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Darrell Smith. Photo from Greene County Jail.


Todd Myers is the Chief Assistant Prosecutor of Green County, Missouri which includes the town of Springfield in the southwest part of the state. He was recognized as an “Up & Coming Attorney” in Missouri Lawyers Weekly a few years ago, and with good reason. He had the highest rate of DWI convictions in the state. He was designated as a Special Assistant U.S. Attorney to handle firearms violations; he’s handled numerous jury trials including high-profile homicides, assaults, robberies, and the like. He’s even an adjuct professor at a local university. He’s upset, however, over Amendment 5 . . .

to the Missouri Constitution–passed by a landslide last August–which subjects any restriction on the right to keep and bear arms to strict scrutiny.

Myers said the charge of felony possession of a firearm is a very important one in his arsenal.

“Drug dealers, gang members, domestic abusers, those are the types of people that are committing most of the most serious shootings in our community and we’d like to make sure we can prosecute them if they’re caught with firearms….”

Myers also said that Amendment 5 has kept him from putting people behind bars for longer periods of time. He gave as an example the case of Darrell Smith.

“Smith had prior convictions for felony stealing,” Myers said. “We were unable to pursue a felony murder charge against him based upon him being a felon who killed someone while he possessed a firearm. Instead that case went to trial on a traditional murder charge and he ended up being convicted of involuntary manslaughter.”

Myers said his office has given up on pursuing felony possession cases in which prosecutors cannot prove the suspect has a previous violent felony conviction. Moving forward, he said he would like to see legal clarity.

“What I’d like to see occur is that our Missouri state law be consistent with the federal law that any felon be prohibited from possessing a firearm,” Myers said.

Putting aside for the moment the fact that Smith could still be charged with violating federal law (which still prohibits persons convicted of a crime potentially punishable by more than one year in prison from possessing a firearm,) Darrell Smith was indeed found guilty of second-degree involuntary manslaughter as well as armed criminal action. He had originally pled guilty to second-degree murder, but withdrew his plea after the passage of Amendment 5.

The jury had the opportunity to choose between “charges of second-degree murder, first-degree involuntary manslaughter and second-degree involuntary manslaughter….” They found Smith guilty of second-degree involuntary manslaughter — the least serious charge — “after three hours of deliberation.” Second-degree involuntary manslaughter has a maximum penalty of seven years in prison.

Let me repeat that: Smith was found guilty only of involuntary manslaughter. The jury had the opportunity to convict him of the charge he’d original pled to, second-degree murder, but decided that the evidence presented wasn’t sufficient to convict.

Mr. Myers is no doubt correct: as a prosecutor, having the ability to throw a few extra charges at people that you just know are guilty of something is useful. It’s obviously much easier to convict someone of being a felon in possession of a firearm than it is murder. And sometimes prosecutors’ feelings actually are right — the guy they suspect of being guilty of doing something nasty, but can’t prove with the evidence actually is a miscreant that shouldn’t be allowed to walk the streets freely. Making a few more things illegal so that they can prosecute those people in the gray area might, potentially, keep a few more criminals behind bars.

But is that what we want from our justice system? Is it, in any sense, justice to allow prosecutors the flexibility to nail anyone they desire?

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  1. Additionally, the ability pile up a whole list of charges gives the prosecutor significantly more leverage in getting someone to plead guilty vice go to court and fight the charges. The number of years they face can be significantly larger at the bargaining table making the perceived risk in fighting the charges and a plea deal (even if they’re innocent of all or some of the charges) look much better.

  2. Here’s a wacky idea. If you’re not sure what to charge with… Perhaps you should make a charge consistent with your theory of the crime? It’s impossible for the same theory of the crime to result in a conviction for the lowest and highest included charge.

    This idiot is just complaining because he gave the jury a Chinese menu and they didn’t choose the items he wanted them to.

    • “Here’s a wacky idea. If you’re not sure what to charge with… Perhaps you should make a charge consistent with your theory of the crime?”

      That’s not a helpful attitude to take when the prosecutor has visions of political aspirations dancing in their head…

  3. If Smith had prior convictions of felony theft, then why exactly could they not charge him with felony in posesstion of a firearm? What am I missing?

