Category Archives: Prosecutorial misconduct ethics

California Bar files disciplinary charges against former Los Angeles City Attorney alleging prosecutorial misconduct

Hello everyone and welcome to this Ethics Alert which will discuss the recently filed disciplinary charges filed by the California Bar against former a Los Angeles City Attorney alleging prosecutorial misconduct during a death penalty case that he handled when he was a Los Angeles County deputy district attorney more than 30 years ago.  The case is State Bar of California v. Carmen Anthony Trutanich, Case No. 16-O-12803 (filed February 9, 2017) and is here:  http://members.calbar.ca.gov/courtDocs/16-O-12803.pdf

The lawyer served as the elected Los Angeles City Attorney from 2009-2013.  He was a deputy district attorney for Los Angeles County prior to that time and, while he was a deputy district attorney, he is alleged to have failed to provide exculpatory information in responding to discovery by withholding the true name and address of a witness from the defendant in the People v. Barry Glenn Williams.  He is also alleged to have failed to correct a police detective’s false testimony regarding the detective’s investigation in 1985 and a murder witness’ false testimony regarding the name a person who was driving a vehicle during a crime in 1986.

A federal judge cited prosecutorial misconduct in overturning the defendant’s murder conviction and death sentence in 2016, which resulted in a review by the California State Bar’s Office of Chief Trial Counsel.  The California Bar is notified when a criminal conviction is reversed because of alleged attorney misconduct.

The lawyer will have an opportunity to respond to the charges, which must be proven by the California Bar and approved by the California Supreme Court before any discipline can be imposed.

Bottom line: This lawyer will be defending very serious allegations that allegedly occurred over 3 decades ago.   As you may already know, criminal prosecutors are held to higher ethics standards and have special responsibilities to seek justice and disclose exculpatory information.  If these allegations are true, this prosecutor not only failed to provide exculpatory information, but also actively participated in providing false information and testimony in the case.  Stay tuned…

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Prosecutor misconduct discipline, Prosecutorial misconduct ethics

Ohio Supreme Court imposes stayed suspension on former criminal prosecutor who used fictitious Facebook account to contact alibi witnesses

Hello and welcome to this Ethics Alert blog which will discuss the recent Ohio Supreme Court opinion imposing a stayed suspension on an ex-prosecutor who created a fictitious Facebook account to contact alibi witnesses in a criminal case that he was prosecuting.  The case is Disciplinary Counsel v. Brockler, Slip Opinion No. 2016-Ohio-657 (February 26, 2016.  The opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-657.pdf.

According to the opinion, the lawyer doubted the alibi witnesses’ stories and:

“Recalling a Facebook ruse he had used in a prior case, Brockler planned to create a fictitious Facebook identity to contact Mossor. He attempted to obtain assistance from several Cleveland police detectives and the chief investigator in the prosecutor’s office, but they were not available. Believing that time was of the essence, Brockler decided to proceed with the Facebook ruse on his own approximately one hour after he heard the recording of Mossor and Dunn’s conversation. He created a Facebook account using the pseudonym “Taisha Little, a photograph of an African-American female that he downloaded from the Internet, and information that he gleaned from Dunn’s jailhouse telephone calls. He also added pictures, group affiliations, and ‘friends’ he selected based on Dunn’s telephone calls and Facebook page. After creating the Facebook alias, he contacted the alibi witnesses, told them he was romantically involved with the defendant, and discussed the alibi as if it were false.”

The lawyer testified that he made copies of the communications and placed them in a file before deleting the Facebook account. He stated that he intended to give copies to the defense; however, he did not provide them and copies were never found in the prosecutor’s file.  The lawyer told the prosecutor who was taking over the case while he was on a medical leave that he might become a witness since the alibi witnesses said they would not support the defendant’s alibi.  He did not tell the new prosecutor how he obtained that information.

A police detective later discovered the Facebook communications and provided them to the new prosecutor, who provided them to the defense. The case was transferred to the Ohio Attorney General’s office for prosecution and the lawyer was terminated.  Although the lawyer admitted that his actions violated the Bar rules prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation, he argued that an exception should be made for “prosecutorial investigation deception.”  The Ohio Board of Professional Conduct rejected that argument, and the Ohio Supreme Court agreed with the Board’s conclusion.

