Lawyer: Drop charge based on Grellner complaint

Just two weeks before he's scheduled to defend Highway Patrol Sgt. Randy Henry in a disciplinary hearing, St. Louis lawyer C. John "Chet" Pleban still hasn't taken Osage County Prosecutor Amanda Grellner's deposition.

So last week, Pleban filed a four-page motion asking the Patrol's Procedural Hearing Board to dismiss Grellner's complaint against Henry - which is part of the reason for the Patrol's "formal charges" against Henry.

"Grellner failed to honor the subpoena and appear for her deposition as scheduled on September 3, 2015," Pleban wrote in his motion. "Permitting the Grellner complaint to proceed under circumstances where (she) refuses to answer questions under oath in a deposition relative to the issues that she has raised in her complaint ... will have the effect of denying Henry due process, equal protection and effective assistance of counsel. ...

"Any charge currently pending against Henry which involves Grellner should be dismissed."

But Grellner's attorney, Jefferson City lawyer Michael Berry, told the News Tribune Friday Grellner hasn't refused to give a deposition - she just can't answer some of the questions Pleban wants to ask unless she's ordered to do so by a judge.

He noted the subpoena sent to Grellner was issued by the Patrol, as part of the disciplinary case against Henry.

"Administrative agencies can issue but not enforce subpoenas," Berry said. "Enforcing subpoenas is the province of judges, as it should be.

"Amanda Grellner never has refused to talk to Mr. Henry's counsel under oath about the facts giving rise to her complaint to the Patrol."

And that is a point of dispute between the attorneys - whether a May 2012 sexual assault in Osage County has anything to do with the Patrol's misconduct accusations against Henry.

Pleban says that assault is a key part of Grellner's complaint.

Berry said Friday: "What did, or did not, happen in connection with 2012 and 2013 events in which Mr. Henry had no involvement whatsoever strikes me as nothing more than a distraction - but if a circuit court judge says Amanda Grellner should testify about that, she will gladly and completely do so."

Because of a lawsuit Berry and Jefferson City attorney Chris Rackers filed Sept. 4 challenging Pleban's subpoenas to Grellner and her son, Garrett Grellner, Presiding Cole County Circuit Judge Pat Joyce had been scheduled to hear arguments on Sept. 22. But Joyce removed herself from that case Friday - so another judge will have to be assigned to the case before a hearing can be set.

The debate between Henry and Grellner began at some point after she was named special prosecutor in the May 31, 2014, drowning at the Lake of the Ozarks of Brandon Ellingson, 20, of Clive, Iowa.

The Patrol never has released its official disciplinary complaint against Henry, but Pleban provided a copy to the News Tribune Friday.

The formal charges against Henry, a 29-year veteran, read: "It is charged that you failed to abide by your oath of office when while on-duty during January 2015, you obtained information pertaining to a 2013 criminal investigation conducted by Cpl. Stacey Mosher, and without confirmation or certainty as to the facts, you later disseminated

the information beyond the proper lines of communication to discredit Osage County Prosecutor Ms. Amanda Grellner, and unduly criticized the Patrol and its employees.

"It is further charged that on February 24, 2015, when questioned by Ms. Grellner about disseminating the information, you were not truthful in your responses, and following this meeting you contacted Mr. Larry Moreau and instructed him to lie about what he knew.

"Your conduct was unbecoming an employee of the Patrol, adversely affected operations, brought discredit upon you as an employee, and interfered with the functions of a prosecuting attorney."

The Patrol's disciplinary action demoted Henry to corporal and transferred him to Truman Lake after his years of patrolling the Lake of the Ozarks.

Pleban has argued for several months that Patrol officials want to silence Henry because he has complained about the agency's handling of the investigation into Ellingson's drowning, which occurred after Trooper Anthony Piercy arrested the Arizona State University student, handcuffed him and was taking him to a Patrol substation for processing.

Ellingson fell from Piercy's boat and drowned after an improperly-attached life vest came off while he was in the water.

Henry has raised questions about the training former Patrol road officers received before being assigned to water duties, after the former state Highway and Water patrols were merged in 2011 - and already has given a deposition for the Ellingson family's federal civil lawsuit against the Patrol.

A Morgan County coroner's inquest last year found no criminal acts caused Ellingson's death, and Grellner initially agreed no charges should be filed.

But last January, Grellner re-opened the Ellingson case and had indicated she might be close to filing a charge when, in March, she removed herself from the case because of a "conflict of interest" she never has explained publicly.

Pleban has argued the conflict involved the Patrol's incomplete investigation into 2012 accusations by an unnamed 14-year-old Linn girl that Grellner's son had raped her - and Grellner's decision last year not to seek criminal charges in the Ellingson case may have been a return favor to the Patrol for that decision.

Mosher's report in that case showed DNA evidence cleared Garrett Grellner of any involvement in the sexual assault.

In his motion to dismiss any disciplinary action based on Grellner's complaint, Pleban noted - before the Patrol lodged its formal disciplinary charges against Henry - the agency's Professional Standards Division interviewed both Amanda and Garret Grellner, and "the rape investigation conducted by the Patrol ... was discussed at length."

He also argued the attorney general's office, representing the Patrol, didn't object during Pleban's deposition of Mosher to questions about the rape investigation.

But in their Sept. 4 suit challenging Pleban's subpoenas, Berry and Rackers argued Amanda Grellner - as Osage County's elected prosecutor - is prohibited by state law from testifying "regarding these uncharged allegations (from 2012)" unless ordered to do so by a judge.

On Friday, Berry also questioned Pleban's subpoena to Amanda Grellner for that Sept. 3 deposition, noting it directed her to "a building that has been vacant and locked down for a year and a half - the Old JC Penney building at 210 E. High St. What does that tell you?"

An online search for the court reporting company doing the deposition shows that address, but Berry said, a subpoena must be specific and correct for a deposition location.