    • As I understand it, they were wanting a “convicted felon in possession of a gun” enhancement, not just a “prior felony” enhancement. They are apparently afraid that if they do use a “felon with a gun” enhancement, the defendant will take it up on appeal and the gun enhancement provision will fail the “strict scrutiny” test. That’s the best I can figure–I am actually trained as a lawyer, and it’s a bit confusing to me.

      • That was my take-away, , that it isn’t the mere felon in possession charge they want to hit him with, as if he had just been a felon walking down the street with a firearm. Rather, they wanted to upgrade the criminal homicide charge based on the accused being a felon who used a firearm in the commission of that crime. That upcharge was in jeopardy of being tossed out due to the newly passed standard for firearms related crimes.

        I say firearms freedoms are so important that strict scrutiny should be the standard. The State gas plenty of tools at their disposal to convict bad guys. They don’t need any shortcuts, certainly not at the expense of firearms freedom.

        That said, I’m still ok with a felon in possession charge as a stand alone crime, for violent felons, but not as a finger-on-the-scale means of upcharging people in other cases with lighter standards of evidence.

    • I sort of gathered it was federal vs state prosecution causing the problem. But this “add more laws so I don’t have to do my job” crap has been going on for decades, if you shoplift a pack of chewing gum you’ll have a half-dozen charges before they’re done. That is crap, and it has been crap since the NFA of 1934, passed so that gangsters could be prosecuted for their constitutionally guaranteed carrying of machine guns instead of an actual crime. I don’t care if you possess a battleship, what was the crime?

    • I’m guessing that, whether as a matter of practice or because of the amendment, the prior felony has to be a violent felony. So if they can’t prove a violent prior, they don’t get the felon in possession enhancement. And they do not get to charge federal crimes (no jurisdiction). Which, considering the number of things that can get you convicted of a felony, many of which are not violent crimes, seems pretty fair; only violent crimes cause you to lose your gun rights.

    • From other articles I’ve read, his previous felony conviction was not for a violent crime and under MO law that is no longer a bar to owning a weapon. To lose your right to posses a fire arm you must be convicted of a “violent” felony. Had the law been every felon was disallowed to posses a firearm, the prosecutor could have added felon in possession charges to the mix and it might have put a different slant on the killing as well. I’m not a lawyer, but that’s my understanding.

  4. When did “Better to let ten guilty men go free, rather than convict one innocent man.”
    “Let’s seize all his assets, and then trump up every charge we can find while he can’t afford to prove his innocence. We’ll rely on minimum sentencing threats to force him into a plea bargain.”?

    • 1934.

      Seriously, I suspect it’s always been that way to some extent but it certainly has gotten more so since the start of the “War on Whatever We Think is a Social Ill” campaigns: alcohol, poverty, drugs, child obesity, etc.

      Basically, right around the time when the government at various levels realized that people will not always do what you want them to, and decided to increase the size of their “persuasion” toolbox…

    • I tched a story a couple of nights ago where someone called the police because his friend was despondent and had been drinking heavily. The police went to the judge with an affidavit claiming that the friend, who by the way had no criminal record whatsoever, “may have hostages,” and allegation unsupported by the report to the police or any evidence at all. They got a no-knock warrant and called out the SWAT team. The team broke down his door, and found him in his tub. They tossed in a stun grenade. or two. shot him with a nonlethal 40 cal round. Dragged him out naked and arrested him. The police report was obviously full of lies to cover up a bad raid. But they seized his (unloaded) shotgun anyway. The DA came up with charges later–resisting arrest and interfering with police were prominent. The DA got no billed by the grand jury–not once but twice. He still proceeded to trial on a misdemeanor, and got defensed. So there was no crime, but this poor guy lost part of his hearing, his savings, and his children, although he had commited no crime except being depressed over the failure of his marriage.

    • Personally, I’m more in favor of:
      “Acquitting the guilty and condemning the innocent—the Lord detests them both.” Proverbs 17:15 (NIV)

      While I can certainly sympathize with wanting to get known scumbags off the streets as quickly as possible, it MUST be done justly. Otherwise, who’s to say which people are the known scumbags and which are the people that someone in power just plain doesn’t like?

