Monday, May 1, 2017

Georgia Imposes No Discipline For Alleged Rule 3.8(d) Violation

The Georgia Supreme Court has absolved a state prosecutor of ethics charges arising from an alleged violation of the duty to disclose exculpatory evidence.

The special master and Review Panel found that Lee violated Rule 3.8 (d), and they recommended that he receive a formal admonition. The State Bar urges that a more severe sanction — a public reprimand — is appropriate. We find, however, that the evidentiary record fails to show any clear-cut violation of Brady or Rule 3.8 (d), and for that reason, we conclude that no discipline at all is warranted.

The case

In 2013, Lee was employed as an assistant district attorney in Fulton County, and he was assigned to prosecute a case in which the accused was charged with two sex crimes against a child, one involving oral sodomy, and the other involving anal sodomy.  About a week before trial, Lee interviewed the child, who previously had given a statement (that was video recorded) implicating the accused in both oral and anal sodomy.  In speaking with Lee, the child recounted an incident of oral sodomy, but when Lee asked if the accused ever had “touched [the child’s] butt,” the child responded in the negative. Lee did not inquire further of the child at that time about the earlier allegation of anal sodomy. Lee then consulted a more seasoned prosecuting attorney in his office about the failure of the child to recount any instance of anal sodomy and how Lee ought to present the case at trial. Lee did not disclose to defense counsel before trial, however, that the child had denied that the accused “touched [his] butt.”

At trial, Lee presented the video recording of the earlier statement in which the child implicated the accused in oral and anal sodomy. Lee also called the child as a witness, and on direct examination, the child testified about an incident of oral sodomy...

In closing argument, Lee noted the inconsistency between the recorded statement of the child and his testimony at trial, and he acknowledged that the child not only failed to testify about any anal sodomy, but the child had testified that the anal sodomy, in fact, “didn’t happen.” Lee urged the jury to accept the trial testimony as credible, and he conceded an acquittal as to the charge involving anal sodomy. When the jury returned its verdict, it found the accused guilty of oral sodomy, but not guilty of anal sodomy.

The court rejected the suggestion that Rule 3.8(d) requires pretrial disclosure

No doubt, the record clearly and convincingly shows that Lee failed to disclose to defense counsel before trial that the child denied the anal sodomy.  But Brady does not always require pretrial disclosure of exculpatory evidence, and at least in some circumstances, a prosecuting attorney may satisfy Brady by disclosing it at trial. See, e.g., Burgan v. State, 258 Ga. 512, 513 (371 SE2d 854) (1988) (“The rule regarding the disclosure of exculpatory material set forth in Brady[] is not violated when the material in question is available to the defendants during trial, pre-trial disclosure of materials not being required.” (Citation omitted)); Floyd v. State, 263 Ga. App. 42, 43 (587 SE2d 203) (2003) (“Assuming, without deciding, that the statement was exculpatory, the state did not suppress the evidence because the prosecutor introduced it at trial, and Floyd had ample opportunity to cross-examine Gallamore.”). Moreover, our Court of Appeals has held that a prosecuting attorney may satisfy Brady simply by himself introducing at trial the substance of the exculpatory evidence. See, e.g., Nelson v. State, 279 Ga. App. 859, 864 (2) (632 SE2d 749) (2006) (“[N]o Brady violation occurred because the victims’ testimony was introduced at trial and Nelson was given an opportunity to conduct cross-examination.”). Whether a disclosure at trial is timely enough to satisfy Brady depends on the extent to which the delay in disclosing the exculpatory evidence deprived the defense of a meaningful opportunity to cross-examine the pertinent witness at trial, whether earlier disclosure would have benefitted the defense, and whether the delay deprived the accused of a fair trial or materially prejudiced his defense. See Burgan, 258 Ga. at 513-514 (1).

At the trial in question, Lee called the child as a witness, and Lee himself elicited testimony on direct examination that amounted to a recantation of the earlier allegation of anal sodomy. The exculpatory nature of the testimony on direct examination was far more clear and unequivocal than the pretrial denial that the accused had “touched [the child’s] butt.” Following the direct examination, defense counsel had an opportunity to cross-examine the child. Lee did not dispute the credibility of the recantation on direct examination, and he urged the jury in closing argument to accept it as credible. He made no effort to rehabilitate the allegation of anal sodomy in the recorded statement of the child. He conceded the anal sodomy charge. And the jury ultimately acquitted the accused of anal sodomy. It is true that the recantation of the anal sodomy allegation bears upon the credibility of other statements made by the child about oral sodomy, and so, the inconsistent accounts of anal sodomy were relevant to the charge involving oral sodomy. But the inconsistency became clear and obvious when the child recanted the allegation of anal sodomy in the presence of the jury, and the State Bar points to nothing in the record of these disciplinary proceedings that shows that the accused was prejudiced in any way by the late disclosure that the anal sodomy, as Lee put it, “didn’t happen.”  Given the peculiar circumstances of this case, we cannot say on the record now before us that the State Bar has shown a clear-cut Brady violation. We conclude that no discipline is warranted under Rule 3.8 (d).

(Mike Frisch)

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