SHERIFF, VICTIMS QUESTION PROSECUTOR'S PERFORMANCE

BENTON, Mo. -- As the prosecuting attorney for Scott County, Cristy Baker-Neel is supposed to champion law enforcement and to safeguard the rights of victims. But the county sheriff and members of the families of crime victims say she's been too willing to plead down cases.

Prosecutors and former prosecutors say her disinclination to try homicide cases herself and reliance on special prosecutors are unusual if not a relinquishment of her duties. She complains about an overwhelming caseload but has not yet hired the additional full-time assistant prosecutor the county commission authorized for the office in January.

In the nine years since Baker-Neel became the prosecuting attorney, her office has charged 17 people with first- or second-degree murder. Baker-Neel herself has tried only one of those cases, amounting to a total of five days in court before the defendant accepted a reduced plea.

Eight of the cases have been pleaded down to lesser crimes by Baker-Neel. Five cases have been farmed out to the state attorney general's office, and four have been tried by her assistant prosecuting attorneys. Some of the cases are still pending. In none of the cases did she seek the death penalty.

Little time in courtroom

Baker-Neel's only experience trying a homicide consisted of a two-day proceeding in the 1993 trial of Tonya Strickland that ended in a mistrial. A three-day retrial ended when Strickland pleaded guilty to second-degree murder.

In an interview at her Benton office last week, Baker-Neel said she prefers to let her assistants focus entirely on the time-consuming homicide cases while she handles the day-to-day functions of the office. "A capital case becomes a full-time job to do it properly," she says.

But homicides are tried exactly the same as other cases, she insists.

"It's not that I'm not capable of it," she says. "I've tried my share of cases."

She says Scott County doesn't have the resources to match the state public defender's office when a homicide case is complex. That's why she at times has asked the attorney general for help.

Baker-Neel, who is a part-time prosecutor paid $55,000 annually, has one full-time assistant and one part-time assistant. In January, the Scott County Commission voted to provide the office with another full-time assistant. Baker-Neel has not hired anyone, citing a lack of time.

"I can't do anything for filing cases," she says.

In April, Scott County voters overwhelmingly approved a measure that will make the prosecutor's job full-time in 2003, the year Baker-Neel's term ends. She doesn't know whether she will run for office again. At that time the prosecuting attorney's salary will equal that of an associate judge. Judges currently are paid $90,000 per year and have been voted a raise by the Legislature that has not been established.

In putting the question on the ballot, county commissioners assured voters the salary increase would be accommodated by restructuring the prosecutor's office.

Even with a full-time prosecutor and two full-time assistants, Baker-Neel said she expects the attorney general's prosecutors still would be trying Scott County's murder cases.

Baker-Neel's predecessor, David Dolan, estimates he tried six homicide cases from 1990 to 1992, when he was the county's prosecuting attorney. Dolan, now presiding judge of the circuit court in Scott County, never requested help from the state attorney general to try any cases.

"I thought it was my job," he said.

After working as a public defender and in private practice for five years, Baker-Neel served as an assistant prosecutor for two years under Dolan until he was appointed to the circuit court in 1992. Then-Gov. John Ashcroft appointed her to fill Dolan's term as prosecutor, choosing her over the Democratic Party's recommendation, Frank Marshall. She was elected to the position two years later, defeating the favored Marshall by nearly 800 votes. She ran unopposed in the 1998 election.

Baker-Neel claims the county's caseload wasn't as heavy when Dolan was prosecuting attorney. Her office is handling about 15 new cases per day counting felonies and misdemeanors, she says, about equal to the number in Cape Girardeau County.

Dolan has received complaints about Baker-Neel's handling of cases but said they are typical. "Every prosecutor gets those."

Crime has increased

David Summers, who was Scott County's prosecuting attorney from 1987 to 1990, tried his homicide cases himself but says there weren't many. He said Baker-Neel is dealing with a situation in which violent crimes appear to have increased. He also said it is unfair to second-guess her willingness to plead cases down without examining each case individually.

