The Missouri Supreme Court has held that a prosecutor cannot have costs imposed for the appointment of a special master to consider a motion to disqualify

Defendant filed a motion to disqualify the prosecuting attorney, alleging the Taney County prosecutor’s office obtained and disclosed phone calls made by Defendant from the Christian County jail, some of which were apparently placed to his attorneys. The trial court held a hearing on the motion, and evidence was presented that no person from the prosecutor’s office had listened to or reviewed the phone calls between Defendant and his attorneys. The trial court overruled the motion to disqualify but appointed a retired judge as special master with orders to review the jail phone call files, redact all calls between Defendant and his attorneys, and send the redacted electronic phone logs to counsel. The order also directed all future recorded jail calls to be forwarded to the special master.

The prosecutor appealed the assessment of costs

Whether a trial court can assess costs against the county for the special master’s services in a criminal proceeding is a matter of first impression. The prosecuting attorney in this case argues the trial court lacked authority to assess the special master’s fees against the county because no statute or rule of criminal procedure provides for the assessment.

This Court agrees. The trial court lacked authority to order Taney County to pay the costs of the special master. The trial court cites no authority supporting the imposition of those costs beyond asserting that the prosecution’s possession of the jail phone calls prompted the decision to make the appointment.

Footnote

The prosecuting attorney raises two additional arguments for issuance of a writ. First, he claims the trial court lacked authority to appoint a special master in this criminal proceeding. The prosecutor also contends, because the phone system announced all calls were being recorded, any attorney-client privilege was waived, and, therefore, appointment of a special master was inappropriate and unnecessary. Having concluded the trial court lacked authority to assess the special master’s fees, this Court does not reach these alternative arguments for issuance of a writ.

(Mike Frisch)