Saturday, January 13, 2018

The Free Talk

An  admonishment has been imposed by an Arizona Hearing Panel for a prosecutor's negligent failure to disclose Brady material

At all times relevant, Ms. Roubicek was licensed to practice law in Arizona, having been admitted to the State Bar of Arizona on October 24, 2003. [JPS at 2.] Ms. Roubicek began felony prosecution in 2012 when she became employed with the Pima County Attorney’s Office. This matter concerns the State prosecution of Ronald Johnson by Ms. Roubicek. She was not involved in the investigation or in obtaining the indictment.

After Johnson was indicted

On November 21, 2013, [co-defendant] Mr. Barstow engaged in a free talk with the State.  Mr. Barstow was present with his lawyer. [Sealed Ex. 1.] Ms. Roubicek, with two Tucson Police detectives also participated in the free talk. At the beginning of the free talk, Ms. Roubicek advised Mr. Barstow that the recording of the free talk may be provided to other defendants in the matter and that any exculpatory information would be disclosed. [JPS at 6.] Mr. Barstow provided information about a different source for at least some of the hashish, which was the basis for one of the charges against Mr. Johnson. Mr. Barstow’s free talk also included information showing that Mr. Johnson was not the individual who possessed the firearm which was the basis for another charge.

Mr. Barstow made statements regarding Mr. Johnson during the free talk. Mr. Barstow’s statements are accurately reproduced in the free talk transcript. At the time of Mr. Barstow’s free talk, Mr. Barstow was still a defendant in the same case as Mr. Johnson. Mr. Barstow made some exculpatory statements concerning Mr. Johnson. [JPS 7-9.]

Barstow pleaded guilty and 

On February 12, 2014, Ms. Roubicek moved to dismiss and/or amend the charges against Mr. Johnson that were impacted by the free talk. Ms. Roubicek moved to dismiss the charges of possession of marijuana, production of marijuana, and possession of a deadly weapon during a felony offense. Ms. Roubicek moved to amend the charge of possession of a  the court of the State’s non-objection to Mr. Johnson’s motion to sever his case from the other defendants. Mr. Johnson’s case was severed and set for trial on March 18, 2014, on the amended charges.

Trial was continued

On March 31, 2014, Ms. Roubicek disclosed the Barstow free talk. [2:11:30 p.m.] The SBA alleges that Ms. Roubicek disclosed the free talk on the day before the trial, which Ms. Roubicek refutes, showing that the trial was set for April 22, 2014, at the time of the afternoon disclosure rather, than April 1. The minute entry confirms the defense in that morning status conference also needed time to obtain an expert witness and the case was continued to April 22, 2014. [Id. at 2:12:09 p.m.; Ex. 25.]

Ms. Roubicek was unable to try the Johnson case due to a conflict with another case, and did not oppose the continuance. She then went back to her office after that status conference. [HT at 2:12:20 p.m.] She then discovered that the free talk documents had not yet been disclosed, and she immediately alerted her paralegal to disclose the free talk that day. [Id. at 2:13:29 p.m.] She was under the impression that once Mr. Barstow was locked into a plea agreement, she was to get the plea agreement, the documents, the audio, and the transcript together in a packet, so that it would all be disclosed together, and she believed that had all taken place. [Id. at 2:12:57 p.m.]

And the case was dismissed

On April 21, 2014, a status conference was held. There, defense counsel orally made a Motion to Dismiss due to the disclosure violation. The court then ordered defense counsel to file a formal written motion by April 25, 2014. Defense filed its Motion on April 28, 2014, which was granted. On June 30, 2014, there was a hearing set to consider the Motion to Dismiss. [JPS at 15; HT at 1:15:50 p.m.]

The court dismissed the matter with prejudice and found Ms. Roubicek’s conduct was unintentional error. [Sealed Ex. 3.] Ms. Roubicek told the court that she believed she had cured the issue over the exculpatory evidence by dismissing and amending certain charges on the indictment, and that she thought she had handled things correctly. [Id. at 2:16:32 p.m.] The Pima County Attorney’s Office did not take disciplinary action against Ms. Roubicek. [Id. at 2:26:50 p.m.]

The attorney testified in the bar hearing

During the evidentiary hearing held October 18, 2017, Ms. Roubicek testified that she had no prior training related free talks, no prior training related to the Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) reporting requirements,  and testified that she was unfamiliar with the Brady rule. [Hearing Testimony (“HT”) at 1:27:03 p.m.] She did, however, testify that she may have attended CLE courses that discussed the Brady rule. [Id. at 2:33:10 p.m.] Ms. Roubicek made a plea offer to Mr. Johnson on September 11, 2013, to a class 4 felony. [Id. at 1:32:09 p.m.; Ex. 12, Bates 132.] At that point, there was no free talk with Mr. Barstow. [Id.]

The panel rejected the State Bar's request for a suspension of six-months and a day. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/01/an-agreed-upon-admonishment-approved-by-the-arizona-presiding-disciplinary-judge-at-all-times-relevant-ms-roubicek-was-lic.html

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