Friday, January 16, 2009

County Attorney Suspended

The Kansas Supreme Court suspended a county attorney for six months based on the following facts:

In early May 2007, certain minors attended a Greeley-area party at which beer was consumed. One minor girl, C.H., who had drunk approximately six beers, was photographed by other partygoers while she had sexual intercourse with a foreign exchange student, M.V. The amateur photographers also recorded certain minors drinking beer at the party.

Within a few days, C.H. informed her school counselor that M.V. had sexually assaulted her at the party. Law enforcement was notified. During this same time period, the Anderson County Sheriff's office was also investigating a similar report about M.V. from a second female high school student.

Law enforcement officers obtained some of the photographs taken at the May party and forwarded them to Respondent. Respondent altered the photographs to obscure faces and certain body parts but not others. He concluded that he would not pursue prosecution of M.V. because Respondent believed the sexual conduct depicted in the photographs to have been consensual.

The Anderson County Review newspaper ran an article in early July 2007 in which it discussed Respondent's view of the incident. The newspaper further reported that Respondent planned to show the photographs from the May party to the parents of minors who had attended.

Upon reading the article, C.H.'s mother contacted Respondent to tell him that he did not have her permission to show the photographs of her minor daughter to others. The Respondent challenged the mother, saying he did not need her permission. Thereafter, Respondent proceeded with his plan to show the photographs to several parents of minors who attended the party.

The newspaper ran a follow-up article regarding the photographs as well as an editorial written by Sandy Barnett, Executive Director of the Kansas Coalition Against Sexual and Domestic Violence. After counsel for C.H. and her mother contacted Respondent about sealing the photographs from public view, Respondent wrote a return letter, stating,

"As the photographs you refer to are evidence of criminal activity by several minors and as I cannot lawfully withhold evidence, I have allowed and will continue to allow the parents of potential respondents to view altered versions of them, in my office . . .

". . . I further want to thank you for any future litigation that you pursue in this matter as it will inevitably generate a large amount of publicity for the issue of underage drinking, hosting of minors and the harmful effects of minors engaging in public sexual acts. I was beginning to fear that nothing would be done and that this issue would fade from the public eye."

C.H. was subjected to public ridicule as a result of these events, and she now suffers from depression.

The attorney was found to have violated Kansas Rule 4.4 by engaging in conduct that had no substantial purpose other than to embarrass, delay or burden a third person as well as conduct prejudicial to the administration of justice. The court rejected the suggestion that his motive to discourage underage drinking or asserted conditions mitigated the misconduct:

  Counsel for Respondent argued to us that, although his client's conduct was egregious, it arose out of a "right reason," i.e., a zeal to end underage drinking. Counsel also asserted that the record on appeal contained evidence that his client suffered from Asperger's Syndrome, a malady that impairs his ability to empathize with others and that his client had apologized to C.H.'s mother after the disciplinary hearing concluded.

  When Respondent addressed this court, he echoed his counsel's "right reason" argument, saying he had seen the damage underage drinking could do and thought he could "fix the world" by showing the photographs to the parents of teens depicted drinking at the party. Nevertheless, he demonstrated little understanding of how troubling his method was. Had he been one of those parents shown the photographs, he said, he would have been angry with himself for being a "bad parent." He also denied that he had contacted the press about his plan to display the photographs but admitted the first story followed his mention of that plan to a reporter and another lawyer during a Rotary meeting. He stated explicitly that he did not understand why other women and girls who believed themselves to be victims of sex crimes might now be reluctant to report the crimes or assist with prosecutions. Also, despite his counsel's assertion that he had several mentors who would guide the exercise of his prosecutorial discretion, he had not pursued any independent review of his decision not to prosecute in C.H.'s case. Regarding Asperger's Syndrome, Respondent said he had been diagnosed with Attention Deficit Disorder (ADD) during his first year of law school and that there was a letter in the record on appeal about his condition. In addition, he took the position that his condition had worked to his advantage as a prosecutor because he could be dispassionate when evaluating cases.

  The letter in the record on appeal to which both Respondent and his counsel evidently referred was written by Respondent's doctor. It confirms that Respondent has a diagnosis of ADD. Beyond that, it says only: "[Campbell] also presents with other personal characteristics that have become apparent during his years of treatment. The possible diagnosis of high functioning Autism - Asperger's Disorder has been considered during his treatment. At this point, my professional medical opinion is he does not present with sufficient criteria for diagnosing those conditions, however, one does not need to meet the full level of intensity to make a definitive subsymdromal diagnosis." Counsel for Respondent, although he discussed Asperger's Syndrome in his argument, explicitly did not invoke it as a defense to the conduct in which Respondent engaged.

The comment to this post correctly notes that the conduct ran afoul of a specific Kansas statute mandating the confidentiality of the information that the attorney disclosed. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/01/the-kansas-supr.html

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Comments

Although much of the opinion expressed the outrage of the court, the key to this case is the Hearing Panel’s finding, endorsed by the court, that the respondent violated a statute:

“. . . K.S.A. [2007 Supp.] 38-2310(c) provides [that information identifying victims and alleged victims of sex offenses shall not be disclosed or open to public inspection under any circumstances]. . . .

“. . . In this case, the Respondent engaged in 'conduct that is prejudicial to the administration of justice' when he violated K.S.A. 38-2310(c) by allowing parents of minors who attended the May 11, 2007, party to view the photographs.”

Had this not been the case, then this case would have raised much more interesting First Amendment issues.

Stephen

Posted by: FixedWing | Jan 16, 2009 12:21:20 PM

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