"You may feel deep in your heart that this person caused the death. But if the evidence doesn't exist or is weak, conviction of a lesser crime serves the cause of justice.

"Who knows what a jury will do with a set of given facts?"

Though his public comments are tempered by the fact that he must work closely with the prosecutor, Sheriff Bill Ferrell is not pleased with Baker-Neel's habit of pleading down homicide cases. "Based on the records of past prosecutors," Ferrell says, "it seems like we do have a lot of them."

Ferrell asked her to plead down one case (see related story) in 1994 and she did so, but he says Baker-Neel isn't as willing to stay with the original charges.

"If consideration was given for pleading a case down, the same consideration should be taken to us not wanting it pleaded down," he said.

"We try to take the very best cases we can to the prosecutor," Ferrell says. "We hate to see them pleaded down."

In two cases last year, Baker-Neel reduced first-degree murder charges to involuntary manslaughter, resulting in a 3-year sentence for William Rogers and a 10-year sentence for Antonio Flye. Baker-Neel also agreed not to file a drug charge against Rogers in exchange for the plea. Rogers provided Flye with the handgun Flye used to shoot and kill Reginald Sales in Sikeston, Mo.

Last year, the daughter of murder victim Willie Mae Vasquez demanded that Baker-Neel remove herself from the case and bring in a special prosecutor. Susan Steel very publicly said she didn't think Baker-Neel was competent to try the case.

Baker-Neel originally filed first-degree murder charges against cousins Gary Biggs and Charles "Scott" Biggs, then amended the charges to second-degree murder after she discovered a typographical error in the original filing. She says the men were charged with second-degree murder all along, which came as a surprise to both Sheriff Ferrell and to Steel.

Baker-Neel called in the attorney general, but says only "because it was to the point where we were going to have to try the case in the paper."

The charges subsequently were refiled as first-degree murder.

She remains the prosecutor of record in the case of Scott Biggs, with special prosecutor Richard Hicks assisting. Hicks is prosecuting Gary Biggs.

Scott County Presiding Commissioner Martin Priggel said the commission does hear complaints about Baker-Neel's bargains. He said her pattern of pleading down cases does bother him. But he refused to evaluate her job performance.

"The people elect them, and we work with them," he said.

Mitigating circumstances

Baker-Neel says she does not charge crimes higher as a bargaining tool but that the individual characteristics of cases sometimes require agreeing to a plea. She pointed to the reduction of first-degree murder charges for Tonya Strickland and Richard Smalley in 1993. She didn't have a good witness.

"It depends on the strength of the case, the circumstances and if there were problems between the victim and the defendant," she said.

Mitigating circumstances can make a plea bargain necessary, but Cape Girardeau Prosecuting Attorney Morley Swingle says it happens rarely in his office. "As a general rule I will file it at the level I believe was committed and hang on like a terrier on somebody's ankle ..." he said.

"The general rule is, if it's a first-degree homicide we file that way and stick with it."

Swingle has never asked for assistance from the attorney general's office. "I believe the public elected me to try the serious crimes of this county," he says. He also enjoys the thrill of being a trial lawyer. "It might be considered arrogance or ego, but I don't feel anybody can do a better job than I can do," he says.

By contrast, Swingle has prosecuted 25 homicide cases and more than 40 defendants since joining the prosecutor's office as an assistant in 1982. He has sought the death penalty five times and has obtained it three of those times. He was first elected to the prosecuting attorney's job in 1986.

He admits that the Cape Girardeau County Commission's generosity in allowing him five assistant prosecutors is a luxury that enables him to devote more time to the big cases. But other first-class counties like Springfield, Jefferson City and Columbia have as many.

Extra heavy caseload

In Baker-Neel's defense, the City of Sikeston generates an amount of crime that makes third-class Scott County's caseload as heavy as a first-class county's.