  5. Just another incompetent government official who can’t do his job, but instead of getting fired and replaced by someone who can he wants more power and funding. Its all those pesky Constitutional rights that are the problem! Let them walk guns across , let them listen to your phone and read every email. Have a drone following every American every second of every day, then they’ll be able to put those pesky murderers away for murder!

    • Well, I dunno about Missouri, but misdemeanor DWI convictions are pretty hard to come by in Texas (excluding pleas, that is). If the guy was getting lots of them, I would hesitate to call him incompetent.

      • I don’t know about Texas, but in Missouri the prosecutor needs to prove calibration of the breathalyzer, the arresting officer, and the test administrator, and he’s done. The only way to beat the charge is either to refuse an alcohol or blood test, then get very, very lucky with your jury, or bring experts to pick a hole in the maintenance or calibration of the lab work. Of course, if you refuse the test, you have a mandatory suspension to deal with.

  6. Drug dealers, gang members, domestic abusers, those are the types of people that are committing most of the most serious shootings in our community and we’d like to make sure we can prosecute them if they’re caught with firearms….”

    Why can’t you prosecute them for being drug dealers, gang members, or domestic abusers?

    • That’s the thing, if they just increased the penalty for those violent crimes they wouldn’t be able to throw the book at a guy who rolls through a stop sign while possessing a CHL. Chasing criminals is scary, gotta pad the numbers by going after the soft crimes with easy multiplier bonuses.

  7. I’m confused. What does he mean the prosecution could not prove a prior violent felony conviction? Is the problem poor record keeping or that he can’t convict someone of a crime based on a crime for which they were never convicted? Doesn’t sound like a problem with the law, more like he needs to do his job better.

    • Again, I think they are afraid their “felon with a gun” enhancement will fail the now-applicable “strict scrutiny” test should the conviction go up on appeal. In Texas, that would mean the sentence, but not the conviction, would be overturned, IIRC. In Mo, I don’t know, could be the whole conviction would be overturned. That’s the only way I can make sense of the prosecutor’s complaint.

      • My understanding is that “felon with a gun” is a crime, not a sentence enhancement. Sentence enhancements sound like a croc to me, I can’t think why your sentence should be increased 5 years because you wear your hair long or whatever your leftislature dislikes, prosecute the crime and be done with it.

        • Well, the prosecutor here is definitely talking about using the possession of a firearm as a way to enhance the stand-alone murder charge into something with a higher sentence range, and complaining that he couldn’t do it in a particular case. I call that an “enhancement”. But like I said, just from the article as posted here it’s pretty confusing.

  8. Lets not forget the words of William Blackstone, and later quoted by Founding Father Benjamin Franklin among others with varying ratios:

    “It is better that ten guilty persons escape than that one innocent suffer”,

    • If you are an incompetent prosecutor with dreams of higher office, that attitude won’t get it.

      • It does not sound as if he is an incompetent prosecutor, merely an overzealous one–which is an all too common affliction among “law and order” prosecutors. It is a common tactic to overcharge to give themselves room to negotiate–down to what the charge should have been initially.

  9. This sounds incredibly lazy.

    I was on a jury with a similar result- prosecutor went for murder 1, but could only prove voluntary manslaughter (it was mutual combat with a self defense claim after one guy pulled a gun). With the gun “add-ons,” the defendant got 21 years. Which was way too many considering what he had done.

  10. Why do I suddenly feel like a ham sandwich?
    (For the uninitiated, a judge once said that a prosecutor could get a grand jury to “indict a ham sandwich” if he (or she) wanted to do so.)

  11. I will remind you good folks that a county prosecutor is nothing but a politician with a gavel…….

    …Combine that with the fact that our court system is fubared and those with money, power and influence get a ‘by.’

    • Umm, you may want to rethink your comment. Prosecutors do not have gavels–judges do. (Actually, gavels are pretty rare out here in California.) And that would be a “bye,” not a “by.” That aside, prosecutors enjoy going after the “privileged.”

  12. “Myers said his office has given up on pursuing felony possession cases in which prosecutors cannot prove the suspect has a previous violent felony conviction.”

