Swingle appointed special prosecutor in controversial Kennett Wal-Mart case

KENNETT, Mo. -- The Dunklin County prosecuting attorney has voluntarily relinquished his authority to prosecute a controversial criminal case with racial overtones, and Cape Girardeau County Prosecuting Attorney Morley Swingle has been appointed as special prosecutor.

Swingle has been asked to prosecute the case against Heather Ellis.

Ellis, a black woman from Kennett, is charged in connection with an incident at the Kennett Wal-Mart in 2007 during which she was arrested and charged with two counts of the Class C felony assault on a law enforcement officer, one count of the Class B misdemeanor peace disturbance and one count of the Class A misdemeanor resisting arrest.

Heather Ellis is shown alongside her mother, Hester Ellis, outside the Stoddard County Justice Center at Bloomfield last month following her pre-trial hearing in a case that has gained national attention. At right is Ellis' attorney, Timothy Hunsaker from the St. Louis firm of Rosenblum, Schwartz, Rogers and Glass. Also pictured (at left) is an unidentified member of the American Civil Liberties Union. (Noreen Hyslop/The Daily Statesman) [Click to enlarge]

Ellis was charged after a scuffle broke out in a checkout line at the store after she was accused of cutting in line.

Ellis' attorney filed a motion on Nov. 2 requesting Dunklin County Prosecuting Attorney Stephen Sokoloff to recuse himself from the case.

Sokoloff was accused by Ellis' lawyers of "...making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."

On Thursday, after a hearing on Ellis' request for Sokoloff's recusal, the judge presiding over the matter, Joe Satterfield, denied the request, stating there was no legal basis for it.

According to the defense motion Sokoloff replied to a story written on the case by Michael I. Niman of Progressive Populist.

The article, "Felony charge for cutting in line while black in Missouri," tells Ellis' side of the story in which she claims to have been racially targeted by both Wal-Mart employees and Kennett police officers. The story also accuses a police officer of intimidating her family with a Ku Klux Klan (KKK) business card.

Sokoloff wrote a two-page letter in response to the article in which he accused Niman of having done no background research and spoke of his "disregard for objective facts and its reliance on biased and purposefully misleading statements and outright lies."

He also suggested that Niman speak with any of Ellis' three fired attorneys who withdrew following "threats from her family."

Sokoloff went on to state that one officer allegedly received a split lip from a "punch thrown by the 'innocent' Ms. Ellis."

In his defense, Sokoloff said in a written statement, that "over the last several months, the defendant and her supporters have made a concerted attempt, through the traditional media and the internet, to portray me as an overly aggressive and racially biased prosecutor."

"They have distorted the facts and my record to try to divert the public's attention from her (Heather Ellis') conduct," Sokoloff alleged.

The prosecuting attorney also explained that the statements he made regarding the case were contained in a private email to the author of an article about the case that was not public, not intended for publication.

According to Sokoloff, the court found that the statement(s) he made were properly made under the Missouri Supreme Court rules relating to pre-trial publicity as it was made to correct misinformation disseminated by Ellis or others on her behalf.

"Now that the judge has found there was no impropriety on my part, I have considered the matter at some length," Sokoloff said following Satterfield's decision. "I have determined that to remove any possible basis for a claim of bias, either at trial or in any future appeal, and to refocus attention on the actual issues and facts of the case, I will voluntarily recuse myself."

The Dunklin County Prosecutor said he has already filed notice of this voluntary motion through the courts, which records support, and that a request was also made to appoint a special prosecutor to try the case in his absence.

"It is my understanding that the court has appointed an experienced and competent prosecutor to carry the matter forward to trial or other resolution," Sokoloff added.

Court records indicate the attorney filling Sokoloff's shoes in the case will be Morley Swingle, the elected prosecutor of Cape Girardeau County.

"It is my hope and expectation that the case will go forward as scheduled, so that the matter can be fully and finally resolved," Sokoloff said.

Although Satterfield did make a decision to deny Ellis' request to recuse Sokoloff from the case, another motion filed by the defendant remains undecided upon by the judge, according to court records. That motion is a response to the state's motion to withhold or allow evidence, which was filed last month.

Among the requests made by the state are that the following not be allowed as evidence: the general reputation of the victim (the law enforcement officers alleging assault), dishonesty of witnesses, evidence of other complaints or accusations against victims relating to previous arrests, any evidence of matters claimed to have arisen at the police station after the arrest, evidence of the purpose of Ellis' trip to Wal-Mart, character evidence of defendant except by general reputation in the community, testimony on the impact of the incident on the defendant and asks to strike the testimony of three witnesses who have reportedly been uncooperative.

The order also requests that Ellis refrain from "wearing or displaying any religious symbols or religion-specific clothing or any testimony relating to the defendant's faith, religious beliefs or training."

Ellis took issue with a number of the requests.

A response to the state's request regarding religious attire states that Ellis "objects to any attempts by the state to restrict the religious attire of members of the public who may attend the trial. Those members have a constitutional right to freedom of religion and expression that should not be restricted by the state. A member of the public attending the trial should be at liberty to wear appropriate religious garments if they choose."

The paragraph goes on to state that Ellis should be permitted to address religion and religious training during voir dire, jury selection, to ensure a fair jury is selected.

Satterfield will have to make a public ruling on those specific motions before it is determined whose arguments will stand.

The Ellis trial is currently scheduled to be heard by a jury in a Dunklin County courtroom before Satterfield at 9 a.m., on Nov. 18.

Daily Dunklin Democrat managing editor Deanna Coronado contributed to this report.