Butler County also is a third-class county. Prosecuting Attorney Kevin Barbour has asked for help from the state attorney general's office once in the six years he has been in office, including a term in the 1980s and the current one beginning in 1999. The need was based on a conflict.

His job became full time in 1999. But for counties with part-time prosecutors, using the attorney general prosecutors makes sense, Barbour says.

"It can require thousands of dollars for experts, particularly if you're up against a well-heeled defendant. The county budget oftentimes is not set up to spend $10,000 on a case."

The attorney general prosecutors "level the playing field," he said.

But he doesn't anticipate needing those prosecutors in the future. "I've got the lawyers to do it," he said.

Using special prosecutors from the state attorney general's office is not a cost-saving move, Baker-Neel says. "We still have to pay for exhibits and depositions."

State attorney general's special prosecutors have worked on 54 cases throughout the state since the beginning of the year. Spokesman Scott Holste said the requests generally come from smaller counties with limited resources or where conflicts are more common because the prosecutor has been in private practice. "We are always happy to assist," he said. "We do have experienced prosecutors who have handled capital cases across the state."

Her lack of homicide trial experience as a prosecutor is not due to her feelings about the death penalty, Baker-Neel said.

"I don't think it's a deterrent. But I do think there are cases where it needs to be imposed," she said.

But she doesn't like the standard of reasonable doubt when the penalty is death.

"I prefer the evidence goes beyond a reasonable doubt to beyond all doubt," she said.

DISPOSITION OF HOMICIDE CASES IN SCOTT COUNTY Disposition of homicide cases by Scott County prosecuting attorney's office, 1992-2000:

1992

Joshua Kezer

Change of venue to Ste. Genevieve County

Original charges: Murder 1st, armed criminal action

Prosecutor: Kenny Hulshof, special prosecutor for state attorney general

Disposition: Murder 2nd, armed criminal action

Sentence: 30 years on each county to run consecutively.

Ron Shelton

Change of venue to Perry County

Original charges: Murder 1st, armed criminal action

Prosecutor: David Dolan, Scott County prosecuting attorney

Disposition: Found guilty of murder 2nd, armed criminal action.

Sentence: 30 years on first count, 25 years on second to run consecutively.

Milton Lucas Jr.

Original charges: Murder 1st

Prosecutor: David A. Dolan, Scott County prosecuting attorney, replaced by Cristy Baker-Neel in 1993.

Disposition: Amended to murder 2nd in exchange for guilty plea.

Sentence: 20 years

James Washington

Original charges: Murder 2nd

Prosecutor: David Dolan, Scott County prosecuting attorney

Disposition: Amended to voluntary manslaughter in exchange for guilty plea.

Sentence: 15 years

1993

Tonya Strickland

Change of venue to Mississippi County

Original charges: Murder 1st, two counts; armed criminal action

Prosecutor: Cristy Baker-Neel, Scott County prosecuting attorney

Disposition: Pleaded guilty to two counts of murder 2nd; third charge dismissed by state.

Sentence: 30 years on both counts, sentences to run concurrently

Richard Smalley

Change of venue to Mississippi County; change of venue to Pemiscot County

Original charges: Murder 1st, two counts

Prosecutor: Cristy Baker-Neel, Scott County prosecuting attorney

Disposition: Amended to murder 2nd, two counts

Sentence: 20 years on each count to run concurrently

Michael Williams

Change of venue to New Madrid County

Original charges: Murder 2nd, two counts, robbery 1st

Prosecutor: Cristy Baker-Neel, Scott County prosecuting attorney

Disposition: Amended to robbery 1st in exchange for guilty plea

Sentence: Unavailable

Samuel Wade Howard

Original charges: Murder 1st, armed criminal action, theft

Prosecutor: Cristy Baker-Neel, Scott County prosecuting attorney

Disposition: Murder 2nd in exchange for guilty plea

Sentence: 15 years

Corey Turner

Original charges: Murder 1st

Prosecutor: Bob Gowen, assistant prosecuting attorney

Disposition: Not guilty

1995

Steve Lott

Change of venue to Mississippi County

Original charges: Murder 1st, armed criminal action

Prosecutor: Paul Boyd, assistant prosecuting attorney

Disposition: Found guilty of involuntary manslaughter, armed criminal action

Sentence: 5 years on count one, five years on count two to run concurrently.