The opinion said the lawyer’s conduct was “an isolated incident in an otherwise notable legal career” and imposed a one year stayed suspension which will remain stayed unless the lawyer engages in further misconduct.  A dissenting justice stated: “I cannot implicitly condone the imposition of a negligible sanctions for his egregious misconduct”, the lawyer had shown a “glaring disdain” for his ethical responsibilities, and he should receive an indefinite suspension.

Bottom line: This is an example of a prosecutor who went too far in zealously prosecuting a criminal defendant and was disciplined as a result, even though it appears that he believed that he was engaging in the deception to achieve the right result.  With regard to compliance with the Bar rules, the end will never justify the means, and all lawyers need to be wary of going too far and falling down a slippery slope in their representation, whether it is on behalf of the government or individual clients.

Be careful out there.

If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Prosecutorial misconduct ethics

U.S. Department of Justice prohibits ineffective assistance of counsel waivers as part of plea bargains in federal criminal prosecutions

Hello everyone and welcome to this Ethics Alert which will discuss the recent Washington Post article which states that the Justice Department has prohibited U.S. Attorneys from requiring waivers of ineffective assistance of counsel in exchange for a plea. The Post article is here: http://www.washingtonpost.com/world/national-security/doj-to-amend-competent-counsel-waiver-practices-as-holder-prepares-to-step-down/2014/10/14/465efbde-53ba-11e4-809b-8cc0a295c773_story.html?hpid=z3

According to the Washington Post article, the Justice Department said on October 14, 2014 that, effective on that date, federal prosecutors are prohibited from requiring criminal defendants to waive their right to claim ineffective assistance of counsel a condition of a plea. Attorney General Eric H. Holder said the “policy is an attempt to ensure that all individuals who face criminal charges are ably represented. ‘Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel…(u)nder this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.’”

“A memo by (Deputy Attorney General James M.) Cole directs federal prosecutors to no longer require criminal defendants to waive their future claims of ineffective assistance of counsel in plea agreements. It also instructs federal prosecutors to stop enforcing waivers that have already been signed in cases where defense counsel provided ineffective assistance that resulted in prejudice or where the defendant’s claim raises a serious issue that a court should resolve.” The Post article states that some U.S. attorney’s offices no longer require defendants to waive their right to make future claims about the effectiveness of their counsel; however, before the new policy was announced, 35 of the Justice Department’s 94 U.S. attorney’s offices still permitted the waiver requirement.

Bottom line: As I discussed in my 12/13/12 Ethics Alert blog, which is here: https://jcorsmeier.wordpress.com/2012/12/13/florida-bars-board-of-governors-approves-advisory-opinions-related-to-waivers-of-ineffective-assistance-and-prosecutorial-misconduct-and-permitting-lawyers-to-authorize-non-lawyers-to-use-e-portal-c/, Florida Bar Ethics Advisory Opinion 12-1 opines that it was unethical for criminal prosecutors to request such ineffective assistance waivers and for criminal defense lawyers to accept them. The opinion also states that it was unethical for prosecutors to request, and defense lawyers to agree to waivers of prosecutorial misconduct. This new DOJ policy now prohibits all federal criminal prosecutors from requiring such a waiver as part of a criminal plea.

Let’s be careful out there.

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

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Filed under Ethics of criminal plea waivers, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Ineffective Assistance of Counsel, joe corsmeier, Joseph Corsmeier, Lawyer conflict of interest, Lawyer ethics, Lawyer Ethics and Professionalism, Prosecutorial misconduct ethics

Kentucky Supreme Court upholds ethics opinion finding that a waiver of ineffective assistance claims as part of criminal plea bargain violates ethics lawyer rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Kentucky Supreme Court opinion which upheld an ethics opinion stating that waiver of ineffective assistance claims as part of plea bargain violates lawyer ethics rules. The opinion is: United States of America v. Kentucky Bar Association, Case No. 2013-SC-000270-KB (August 21, 2014) and is at: http://opinions.kycourts.net/sc/2013-SC-000270-KB.pdf

The U.S. Attorney for both the Eastern and Western Districts of Kentucky requested that the Kentucky Supreme Court review Kentucky Bar Association Ethics Opinion E-435, which opined that the use of ineffective assistance of counsel waivers in plea agreements violated the Kentucky Rules of Professional Conduct. The ethics opinion stated that the use of the waivers in plea bargain agreements creates a non-waivable conflict of interest between the defendant and his attorney, limits the attorney’s liability for malpractice, and causes defense counsel to violate the ethics rules.

