Families upset with release of information
January 21, 2021
JACKSON — Several families are demanding accountability after they say they were victims of criminal misconduct at the hands of the Teton County Prosecuting Attorney’s Office.
In the last few months, various complaints about the county attorney’s office breaking the state’s restricted disclosure law have been filed with the Wyoming State Bar, Teton County Sheriff’s Office, Jackson Police Department and Wyoming Division of Criminal Investigation.
“The Teton County Attorney’s Office and anyone else working for the government who violated this law must be held accountable for their actions and prevented from illegally and unnecessarily damaging the reputations of people who are falsely accused of crimes in the future,” attorneys Devon Petersen and Tom Fleener wrote in an email to the News&Guide.
Fleener and Petersen represent two clients with similar complaints, which came not long after former Jackson Mayor Pete Muldoon made a similar protest against the sheriff’s office and county attorney for releasing his name publicly in an investigation report for an alleged crime that was never charged.
Muldoon also filed a formal complaint with the state bar against Prosecutor Erin Weisman, saying his name should have been especially protected under the restricted disclosure law since he was never charged with a crime.
Weisman did not respond to requests for comment for this article, but in October she told the News&Guide her interpretation of the statute allowed the release of Muldoon’s name in a public records request.
“The release of the name of an alleged actor is not released prior to the filing of an information or indictment,” Weisman said. “In this case, prosecution was declined, and at that point the records may be released.”
Weisman’s attorney John Bowers backed up that interpretation in a letter sent to the News&Guide by email Saturday.
“If criminal charges have not been filed against an individual, there is no jurisdiction by a court over the criminal charges,” Bowers said. “For there to be jurisdiction, a formal information and criminal charges must be pending before a court.”
That interpretation of the statute is contrary to the reason the law exists, Muldoon said. A response to a records request Muldoon filed with the Wyoming Attorney General’s Office sided with Muldoon.
Muldoon’s concern is that the county attorney’s interpretation opens victims to the same exposure.
“Ms. Weisman’s statement erroneously claims that a rape victim who reports a crime will lose all privacy rights under 6.2.319 if that crime is not prosecuted,” Muldoon said in a complaint to the Wyoming State Bar. “That sends a chilling message to future victims, and will discourage victims from reporting crimes.”
The three complaints obtained by the News&Guide vary slightly and stem from different cases.
But the accusations are all the same: Teton County Attorney’s Office broke state law by prematurely releasing the names of the accused in alleged sex crimes.
“Wyoming law prohibits the release of names or any other information reasonably likely to disclose the identities of people accused of certain crimes unless and until charges are filed in District Court,” attorneys Petersen and Fleener wrote in their email to the News&Guide. “The Teton County Attorney’s Office violated this law in two of our cases, one involving Mike Crothers and another involving a minor.”
The restricted disclosure law was first put in place years ago as a gatekeeping tool so rape defendants could be granted anonymity until probable cause was found for an indictment, said attorney Bruce Moats, a First Amendment expert who occasionally represents the News&Guide.
Some have tried to challenge the law, arguing that if only sex assault suspects are afforded anonymity at preliminary hearings the statute further perpetuates a misperception that most women lie about being raped.
It’s still on the books, though there are no known cases in which a public official has been prosecuted for violating it.
Most seem to be seen as accidental violations, which happen from time to time. An attorney or a clerk will forget to redact the defendant’s name from the filing of an information report in a sexual assault case before releasing it. Those have been called clerical errors.
Violations also happen in open court, when an attorney or clerk accidentally says the defendant’s name out loud, rather than his or her initials. Initials are allowed to be released, per the statute.
An intentional release of a defendant’s name is a misdemeanor, according to the law.
“I haven’t heard of a case where there was even a contemplation of charging someone for it,” Moats said.
But that’s what Mike Crothers wants.
A complaint filed in December by Crothers’ wife with the Wyoming State Bar’s Board of Professional Responsibility against Prosecutor Weisman said it’s the justice her family deserves.
But the family’s grievances lie mostly with former Chief Deputy Prosecutor Clark Allan.
“Erin Weisman failed to adequately supervise Deputy County Attorney Clark Allan,” the complaint states. “Her failure to supervise resulted in Mr. Allan committing multiple unethical acts, criminal acts and civil rights violations — which caused grave damage to my husband and my family’s rights and reputation.”
Allan left the office in December to serve as a circuit court judge in Converse County.
“Mr. Allan charged my husband with sexual battery, a crime for which he knew there was no evidence to support, nor did any alleged victims even claim that sexual battery took place,” she wrote in her complaint with the state bar. “Mr. Allan made numerous statements, both on and off the record … These statements violated criminal statute 6-2-319, were reckless, untrue and intended to taint the jury and embarrass our family in the very small town where we lived.”
Crothers was found guilty of unlawful touching and permitting an underage party; he was acquitted of sexual battery.
“Ms. Weisman and Mr. Allan illegally released my husband’s name publicly, informing all to hear that my husband was charged with sexual battery,” she said.
Her argument is unusual, since the restricted disclosure statute is usually applied only to pending felony charges. Those are the only cases that ever make it to district court.
But she said the language of the law isn’t clear enough to exclude misdemeanors.
“The statute does not carve out any exceptions for the misdemeanor crimes of sexual battery,” she wrote. “Because this case never made it to district court, there shouldn’t have been any disclosure.”
Moats argues that if courts start applying the restricted disclosure law to misdemeanors then sexual battery convictions would remain confidential, which he sees as a dangerous precedent.
“To me you can’t fit sexual battery under this because otherwise you can’t ever release anything,” he said. “If the person gets found guilty then it would be secret — because even that is prior to indictment.”