    I’m confused. You have a suspect, you put his name in the computer, computer spits out his criminal record. If he has ever been convicted of a violent felony it will be in his record. Where are they getting these prosecutors who can’t prove a guy has previous convictions?

  13. “Myers said his office has given up on pursuing felony possession cases”

    Sorry Todd if your job isn’t as easy as you’d prefer and these silly laws are interfering with your personal aspirations. #CryBaby

    I’m so sick of all this complaining about how police and prosecutors need their jobs easier (at the sake of citizens rights). If you want to put a person (who is supposed to be presumed innocent) in a cage for 25+ year then you job had better be hard and you better prove beyond a reasonable doubt as to why the defendant is guilty.

    Todd Myers is a ladder climber and only wants to peruse slam dunks and avoid the more difficult cases so he can preserve his win/loss record. That’s the problem with the system- its been high-jacked by the personal agendas of the prosecutors in charge. smh

  14. I know a little about prosecuting attorneys in Missouri because I spent a decade being one, both as an assistant and as the elected officeholder. When I moved into private practice, my replacement asked me if I had any words of advice, and I told him that he had to use his common sense in charging people with crimes because the number one reason for acquittals is prosecutorial overcharging. If it’s manslaughter, don’t go for first degree murder, the jury will acquit before they hand out a preposterous sentence. I said, “Consider the circumstances. If a guy spotlights a deer because he’s out of work and trying to feed six kids, you might want to consider a lecture, but jail time hurts the family and strains the State’s resources. If he’s spotlighting and selling meat, throw the book at him. Use your head.” Guy looked at me like I was from Mars and told me that if the legislature had seen fit to criminalize an act, it was his job to prosecute and seek the maximum penalty. All righty, then.

    Over the next four years, he charged and tried a record number of cases and lost every single one. Flushed out of office by the voters. Starved in private practice. Packed up and moved. Sorry truth is that Prosecuting Attorney isn’t a popular office in most jurisdictions, most good trial lawyers don’t want to take the income hit, and in metropolitan areas like Springfield the elected prosecutor doesn’t do the trial work, he hires assistants for that. End result is the public has no control over selecting the guy/gal who gets to throw all this power around, and it’s a whole lot of power.

  15. If you really want to pull the curtain aside and see what would make Prosecutor Myers hard, talk about putting the burden of proof on the defendant instead of the state.

    Every prosecutor has at least a trace of Roland Freisler inside him or her (google if you’ve never heard of Freisler). And some prosecutors have more than a trace.

  16. I’m from Springfield and worked with Ms. Walker when she was shot. She was sweet and was raising a cute little girl. As upset as I am about the conviction, I blame the jury. Regardless of whether or not he could legally possess a firearm doesn’t matter to me in this case. He claims the gun just went off on its own. And these damn jury people don’t know shit about guns and they belive that that’s plausible. I think he should have gotten the death penalty, but I suppose I’m biased.

  17. The problem is the State of Missouri cannot charge a convicted felon with possession of a firearm if they were convicted of a nonviolent felony. I don’t the this prosecutor is anti gun, he just wants to charge felons with crimes that they commit. If your a felon you shouldn’t be able to process a firearm

    • I’m also a MO resident, and IMO the law is as it should be.

      Violent felons are disarmed, non-violent are not.

      With so many damned things that ought not to even be illegal being classified as felonies, I’m amazed that half the country isn’t in jail at any given time.

      I’ll be damned if I’ll help the bastards disarm people who likely shouldn’t have been sent to jail in the first place.

  18. If I lived in Missouri, I would write to this fellow and remind him that his job is tough and the needs of the citizens innocently/wrongfully charged outweigh the aspirations of his career and the states ability to throw the book on those rightfully charged. Our system is balanced towards not charging any innocents and going easy on the guilty than the other way around. Good post, I’ll be keeping an eye on my prosecutors.

  19. Lawyers are so cute when they pretend that they are superior to We The People. (BTW, I work around lawyers every day.) We are supposed to be a country of laws, not a country of men. We are not supposed to have a mountain of laws sitting in reserve to be unevenly enforced based on the whim of a prosecutor who aspires to achieve a record number of convictions.

  20. I know this is the most trivial of details, but it is actually Greene County, Missouri.

    Thanks for publishing this article.

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