According to the Kentucky Supreme Court opinion, “(u)nder our ethical rules, ‘(i)t is professional misconduct for a lawyer to:…knowingly assist or induce another (attorney) to” “violate or attempt to violate the Rules of Professional Conduct…. Providing context to the language, knowing is defined as ‘(h)aving or showing awareness or understanding’…and induce is roughly defined as to ‘influence or persuade…’ Prosecutors offering plea agreements with IAC waivers surely violate this rule.”

“Despite any notion of horse trading, plea agreements are often essentially contracts of adhesion. Indeed, in the context of appellate waivers, they have been labeled as such. The plea agreement often comes with a take-it-or leave-it tone. And defense counsel is forced to deal with the provision if offered. Because the prosecutor is aware of our ethical rules, we see little reason why offering a contract of adhesion that requires a fellow attorney to perform unethically in order to comply with other ethical or constitutional obligations would not be “influencing or persuading” a fellow attorney to violate our ethical rules. Contrary to the United States’ assertion, it is not necessary that the prosecutor know defense counsel has been ineffective in order to satisfy the rule. Instead, the plain language of the rule indicates that what is required is for a prosecutor to understand his conduct will result in a fellow attorney violating our ethical rules.”

“(Ethics Opinion) E-435 additionally found the United States plea-bargaining practice violated -3.8 of our ethical rules. As a result of their weighty role in our justice system, -3.8 places special responsibilities on prosecutors. E-435 holds the insertion of IAC waivers in plea agreements violates the “spirit” of -3.8 and prosecutors disregard their role as a “minister of justice” when using such waivers. In truth, prosecutors are expected to be more than “simply…an advocate.” Demanding a defendant waive a potential IAC claim—or, worse, all collateral attack—may provide finality but at too high of a cost. A defendant’s conviction is essentially unappealable as a result of the waiver in question. A prosecutor is charged with “see(ing) that the defendant is accorded procedural justice,” and we simply do not believe the use of IAC waivers lives up to that lofty expectation. Accordingly, we affirm E-435 with respect to prosecutors.”

“We are duty-bound to regulate the legal profession within our borders. Today, we are proactive in that role. Attorneys practicing in this Commonwealth, whether state or federal, must comply with our ethics rules. Accordingly, either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack, including (ineffective assistance of counsel), violates our Rules of Professional Conduct.

Bottom line: This Kentucky Supreme Court opinion confirms that waiver of ineffective assistance claims as part of plea bargain violates Kentucky lawyer ethics rules. Florida Bar Ethics Advisory Opinion 12-1 (2012) reached the same conclusion and also opined that a “prosecutor may not make an offer that requires the defendant to expressly waive ineffective assistance of counsel and prosecutorial misconduct because the offer creates a conflict of interest for defense counsel and is prejudicial to the administration of justice.”

Let’s be careful out there.

Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

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Filed under Attorney Ethics, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Ineffective Assistance of Counsel, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Prosecutorial misconduct ethics

Wisconsin Supreme Court dismisses disciplinary charges against criminal prosecutor who failed to provide defense with unsworn note containing admission of another person

Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Wisconsin Supreme Court affirming the dismissal of disciplinary charges against a lawyer who was prosecuting the driver of a motor vehicle for possession of marijuana and did not provide an unsworn note written by a passenger in the vehicle admitting that he possessed the marijuana.  The case is In the Matter ofSharon A.Riek, Case No. 2011AP1049-D, 2013 WI 81 (Supreme Court of Wisconsin,July 23, 2013).  The opinion is online here: http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=9975

According to the opinion, the criminal case involved a traffic stop and the arrest of the driver for possession of marijuana. The driver was on supervision for a prior cocaine possession and was criminally prosecuted for possessing the marijuana.  A passenger in the vehicle (Isaiah Simpson) subsequently told law enforcement and prosecutors that the marijuana was his.  The defense attorney was aware of Simpson’s confession and also had Simpson on his trial witness list; however, the prosecutor did not provide a copy of an unsworn note with his admission to the defense until four days before trial.  After conducting an investigation, the prosecutor moved to dismiss the criminal charge and the charge was subsequently dismissed.

