Thursday, March 17, 2016
I tweeted about the Brockler case yesterday. The only thing more surprising than the shocking misconduct of the prosecutor being "disciplined" is the way in which he was "disciplined" by the court. So, what were the exact facts of the case?
Assistant Cuyahoga County prosecutor Aaron James Brockler charged Damon Dunn with murder based upon the shooting death of Kenneth "Blue" Adams. Brockler Dunn denied any involvement and instead claimed "that at the time of the murder, he was with his girlfriend, Sarah Mossor, and her friend Marquita Lewis."
During his investigation, Brockler "listened to a recording of a heated conversation in which Dunn and Mossor argued over Dunn’s fear that Mossor would not be a reliable witness and Mossor’s belief that Dunn had not been faithful to her." Specifically, "Mossor suspected that Dunn had had a romantic relationship with a woman named 'Taisha.'" As a result, "Brockler saw an opportunity to exploit her feelings of distrust and get her to recant her support for Dunn." So, what did he do?
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.
Posing as Little, Brockler simultaneously contacted Mossor and Lewis in separate Facebook chats. He falsely represented that Little had been involved with Dunn, that she had an 18-month-old child with him, and that she needed him to be released from jail so that he could provide child support. He also discussed Dunn’s alibi as though it were false in an attempt to get Mossor and Lewis to admit that they were lying for Dunn (or would lie for him in the future) and to convince them to speak with the prosecutor.
After chatting for several hours, Brockler sensed that Mossor and Lewis were suspicious, so he shut down the chat and deleted the fictitious account. He testified that he printed copies of the chats and placed them in a file—with the intent to provide copies to defense counsel—before he deleted the account, but those copies were never found. He attended five pretrial conferences from January through April 2013 but did not disclose the circumstances or content of his conversations with Mossor or Lewis.
Brockler then took an extended medical leave, so the case was given to a second prosecutor; Brockler told him
that he might need to be a witness at trial because both Mossor and Lewis had told him they would not support Dunn’s alibi, although they were afraid to say so in court. Brockler did not disclose how he obtained that information.
Thereafter, a police detective uncovered a transcript of Lewis's chat with "Taisha Little," and the new prosecutor showed it to Brockler. Brockler then waited three weeks before admitting that he was "Taisha Little," leading to his firing.
Given the above, you might have expected Brockler to be apologetic; instead, he was recalcitrant. Brockler gave interviews in which he claimed that
(1) prosecutors have long engaged in ruses to obtain the truth, (2) his firing was an overreaction because he only did what the police should have done, (3) he engaged in an investigative ruse to uncover the truth and keep a murderer behind bars, (4) the public was better off because of his actions, (5) if he had not taken these actions, a murderer might be walking the streets, (6) he promised the victim’s mother that he would not let a horrible killer walk out of the courthouse to kill someone else, and (7) McGinty chose to follow the technical rules of ethics, while he chose to protect the public.
Later, Brockler continued to maintain that his conduct was ethical, acknowledging that his conduct violated the letter of the law, but claiming that there should be an exception for "prosecutorial investigation deception."
The Board of Professional Conduct disagreed with Brockler but merely "recommended that he be suspended for one year, fully stayed on conditions." The Supreme Court of Ohio later agreed, finding that "the misconduct was an isolated incident in an otherwise notable legal career." In other words, unless Brockler does something else wrong, he will not be suspended.
I fundamentally disagree with the Supreme Court of Ohio, and so did Judge O'Donnell, who dissented with the following one sentence opinion: "Respondent engaged in unacceptable dishonest conduct that materially affected the administration of justice, and I would impose an indefinite suspension."
I will add that Brockler himself admitted that this wasn't a one time thing; instead, he said that he had previously used the Facebook ruse in "a prior case." Moreover, it's not as if Brockler acknowledged his serious error in judgment and immediately made amends. Instead, he first covered up his actions and later claimed that they were justifiable and commonplace. To me, this justified a lengthy suspension, maybe even disbarment.