Kansas disciplinary office gives problem prosecutor Terra Morehead a pass | Opinion

Four years after the federal public defender for Kansas, Melody Brannon, filed quite a damning disciplinary complaint against problem prosecutor Terra Morehead — a serial offender with a long rap sheet of misconduct findings — Brannon finally got a letter back last week from the Kansas Office of the Disciplinary Administrator. That’s the office that in theory sanctions prosecutors when need be.

Because it’s also the office that in practice almost never does any such thing, it found that Morehead was in the clear again: “After carefully reviewing the material, and deliberating over the facts and rules,” said the June 23 letter, “the review committee found that probable cause does not exist and that there is not sufficient evidence to prove a violation of the Kansas Rules of Professional Conduct. The review committee” — made up of other prosecutors, as always — “has directed this office to notify you of the dismissal of this complaint.”

The complaint included the fact that between 2013 and 2016, Morehead and others requested recordings of inmate calls from a Kansas pretrial detention center without excluding attorney phone numbers from their requests.

As a result, she heard attorney-client calls in at least nine cases, yet never reported this to either defense counsel or the district court. After the scandal made news in 2016, a federal judge held the office in contempt. More than 100 prisoners have sought relief because of the violations, and an investigation into the prosecutors’ conduct has led to more than 10 sentences being reduced or vacated.

But for Morehead, there never are any consequences. “It’s taken four years to get a letter saying she didn’t do anything,” Brannon told me.

‘How does she still have a law license?’

Even among those prosecutors known for doing whatever it takes to win, Morehead is a lifetime standout: “How does she still have a law license? Our office fields this question about Terra Morehead on a regular basis,” says Brannon’s complaint. “She is a career prosecutor who has abused her power for decades” and “repeatedly directed her abuse towards the people of Wyandotte County, one of the poorest and most vulnerable communities in Kansas” while she worked in the DA’s office there. “U.S. Attorney’s Office management — well aware of her history —occasionally responds to her wrongdoing by limiting her reach within the office. But the dust eventually settles,” and she goes right back to doing what she does.

Again, that’s because she pays no price for cheating. And that’s because, while the state’s disciplinary office for lawyers handles certain kinds of violations very well — steal from your client, or have sex with him, and that violation will be punished — the kind of abuses that Morehead is known for will not.

Like what? In 1994, Morehead prosecuted Lamonte McIntyre for a double murder in Kansas City, Kansas, that she had to have known he did not commit. After 23 years in prison, McIntyre was exonerated, in part on evidence that showed that Morehead had coerced a witness, knowingly presented false testimony and suppressed exculpatory evidence—all in collusion with now-indicted former police detective Roger Golubski. She’d also had a relationship with the judge who presided over McIntyre’s trial, and yet had neither recused herself nor disclosed this to the defense.

In 2000, Morehead used 10 of 12 peremptory strikes to prevent Black people from serving on the jury in a state murder case. The 10th Circuit later found that “at least one peremptory challenge was substantially motivated by race.”

In 2003, DEA Agent Timothy McCue sideswiped a car, then he chased down its driver, Barron Bowling, beat and arrested him. Bowling was acquitted and sued, eventually winning damages for assault, battery, and excessive use of force. KCKPD Detective Max Seifert resisted pressure to cover up McCue’s conduct; he investigated and documented the incident, and later testified at Bowling’s criminal trial. After Bowling’s acquittal, Morehead began falsely telling others in the law enforcement community that Seifert had botched investigations and was not credible. In police training sessions, she even used Seifert as an example of a problematic officer whose credibility “problem” would have to be disclosed to defense counsel in any criminal case.

Seeks harshest mandatory minimum penalty

In 2007, as a federal prosecutor, Morehead adopted one unbreakable rule: If a person charged with a federal crime requested pretrial release, she would seek the harshest possible statutory mandatory minimum penalty. Even if the district court ruled that the person was entitled to release, Morehead would not withdraw the notice.

In 2016, on the morning Gregory Orozco was to go on trial for drug trafficking, Morehead filed to double his sentencing exposure, and for the first time disclosed exculpatory evidence that should have been made available to the defense team much earlier.

She downplayed the importance of this as a “lack of candor” that the district court later described as “quite troubling.” During Orozco’s trial, Morehead let a defense witness know, through his lawyer, that his testimony would have adverse consequences, so the witness decided not to testify.

The district court later concluded that Morehead had substantially interfered with Orozco’s Sixth Amendment right to present a defense. It vacated his conviction and dismissed the indictment with prejudice. The 10th Circuit affirmed the district court’s finding, though it disagreed that dismissal with prejudice was the appropriate remedy.

In 2021, U.S. District Court Judge Daniel Crabtree dramatically reduced the prison sentence of a man convicted on drug and counterfeiting charges because Morehead had not been forthcoming with evidence the defense had a right to during her prosecution of Jay Giannukos.

“She failed in her duty to do justice and that misconduct provides the reason for the substantial variance reflected in the custody component of Mr. Giannukos’ sentence,” Crabtree said. He reduced Giannukos’ sentence from 20 years to nine.

State unconcerned about wrongful convictions

So how is it that this pattern of behavior — and this is sampling rather than a complete list — has never been punished?

Mike Warner, a state and federal prosecutor in Kansas and Missouri for more than 30 years, and someone who has worked with Morehead, told me that’s because the “federal investigation of prosecutor malfeasance has always been historically weak” and that “state authorities seemingly care more about office management and financial improprieties than prosecutors who wrongfully convict people and sentence them to long prison terms.” So even when a prosecutor “wrongly convicts someone of murder or sends dozens of defendants to long prison terms tainted by Sixth Amendment violations, not much really happens.”

In part, he said, that’s because “state attorney disciplinary offices are commonly staffed by individuals with either a prosecutorial or law enforcement background. This makes it easier, I think, for them to excuse or rationalize prosecutorial misconduct.”

Two other complaints against Morehead are still going forward, one of them involving the Orozco case. But Morehead has asked for and been granted a delay, and as Brannon told me, “we’ll all be dead and gone before anything happens.”

The real problem is that the system is set up in a way that treats the most powerful people in it, prosecutors, as if they were the most vulnerable. As long as that’s the case, the damage caused by this design flaw — a classic “feature, not a bug” — can only continue, mostly unacknowledged and reliably unaddressed.