The opinion affirmed the dismissal of the disciplinary charges brought against the prosecutor for failing to disclose the note/admission and rejected the Wisconsin Office of Lawyer Regulation (OLR)’s contention that a “prosecutor’s ethical duty of disclosure (under the Wisconsin professional conduct rules) is broader than the constitutional requirements identified in Brady” and stated that “(t)he record is devoid of evidence that (the prosecutor)’s alleged delay in producing the Simpson Note and disclosing the fact of Simpson’s discussion with (another prosecutor) was intentional or done for any strategic purpose.  Mindful of the voluminous caseloads managed by most prosecutors, we are unwilling to rule that (the prosecutor)’s disclosure of essentially duplicative information four days in advance of an apparently routine marijuana possession case ran afoul of her ethical and procedural obligations as a prosecutor.”

“We note, moreover, that even where a prosecutor does fail to disclose exculpatory evidence in violation of Brady, a single inadvertent failure does not necessarily constitute an ethical violation.  Negligence and ethical misconduct are not necessarily synonymous.  Most courts and official ABA policy agree that a single instance of “ordinary negligence” may trigger other adverse consequences and possible sanctions but does not usually constitute a disciplinary violation warranting public discipline.”  The opinion then upheld the dismissal of the disciplinary charges.

Bottom line:  This is most recent of multiple state disciplinary opinions this year which address potential violations of state Bar Rules by a prosecutor.  This opinion dismissed the charges against a criminal prosecutor in Wisconsin stating that a “single instance of ‘ordinary negligence’ does not usually constitute a disciplinary violation warranting public discipline.”  This result appears to be fair under the circumstances since the failure to produce the unsworn note appears to have been unintentional and the defense attorney already knew about the admission/exculpatory statement.  As a former criminal prosecutor and Florida Bar prosecutor and now defense attorney, I am somewhat surprised that the Wisconsin disciplinary agency would choose to appeal the dismissal, and I do not necessarily agree with it.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer sanctions, Prosecutorial misconduct ethics

Maine Supreme Judicial Court imposes stayed 30 day suspension on criminal prosecutor for multiple acts of misconduct both before and during trial

Hello and welcome to this Ethics Alert blog which will discuss the recent disciplinary opinion of the Maine Supreme Judicial Court imposing a stayed 30 day suspension on a criminal prosecutor who engaged in multiple acts of misconduct in a criminal prosecution both before and during trial, including failing to provide exculpatory evidence in discovery and improper comments during rebuttal closing argument.  The case isMaine Board of Overseers of the Bar v. Kellett, Docket No. BAR-13-10  (Maine. Supreme Judicial Court,July 16, 2013)The opinion is online here: http://www.courts.state.me.us/opinions_orders/supreme/bar_decisions/2013/bar-13-10_kellett_judgment.pdf

According to the opinion, “(t)his case is the first disciplinary proceeding ever filed with the Court by the Overseers of the Bar against a member of Maine’s prosecutorial bar that is based upon the prosecutor’s representation of the State.  In reviewing the actions of (the lawyer), the Court has considered the special duty that a prosecutor owes to the bench, to opposing counsel, to criminal defendants, and to the people of Maine.  A prosecutor must always act in an effort to do justice rather than simply to convict.  That is because prosecutors do not represent individual victims, nor should they work towards any particular outcome other than one that involves the creation of a fair trial process and outcome.

“Over seventy-five years ago, the United States Supreme Court described a prosecutor as: the representative…of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.  He may prosecute with earnestness and vigor–indeed, he should do so.  But, while he may strike hard blows, he is not at liberty to strike foul ones.  It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.  Berger v. United States, 295 U.S. 78, 88 (1935).

“The Law Court has endorsed this vision of a prosecutor’s role, see, e.g., State v. Young, 2000 ME 144, ¶ 6, 755 A.2d  547, 548 (“As we have noted previously, prosecutors are held to a higher standard regarding their conduct during trial because they represent the State…and because they have an obligation to ensure that justice is done, as opposed to merely ensuring that a conviction is secured.”), and it is because (the lawyer) failed to meet this standard that she must be sanctioned.”

“However, the Court is also mindful  that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to, or otherwise have failed to, properly discharge their professional duties.  See M. Bar. R. 2(a).  In this proceeding, (the lawyer) has admitted that she did, in fact, violate  the Bar Rules in effect at the time of her actions, she has apologized, and she has expressed her remorse for her actions.  She has no history of other misconduct, and the Court is satisfied that through these proceedings and through the actions and study she has undertaken since the Filler case, (the lawyer) has a much more robust understanding of the grave obligations and responsibilities attached to the prosecutorial role, and that she is not likely to commit misconduct in the future.”

