The Missouri Supreme Court in a narrow 4-3 vote upheld the Warren County conviction of a woman sentenced in 2016 for drug possession. However, the Supreme Court judges unanimously agreed that the Warren County Prosecuting Attorney’s Office violated court rules by revealing important evidence just days before trial.The conviction of Danielle A. Zuroweste, 31, of Imperial, was upheld because she failed to request that the trial be postponed after the violation was discovered, according to the Supreme Court opinion.Zuroweste was convicted by a jury in November 2016. Part of the prosecution’s case against her was a recording of a phone call Zuroweste made from the Warren County Jail after her initial arrest in 2015, more than a year prior to the trial.On the recording, Zuroweste can be heard telling a friend things like “I knew it was wrong,” but not explicitly mentioning drugs, court documents state.Former Assistant Prosecuting Attorney Andrew Bailey, who left the prosecutor’s office last year, presented the case at trial. He characterized Zuroweste’s statements in the jail recording as an admission of guilt, according to documents appealing the conviction.Zuroweste’s attorney objected to the use of the jail recording because its existence wasn’t made known to the defense until four days before the trial. The defense had requested to receive any such evidence more than five months beforehand, in September 2016, court records show.After Zuroweste was convicted, she appealed on the grounds that prosecutors had violated the rules of “discovery,” the requirement that relevant evidence be turned over to the defense upon request.Court criticizes prosecutorDuring the original trial, Bailey defended the late notice of the jail recording, saying the prosecutor’s office had only just received it from the Warren County Sheriff’s Department, according to the Supreme Court opinion. Bailey told the trial judge, Presiding Judge Wes Dalton, that the recording was then immediately provided to Zuroweste’s defense attorney, and therefore met the court’s discovery requirement.The Supreme Court rejected that position, with Judge W. Brent Powell writing that the prosecutor’s office had an obligation to locate any relevant recordings from the sheriff’s department as soon as the discovery request was made in September 2016, not wait until the trial in November.“The (prosecutor) waited until the final days leading to trial before giving any thought to locating and disclosing the call,” Powell wrote. “Sitting idly on Zuroweste’s discovery request for six months and then waiting until mere days before trial to locate and disclose ... recorded statements made by Zuroweste is the antithesis of the diligence and good faith requirement of (the discovery rules).”Warren County Prosecuting Attorney Kelly King said court rules expect the prosecutor’s office to know of the existence of any evidence in the possession of law enforcement. However, she said reality doesn’t always match that expectation.“When you’re talking about jail calls, it’s not uncommon for a defendant to make literally hundreds of calls while incarcerated. There is simply no way to listen to every phone call in every case.” King said. “It’s important to note that in this case, we did not hold on to the phone calls and wait to disclose them. They were turned over to the defense as soon as we were made aware of them.”Despite all the Supreme Court judges agreeing that a violation occurred, the court was split on how it should have been remedied.Powell wrote the majority opinion for four judges who concurred that the prosecutor’s violation wasn’t serious enough to exclude the evidence from trial entirely. Another remedy could have been to request a delay of the trial date, Powell said.But because Zuroweste’s attorney did not specifically request such a delay before the trial, and failed to show how a delay would have benefited the defense, the judges ruled that there had not been an error in proceeding with the trial and conviction.DissentIn a three-judge dissent, Judge Laura Stith argued that surprising Zuroweste with a recording to use her own statements against her created a fundamentally unfair situation that should have been addressed by Judge Dalton.Stith criticized the prosecutor’s office for not providing any additional jail call recordings in response to the discovery request, saying such recordings might have been relevant to Zuroweste’s defense.Stith highlighted an assertion from public defender attorneys representing Zuroweste, that the Warren County Prosecutor’s Office on multiple occasions had been late to respond to discovery requests.King later told The Record that claim is without merit, and that evidence is always turned over as soon as prosecutors have it.Bailey at trial reportedly defended any slow disclosures by saying it’s difficult to know which cases are going to trial and which will end in a plea deal, and therefore which cases need to be prioritized in discovering evidence.Stith interpreted that statement as an admission that Bailey knew evidence was being revealed late, in violation of court rules.“If the prosecutor believed a case would be continued or result in a plea deal, he willfully chose to not comply with discovery requests,” Stith wrote. “He argued it was the fault of defense counsels in general for not letting him know in advance whether they would be pleading guilty, so he would know in which cases he had to actually produce discovery and in which he could safely fail to follow the rules.”Stith and the two judges dissenting with her argued that a reversal of Zuroweste’s conviction is warranted because the prosecutor’s violation wasn’t addressed in any way at trial. Not remedying this case tells prosecutors everywhere that if they violate discovery rules, there will be no consequences, Stith said.Court gavel