Petersen and Fleener’s other client, a teen who was charged with a sexual assault that’s since been dismissed, has a slightly different complaint.
His parents wrote letters to the Teton County Sheriff’s Office and Jackson Police Department asking them to pursue a criminal investigation because the county attorney “willfully, intentionally, and recklessly” released their son’s identifying information before the case was bound over to district court.
“Information documents filed contained his middle name, his initials, his complete street address, his year of birth and that he has a younger brother,” their letter states. “There is only one person in the community who fits that description. These violations are clear and part of the public record.”
They went on to say that the actions of attorneys and legal clerks in Teton County ruined their son’s reputation.
“W.S. 6-2-319 exists to protect citizens from disclosure of their information at early stages of the case,” they said. “[Redacted] was [redacted] when the [Teton County Attorney’s Office] blatantly violated the law numerous times. His life has been forever altered. No amount of punishment for the TCAO can change that. You can, however, through a proper investigation and the filing of charges, ensure that W.S. 6-2-319 will not be ignored or taken lightly by the TCAO. This statute must be enforced.”
Teton County Sheriff Matt Carr said his office cannot investigate its own attorney. Not only is it a conflict of interest, he said, he lacks the authority.
“The only person who has authority over county attorneys is the AG’s office,” Carr said.
So his office sent the request for investigation to the Wyoming Division of Criminal Investigation for consideration.
In late December state investigators said no.
“DCI verbally declined to pursue either of those investigations,” Carr said.
Reached by phone several times for this article, agents at DCI declined to comment on the record.
When asked how decisions are made at the state level when a criminal complaint is made about a county prosecutor, Deputy Attorney General Jenny Craig also declined to comment — leaving questions unanswered about who investigates claims against publicly elected prosecutors if DCI won’t.
According to public records, two county attorneys have been prosecuted by the Wyoming Attorney General — Richard Bohling in Albany County for misuse of public money and Kevin Meenan in Natrona County for forgery and identity theft.
A jury found Bohling guilty in 2015 after the Wyoming Attorney General’s Office presented evidence that he used county money to buy camera equipment for personal use. His felony convictions were overturned a few years later.
Meenan, who was a district attorney in Casper, pleaded guilty to two felonies and a misdemeanor in 2003 in a fraud case involving his stepchildren’s finances, according to reporting by the Casper Star Tribune. He was later pardoned.
Disbarments and prosecutions of local prosecutors are rare, though the Wyoming State Bar fields several complaints about elected attorneys every year.
They also receives a fair number of complaints about family law lawyers and public defenders, Wyoming State Bar Counsel Mark Gifford said.
“Only about 10% we receive end up in a disciplinary order,” Gifford said. “We try to call each complaint as we see it.”
Of the 170 or so complaints the bar receives every year, only one or two end in disbarments, Gifford said, for the “really serious stuff.”
Gifford couldn’t comment on the ongoing investigations into the complaints he’s received about the Teton County and Prosecuting Attorney’s Office.
The process is confidential, he said. And the outcome could be, too.
“I have the option of private reprimand,” he said. “That is issued by a review and oversight committee or they can do a diversion contract where maybe they refund part of a court fee or take other corrective action.”
Muldoon, who left the town’s mayoral office this month, said he’d like to see action taken that will reinstate the public’s trust in the county attorney.
Muldoon started exploring his legal options in October after the Teton County Sheriff’s Office released 2018 reports in which a woman accused him of sexual assault.
Allan, the former chief deputy prosecutor, found that no crime had occurred and declined to file charges.
When a records request was filed last fall regarding investigations into Muldoon, the sheriff’s office, with the guidance of the county attorney’s office, released two police reports in which it redacted the name of the accuser but didn’t redact Muldoon’s name.
“The sheriff’s department clearly broke the law in releasing these false allegations,” Muldoon told the News&Guide on Jan. 13, “and the county attorney gave a post hoc rationalization to try and cover it up, and I think she must be held accountable for that.”
Since the release of the records, Muldoon made similar requests for the same documents to Teton County and the Attorney General.
He received a response from the Attorney General’s office last month that contradicts Weisman’s interpretation of the restricted disclosure law.
“The information redacted in that report is confidential under the Wyoming Public Records Act … and contrary to W.S. 6-2-319,” the response to Muldoon stated. “Because it is ambiguous, and out of an abundance of caution, our office’s position is to not release that information regardless of whether an information or indictment is filed. Accordingly, we will not provide the unredacted report.”
Muldoon received a similar response from the county, further convincing Muldoon that the release of his name broke the law.
Moats said because of the recent differing interpretations of the restricted disclosure law, it would be useful to get a judge to set the record straight.
But it might not land on a judge’s desk unless there is a records appeal or a civil lawsuit.
“I think the only way to really resolve this is to have the court rule on it,” Moats said.
Bowers, Weisman’s attorney, said clarification is needed, but pointed to a different branch of government.
“I think this would be a good statute for the Legislature to review and clarify,” he stated in his letter.
While Muldoon wonders if his name was released to thwart his campaign for a seat on the Jackson Town Council, he said he worries more about the future victims of sex crimes in Teton County.
“This interpretation would dissuade even the most courageous victim from seeking justice, and yet this is the interpretation of W.S. 6-2-319 that Ms. Weisman has conveyed to the public as the County Attorney,” he said in a letter to the state bar. “It is wrong, it is indefensible, it is harmful to the public, it is prejudicial to the administration of justice, and her continued defense of it is astonishing and must be sanctioned in order for the public to regain some measure of confidence in the justice system.”