Stoddard County prosecutor withdraws from designer drugs case

BLOOMFIELD, Mo. -- Stoddard County Prosecuting Attorney Russ Oliver was expected to withdraw Thursday from prosecuting a Columbia, Mo., man accused of multiple drug-related felonies stemming from an investigation into the manufacturers of suspected designer drugs.

Oliver's withdrawal was to come a day after an attorney representing Kevin Earl Bay filed a motion seeking to disqualify Oliver, as he is a potential defense witness in the case.

Kansas City, Mo., attorney Michael Gunter filed a motion to disqualify not only Oliver, but his entire office, including any assistant prosecutors under his direction, from prosecuting his 42-year-old client.

Bay is charged with two felonies of delivery of a controlled substance analogue and six felonies of delivery of an imitation controlled substance.

The motion was filed on the day Bay made his first appearance before Associate Circuit Judge Joe Satterfield.

During that appearance Wednesday morning, Oliver said, Bay waived arraignment, and Satterfield set a hearing for 1 p.m. Nov. 10 to hear the defense's motion.

"In their motion, they're saying I was a witness to things in the case, and while I really don't think I saw anything in addition to what any prosecutor sees in a normal case, I want to make sure Kevin Bay receives a fair trial," Oliver said. "And, if he wants me to be a witness, I'm more than happy to accommodate that."

Oliver said he was voluntarily withdrawing as prosecutor in Bay's case, so "I can be available as a witness in this case. We just want to assure he's ensured the fair trial he's entitled to."

By withdrawing, Oliver believes he is making every effort to see that "he will get that fair trial."

Oliver said Scott County Prosecuting Attorney Paul Boyd, who signed the original complaint against Bay, is serving as an assistant prosecutor for the county. "Paul will stay on the case," he said.

Oliver said he has absolute faith in Boyd, as well as his ability to take Bay's case to trial and ensure that justice is done.

In his motion, Gunter cited a letter Oliver sent out notifying businesses in Stoddard County that his office would be changing its official policy and prosecute the sale of herbal incense and "terming these transactions as sales of 'controlled substance analogues' and sales of 'imitation controlled substances.'"

On July 14, Gunter said, Oliver and members of the Stoddard County Sheriff's Department personally handed out this letter to Jack's, RL's Package Plus, J & R Quick Stop and possibly three more businesses.

"On the same date and time as the distribution of (the letter), Oliver personally (led) a raid of three businesses ? and the three unknown businesses," he said.

During this raid, Gunter said, Oliver personally conducted a "search and seizure of these businesses without a warrant and without reasonable suspicion nor probable cause.

"Oliver used intimidation and coercion to further his own personal agenda and removed herbal incense in the inventory of the six aforementioned businesses."

It is alleged, according to Gunter, the inventory seized had been sold to the stores by Bay.

"Oliver was an active participant and witness in these actions," Gunter said.

As of this date, Gunter believes "through careful analysis of the probable cause statement and another affidavit filed, that the inventory seized still has not been tested by an approved laboratory."

Oliver, Gunter said, apparently has attempted to provide immunity to various unknown store owners as five motions for immunity were filed "at the time the initial complaint was filed on July 29" against Bay.

Subsequently, Gunter said, several amended motions for witness immunity and other motions for witness immunity were filed on Aug. 3.

"It should be noted that these motions and amended motions for immunity were filed without criminal charges initiated against any other person other than (Bay)," Gunter said.

After the original warrant was filed, Gunter said, it was withdrawn and a substituted warrant was filed Aug. 26 charging Bay with additional crimes.

Also on Aug. 26, Gunter said, Oliver provided information to obtain a Boone County, Mo., search warrant for Bay's home and business.

Gunter said Oliver requested Boone County authorities not execute the warrant until three days later so "he could personally attend the raid."

At Oliver's request, Gunter said, Boone County officers waited to conduct their searches of Bay's home and business.

"Participating in this raid and seizure was Oliver himself," he said. "He personally went into (Bay's) home and oversaw the raid, viewing and asking for certain items to be seized.

"He was an active participant and witness in this raid as he was in the raids of the six businesses in Stoddard County."

Gunter said he intends to call Oliver as a witness at the preliminary hearing and trial, as well as depose him "because of the investigative role he personally held in this case."

Gunter described Oliver's testimony as not being cumulative as he is the "only witness to discuss the policy change in prosecuting incense sales he felt were legal until his July 12, 2011, letter, as well as his role as an investigator in the raids of the small businesses and (Bay's) home and businesses."

Gunter further described Oliver's testimony as being "material, unobtainable elsewhere and key to the defendant's theory of the case that he was not distributing illegal products."

Gunter also cited an affidavit signed by Jason Dunkel, a legal intern with the prosecutor's office.

In this affidavit, Gunter said, Dunkel indicated "he is an expert in chemistry" who had personally examined the lab reports purportedly of Bay's products seized "in Oliver's raids on July 14, 2011."

In Dunkel's opinion, Gunter said, the seized products are analogues of a banned substance in Missouri.

Dunkel, according to Gunter, actively participated as a witness in this matter and will be called as a defense witness at the preliminary hearing and trial, as well as be deposed.

"Mr. Dunkel is the only state's witness acknowledged who can testify as to the lab reports seized," Gunter said. "Apparently, the state feels that comparing seized lab reports to the product seized establishes probable cause to believe the seized drugs were analogues of controlled substance."

On Aug. 25, Gunter said, Oliver appointed Boyd to be an assistant prosecutor for Stoddard County.

"It is assumed Mr. Boyd is prosecuting this case due to the fact that his job employment status was filed in this case," Gunter said. " ? If (Boyd) is prosecuting (Bay), he may have an interest in the outcome of the case in that his boss, Oliver, and the legal intern, Dunkel, will be witnesses for (Bay) ?"

Gunter said he is seeking to disqualify the entire office, including Boyd, because permitting the office to continue after Oliver's removal would create "the appearance of impropriety and could cause prejudice" to Bay.

Gunter's motion asks the court to disqualify Oliver and his office, as well as to appoint a special prosecutor to his client's case.

Pertinent address:

Columbia, MO

Bloomfield, MO