Thursday, March 16, 2017
The District of Columbia Court of Appeals concluded that an attorney's video voyeurism was a crime of moral turpitude requiring disbarment.
Respondent Kelly A. Cross pleaded guilty in 2009 to one count of misdemeanor video voyeurism in violation of D.C. Code § 22-3531 (c) (2012 Repl.), after he secretly taped a man who was undressing in the locker room of a gym. The Board on Professional Responsibility (“the Board”) determined that Mr. Cross had committed a crime of moral turpitude on the facts. The Board also found that Mr. Cross had violated Rules 8.4 (b) and 8.4 (c) of the District of Columbia Rules of Professional Conduct. It recommends that Mr. Cross be disbarred pursuant to D.C. Code § 11-2503 (a) (2012 Repl.), which requires disbarment when a member of the Bar is convicted of a crime involving moral turpitude.
The attorney did not file exceptions to the report of the Board on Professional Responsibility that had recommended the finding and sanction.
We covered the hearing committee report's contrary conclusion.
The incident that led to the conviction occurred at a Washington sports club (named Washington Sports Club) on August 19, 2009.
The attorney, who was employed with the Freshfields law firm, had recently returned from a two-year stint in Germany. He was two days away from a scheduled civil union with his longtime partner.
He testified before the committee that he went on Craigslist that morning to identify a gym where he might find a same-sex encounter.
He further testified that he responded to several people. including someone who described himself as "a well -endowed bear who was interested in showing off in the SSS [shower, sauna, stall]."
He brought a video camera with him that he concealed in a toiletries bag.
He described his intent was to have a "last fling here at the gym and wouldn't it be nice to record some of [it]."
The ensuing encounter was with a person that the attorney claimed to mistakenly have believed might be the aforesaid bear.
Rather, the victim/complainant was an attorney - a former Boston police officer and Assistant DA who was in private practice after a stint with the D.C. Attorney General 's Office.
He was looking to exercise and use the bathroom, nothing more.
The attorney took surreptitious video of the victim's buttocks and genital area. He then attempted to take video from one bathroom stall of the victim in the adjacent stall and was discovered.
Chaos and an arrest followed.
The complainant and the attorney provided conflicting versions of what happened in the stalls.
The committee believed the complainant and found that (i) the Craigslist/bear story was false and (ii) he had assaulted the complainant in the chaos.
Finding that the crime did not rise to the level of moral turpitude
...in today's world, a camera can be expected to be anywhere, including gyms like WSC, which are forced to post signs stating that video cameras are prohibited in the locker room. While this technological reality does not excuse Respondent's conduct, it properly frames the [moral turpitude] question...
The committee's sanction recommendation was heavily influenced by its finding that the attorney gave knowing false testimony in the disciplinary proceeding.
Note that the court decided the matter 10 days after it was submitted but that it still took the disciplinary system nearly eight years to resolve the case. (Mike Frisch)