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How The Clayton Attorney Who Cursed Out A Judge Avoided Jail Time

From left, attorneys Connie McFarland-Butler, Jennifer Joyce and Nicole Gorovsky
Evie Hemphill
St. Louis Public Radio
From left, Jennifer Joyce, Connie McFarland-Butler and Nicole Gorovsky participated in the Legal Roundtable.

In July, Clayton attorney Eugene Fahrenkrog Jr. earned national headlines for doing the one thing all legal experts agree you should never, ever do: He allegedly cursed out a judge during a hearing — and was ordered to spend a week in jail for it.

But journalists covering the apparent shocking breach of courtroom etiquette missed a key detail: Fahrenkrog wasn’t actually in the courtroom for the motion hearing, but rather connected to the judge via Webex. And as Fahrenkrog’s attorney would soon outline in his appeal, the hearing had ended and Fahrenkrog thought he’d disconnected when he uttered the expletive in question. It was only when he heard St. Louis County Circuit Court Judge John Borbonus ask “What did you say?” that Fahrenkrog realized he was still on the call.

For attorneys on St. Louis on the Air’s Legal Roundtable, that raises questions.

“The court does have the power to find someone in criminal contempt of court if there is disorderly conduct committed ‘during its session, which impairs the respect due to authority,’” noted attorney Connie McFarland-Butler of the Law Office of Connie McFarland-Butler. “So I guess the question becomes, was it during the session when the F-bomb was dropped?”

Nicole Gorovsky, an attorney at Gorovsky Law, noted another issue with Borbonus’ order: The judge was acting unilaterally.

“There is some case law out there that says that if you are going to be held in criminal contempt because you in essence pissed off a particular judge, that maybe you should be entitled to a hearing in front of another judge,” she noted. “I think there is something to be said for that.”

Fahrenkrog quickly apologized to Borbonus, both on the call and in a subsequent email. He also hired an attorney to push back on the warrant ordering his arrest and detainment.

In an appeal filed July 20, attorney Michael Gross argued that Borbonus overstepped by immediately issuing the warrant without giving Fahrenkrog any chance to answer for it. The court issued a preliminary order in Fahrenkrog’s favor. Court records show the case was sent to mediation; Borbonus later vacated his contempt order.

With that, Fahrenkrog faces no further threat of sanctions in the matter.

Former St. Louis Circuit Attorney Jennifer Joyce, who is now a principal with the Vera Causa Group, said that seems about right.

“This guy has been practicing law since 1971. I've never heard his name in connection with anything like this ever before,” she said. “Who amongst us hasn't had that thought just lightly flit across our head when we're frustrated by a judge? I think the guy thought that he was off the air. I thought seven days in jail was a lot, and I'm glad it looks like it's resolving without that.”

The Legal Roundtable weighs in
Listen as panelists Jennifer Joyce, Nicole Gorovsky and Connie McFarland-Butler discuss legal matters in the news

The Legal Roundtable panelists also dug into ongoing problems at the St. Louis Circuit Attorney’s Office. The office had requested special prosecutors for some high-profile cases, citing a conflict of interest. Yesterday, the St. Louis Post-Dispatch reported, the office acknowledged the real issue was that high staff turnover had led to a big backlog.

Said Joyce: “Justice is a lot about dotting i’s and crossing t’s. And it's not glamorous, and you're not going to have it on an episode of ‘Law and Order’ — somebody reviewing files to make sure that they're done properly, that the indictments are proper and stuff like that. But it takes management to run a prosecutor's office effectively, and particularly an office of that size. ... From what I see, there is a breakdown in the management and the oversight of the day-to-day functions of that office.”

Joyce also explained that the law only allows prosecutors to ask for special prosecutors in cases where there is a conflict of interest, which is likely why the office cited that when asking for help.

Even so, she said: “Well, it's not a conflict. So that was basically something filed with the court that wasn't true. That is very troubling and concerning.”

The three attorneys also discussed Attorney General Eric Schmitt’s “reverse class-action” lawsuit attempting to strike down mask mandates for Missouri schoolchildren, a lawsuit against anti-racism training in the Springfield Public Schools, and the College of the Ozarks’ lawsuit against the Biden administration over its directives on gender identity in housing.

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.

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Sarah Fenske served as host of St. Louis on the Air from July 2019 until June 2022. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.