On cross-examination, defense attorney Tom Bath asked, “Did he say, 'I'm going to shoot you,' or anything?”

“No,” Williams replied.

About 20 minutes after Williams called 911, Johnson County sheriff's deputies arrived. According to court records, the deputies spoke with Williams, Herzog and the on-call assistant district attorney, Erika Rasmussen. The deputies and Rasmussen determined that there was no probable cause to arrest Herzog. When the deputies told Williams no arrest was made, court records allege that Williams called Maxwell, who called the sheriff's department and demanded Herzog be arrested. Herzog was then arrested and jailed.

Johnson County Sheriff's Deputy Christopher Grey contradicted Williams' claim that Herzog exited the garage. Grey said Williams told him that Herzog never left the garage. Grey also testified that Williams said Herzog never pointed the gun at him and kept the barrel aimed toward the ground.

The next day, the Johnson County District Attorney's Office prepared an affidavit to formally charge Herzog with aggravated assault. It was based on a report prepared by Johnson County sheriff's deputies. A magistrate judge found that Herzog hadn't committed a crime and ordered Herzog to be released.

Herzog's attorney, Tom Bath, alleges in court documents that “upon learning that the Court refused to charge Mr. Herzog, Williams then prepared a report alleging Mr. Herzog committed the crime of Aggravated Assault.”

Today, Judge Bornholdt seemed unimpressed by the prosecution's attempt to bind Herzog over for trial on obstruction of justice charges.

“Oh, come on, please,” Bornholdt chided special prosecutor Ed Brancart. “This guy [Williams] was in plain clothes with no identification.”

Just because someone claims to be a representative of the district attorney's office doesn't mean that he is one, Bornholdt said.

However, Bornholdt said Herzog brandishing a firearm was cause for “reasonable apprehension.”

After today's hearing, defense attorney Bath said he'd never seen a case in 21 years in which the alleged victim, in this case Tom Williams, got to sign an affidavit authorizing the arrest of an alleged perpetrator (Herzog).

“As far as I'm concerned,” Bath said, “they've admitted their misconduct.”

A jury is slated to decide on December 10. -- Justin Kendall


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September 13, 2007, 01:22 AM
Herzog's getting Nifonged it appears.

September 13, 2007, 01:31 AM
More to this than an overly zealous DA. Also a major difference between lying about evidence being witheld, and lying about the substantive facts of a case, AFTER having already made a contradictory statement to law enforcement. This is a clearcut case of vengeful prosecution combined with either making false statements to police or perjury. I wonder if Mr. Maxwell will be turning around and charging Mr. Williams, as he has committed one or the other crime.

September 13, 2007, 02:17 AM
so is it illegal to challenge somebody that is on (your) private property uninvited? he never pointed the gun at him or threatened him in any other way, and was told to leave. I dont see the problem, whether he stepped 2 feet out of his garage or not. it is still his property.

El Tejon
September 13, 2007, 08:22 AM
kermit, do not fall for the "it's my property" line of the gun shoppe commandos.

One cannot do whatever one wishes on his property. For example, you cannot point guns at people unless in self-defense.

There seems to be a factual dispute. We'll see what happens.

September 13, 2007, 08:42 AM
Good...follow this farce through and SUE the hell out of them. Document all the mental and medical trauma this is causing the "victim/perp". Clearly a case of abuse of power. I'll bet that this gets called off well before trial and hopefully without the "victim/perp" agreeing to any kind of plea bargain.

September 13, 2007, 12:47 PM
Minor point, This happened in Johnson County, Kansas, not Missouri. I know both the judge and the county sheriff. They both are good people. The judge was my attorney until he was appointed to the bench. The currrent sheriff was running for office when we started the finial process to get concealed carry here in Kansas. His position then and now was that he would uphold what ever the law says.

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