OVERLAND PARK, Kan. — In a follow-up to a story KSHB 41 has been following for five years, the district attorney who handled the shooting death of an Overland Park teenager is now under investigation.
Johnson County District Attorney Steve Howe is being investigated by the Office of the Disciplinary Administrator.
That watchdog agency is an arm of the Kansas Supreme Court, and its primary role is to investigate allegations of lawyer misconduct.
In this case, the ODA is investigating whether Howe engaged in unethical conduct in his handling of the police involved shooting of John Albers.
Recap of case
It's been five years since John Albers was shot and killed by an Overland Park Police Officer.
The teen had been experiencing a mental health crisis, prompting a welfare check at his home.
But, before police could announce themselves to Albers, he began backing his parents' minivan out of the garage.
That's when Officer Clayton Jennison unloaded 13 shots into the vehicle, striking and killing the 17-year-old.
Following the shooting, Howe declined to file criminal charges against Jennison.
“He felt like he was the one who was going to get run over, that the vehicle was going to strike him and believed that based on the evidence that we have available, that was a reasonable belief and under Kansas law that will not face criminal charges,” Howe shared in a Feb. 2018 press conference.
Contradicting statements
But, Albers' Mom, Sheila, points to a statement made by the Department of Justice following their investigation into the case, calling it a contradiction.
"When you line those two statements up, side-by-side, the facts contradict themselves," Sheila Albers said. "So, I decided to file a complaint with what they call the Office of the Disciplinary Administrator."
Four months after filing a complaint with the ODA, Sheila Albers received a response from that group notifying her they would be conducting a formal investigation.
"In the professional standards for attorneys in the state of Kansas, there is a standard saying that they have to be truthful and accurate in any statements that they make regarding a case that they’re working on, and I feel that Steve Howell misled the public," Sheila Albers said.
Specifically, she points to two documents.
One, the press release issued by Howe's office in 2018, that says the officer "was standing directly behind the minivan, which accelerated toward the officer" when he fired the first two shots.
Meanwhile, the statement released last fall by the Department of Justice states "John Albers began to slowly back the minivan out of the garage," adding that the officer "stepped out of the minivan's path when he opened fire."
"I mean those are very different stories," Sheila Albers said.
The investigation: How common is this, and what are the possible outcomes?
But are those differences enough to be deemed unethical conduct?
That's a question KSHB 41 posed to Steve Leben, a UMKC Law School professor, and a former judge who now teaches legal ethics.
"Well, I don’t know enough about the specific facts of this case," Leben said. "What I can say is that legal ethics rules prohibit attorneys from engaging in dishonest conduct or misrepresentation, and that’s true whether you’re in your private business dealings or in your public role as an attorney. So, if an attorney were to make public statements that were intentionally false, that would be a violation of the rules of professional conduct for attorneys."
We also asked him how often district attorneys find themselves at the center of these types of investigations.
"There have been other cases in Kansas in which either district attorneys or assistant district attorneys were investigated for complaints," Leben said. "And there was an attorney in Shawnee County, an assistant district attorney, who was disbarred in the last couple of years. So, it’s not unheard of. On the other hand, most of the time the conduct does not rise to a level that suggests either disbarment or an indefinite suspension, at least in the cases that have been pursued in Kansas recently."
We posed the same questions to Steve McAllister, the former U.S. Attorney who referred the Albers' case to the Department of Justice.
"It is not uncommon for people to complain about DAs or prosecutors," McAllister said. "But it is uncommon for ODA to open an investigation, especially when the situation did not involve actually charging or convicting someone."
As for any disciplinary action, should the ODA determine an attorney's behavior is unethical, that would be up to the Kansas Supreme Court.
Leben says it can range from an informal admonition, to probation, to disbarment.
KSHB 41 reached out to Howe, who declined to comment given the pending investigation.
Likewise, the city of Overland Park said it has no comment.
At last check, an email asking the Overland Park Police Department for comment remained unanswered.
Office of the Disciplinary Administrator's response
KSHB 41 News reached to the ODA about this case.
"Whether or not a complaint has been filed against an attorney is not a matter of public record," the office said in part. "The Office of the Disciplinary Administrator is unable to provide any information about whether a complaint has been received and whether a complaint is being investigated."
They also explained, "Docketed disciplinary complaints are investigated by either full-time in-house investigators employed by the disciplinary administrator’s office or attorneys who are members of an ethics and grievance committee."
As for the procedure the ODA follows, they shared this with us:
Following the receipt of an investigative report, the disciplinary administrator prepares a report, under Rule 209, to the Review Committee of the Kansas Board for Discipline of Attorneys. The Review Committee reviews the complaint, the attorney response or responses, the investigative report, and perhaps attachments to the complaint, attorney responses, and investigative report. After the review, the Review Committee directs one of the following: “(1) dismissal of the docketed complaint for lack of probable cause of a violation; (2) dismissal of the docketed complaint for lack of clear and convincing evidence of a violation, with or without a letter of caution; (3) referral of the respondent to the attorney diversion program; (4) informal admonition of the respondent; or (5) a hearing on a formal complaint before a hearing panel.” Only informal admonitions and discipline imposed by the Supreme Court under Rule 225 (types of discipline) are matters of public record. When the Supreme Court imposes discipline under Rule 225, the Supreme Court issues a written opinion that is published in the Kansas Reports and is made available on the Supreme Court’s website.
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