1998

Michael Bell

Original charges: Murder 2nd, armed criminal action, robbery

Prosecutor: Marvin Teer and Richard Hicks, special prosecutors for state attorney general

Disposition: Not guilty on count one, not guilty on count two, guilty on count three.

Sentence: 15 years

Orlandis Farr

Original charges: Murder 2nd, armed criminal action, robbery

Prosecutor: Marvin Teer and Richard Hicks, special prosecutors for state attorney general

Disposition: Not guilty on count one, not guilty on count two, guilty on count three.

Sentence: 10 years

Darrius Nicholson

Change of venue to Cape Girardeau County

Original charges: Murder 1st, robbery, armed criminal action

Prosecutor: Marvin Teer, special prosecuting attorney for state attorney general

Disposition: Jury trial set for June

Melvin Lancaster

Original charges: Murder 2nd, armed criminal action

Kimberly S. Essary Price, assistant prosecuting attorney

Disposition: Charges amended to voluntary manslaughter and armed criminal action in exchange for guilty plea.

Sentence: 15 years on count one, 5 years on count two.

Richard Yang

Original charges: Murder 1st, armed criminal action

Prosecutor: Paul Boyd, assistant prosecuting attorney

Disposition: Pleaded guilty to murder 2nd, charge of armed criminal action dismissed. Failed to appear in court Feb. 22, 2000. Capias warrant issued.

2000

David Robinson

Original charges: Murder 1st, armed criminal action

Prosecutor: Assigned to state attorney general

Disposition: Pending. Trial set for June 21

William Rogers

Original charges: Murder 1st, armed criminal action.

Prosecutor: Cristy Baker-Neel, Scott County prosecuting attorney

Disposition: Charges amended to involuntary manslaughter with plea of guilty. Baker-Neel also agreed not to file a drug-related charge against Rogers.

Sentence: 3 years

Antonio Flye

Original charges: Murder 1st, armed criminal action

Prosecutor: Cristy Baker-Neel, Scott County prosecuting attorney

Disposition: Charges amended to involuntary manslaughter in exchange for guilty plea.

Sentence: 10 years

Gary Biggs

Change of venue to Pulaski County

Original charges: Murder 1st, amended to murder 2nd due to typographical error in original filing by prosecuting attorney Cristy Baker-Neel. Charges later were refiled as murder 1st by state attorney general.

Prosecutor: Special assistant prosecuting attorney Richard Hicks for state attorney general

Disposition: Pending

Charles "Scott" Biggs

Original charges: Murder 1st, amended to murder 2nd due to typographical error in original filing by prosecuting attorney Cristy Baker-Neel. Charges later were refiled as murder 1st.

Prosecutor: Cristy Baker-Neel, Scott County prosecuting attorney, assisted by special assistant prosecuting attorney Richard Hicks

Disposition: Pending

HOMICIDE CHARGES

First-degree murder with aggravated circumstances

What must be proved: Death caused with presence of deliberation and one of 17 aggravated circumstances

Penalty: Death

First-degree murder

What must be proved: Death caused with presence of deliberation

Penalty: Life imprisonment without parole

Second-degree murder

What must be proved: Death caused but lack of deliberation

Penalty: Life imprisonment or imprisonment for a term of 10-30 years

Voluntary manslaughter

What must be proved: Death caused with mitigating factor of sudden passion

Penalty: Not less than 5 years and not more than 15 years

Involuntary manslaughter

What must be proved: Death caused through recklessness

Penalty: 1-7 years in DOC or up to 12 months in county jail in addition to a fine of up to $5,000