Bottom line:  This is another opinion this year which imposes discipline on a criminal prosecutor for violations of state Bar Rules because of misconduct during a criminal prosecution.  This opinion states that this is the first disciplinary proceeding against a criminal prosecutor in Maine.  Considering the evidence of multiple acts of misconduct cited in the opinion, the 30 day stayed suspension misconduct appears to be relatively minimal.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer sanctions, Prosecutor criminal conduct, Prosecutorial misconduct ethics

Oklahoma Supreme Court imposes 180 day suspension on criminal prosecutor who obstructed access to evidence and failed to timely disclose evidence over 20 years

Hello and welcome to this Ethics Alert blog which will discuss the recent disciplinary opinion of the Oklahoma Supreme Court imposing a 180 day suspension on a criminal prosecutor who engaged in “reprehensible” conduct over a 20 year period in 2 related death penalty prosecutions.  The case isState ex rel. Oklahoma Bar Association v. Miller, 2013 OK 49Case Number: SCBD-5732  (Okla. SCJune 25, 2013)The opinion is here: http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=470358

According to the majority opinion, the lawyer was assigned to prosecute 2 death penalty cases and, over a period of 20 years, inter alia, engaged in multiple acts of obstructing access to evidence and failure to disclose exculpatory information.  After being convicted, both defendants appealed to the Oklahoma Court of Criminal Appeals and their direct appeals were denied.  “Relief was also sought in the federal courts and it culminated in the 10th Circuit Court of Civil Appeals’ opinion in Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009), which resulted in the reversal of both convictions. The basis of this reversal was the respondent’s ‘egregious conduct’ as prosecutor. The Oklahoma County District Attorney’s office has declined to retry Douglas and Powell.

“The complainant, Oklahoma Bar Association, charged the respondent, Robert Bradley Miller, with five counts of professional misconduct associated with the attorney’s alleged conduct concerning events before, during, and after two murder trials which he prosecuted as an Assistant District Attorney for the Oklahoma County District Attorney’s office.  The prosecutions stemmed from a drive-by shooting on June 24, 1993, in which a fourteen year old girl was murdered and a gang member was injured by alleged rival gang members near the Ambassador Court Apartments in Oklahoma City.

With regard to the discipline imposed, the majority opinion states: “This Court is the sole arbiter of bar discipline. We are free to attribute as much weight to the trial panel’s recommendations as we see fit.  Under the facts presented, appropriate discipline falls somewhere between a private reprimand and a year suspension.  Most recently, private reprimands have involved: failure to respond to grievances, failure to account for client funds and communicate with clients, selling marital property and concealing it, pleading nolo contendere with pointing a firearm, entering a plea to child abuse by injury.  Cases of prior public censure have fallen into categories such as sexual contact or inappropriate sexual advances, dismissals of client’s cases, or failing to do anything  on a client’s behalf or other types of client’s case mismanagement.”

“We must recognize that the respondent was acting under the direction, supervision, and policies of the then elected District Attorney. Responsibility for the respondent’s conduct and trial tactics falls partially to the District Attorney as the chief administrator of the office.  Although he exercised his rights to object and disagree to the charges, the respondent has also been fully cooperative with the Bar Association in this lengthy and tedious process.  Hindsight is 20-20.  Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension.”

“Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct.  Reprehensible though Miller’s conduct may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, Miller’s actions took place decades ago and it would be unfair to hold him to a harsher  standard than he would have been subjected to when his actions took place.  Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.”

“While the respondent’s conduct in Count IV may not have been wilful or active concealment, his actions did result in violations of obstructing access to evidence, timely disclosure of evidence, and conduct which was prejudicial to the administration of justice. The respondent stands exonerated of the allegations made against him in Count V.  Considering comparative disciplinary matters, the time span of the conduct in relation to the disciplinary proceeding, the respondent’s cooperation and lack of prior discipline, we suspend the respondent for 180 days and require him to pay $12,834.00 towards the costs of these proceedings.”

According to the strong dissent:   “Whether it was ‘decades ago’ or today, no attorney should ever commit the  ‘reprehensible’ conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report.  The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice (emphasis supplied).  I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.”

Bottom line:  This 180 day suspension in this case is somewhat shocking considering the fact that the lawyer was a criminal prosecutor who engaged in misconduct in a death penalty case and the majority opinion characterized the conduct as “reprehensible” and involving “multiple acts of deceit” over a 20 year period.

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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