Tuesday, January 19, 2021
The District of Columbia Board of Professional Responsibility proposes a six-month suspension of two prosecutors for disclosure violations
Prosecutors have ethical requirements that apply only to them. Important among these is a requirement – found in Rule 3.8(e) – to timely provide defense information or evidence that tends to negate the guilt of the accused.
Respondents were prosecuting several inmates at the District of Columbia Jail for assault stemming from a fight in the jail. One important witness about the identity of the inmates was D.C. Jail correctional officer Lieutenant Angelo Childs. Roughly six weeks before trial, Respondents received a report that described several kinds of misconduct by Childs. The report was written by a Department of Corrections (DOC) Office of Internal Affairs (OIA) Investigator named Benjamin Collins. The Collins Report determined that Childs maced an inmate in the face who was handcuffed, then filed a false incident report about it and filed a false disciplinary charge against the inmate alleging the inmate assaulted an officer.
All of this information should have been disclosed to the defense under Brady v. Maryland, 373 U.S. 83 (1963). In a long line of cases under Giglio v. United States, 405 U.S. 150 (1972), courts have held that a prosecutor has a duty to disclose information and evidence that could be used to impeach the credibility of a government witness, commonly called Giglio information. The Collins Report contained such information.
Instead of providing the report to the defense, however, Respondents filed it ex parte and under seal with the Court and filed a motion in limine that purported to describe the Giglio information in the Collins Report. The summary of the Collins Report in that motion was defective; while it did include some of the impeachment evidence, it did not include all of it. Specifically, the motion in limine did not disclose the determination that Childs filed a false disciplinary charge against the inmate alleging that he assaulted an officer and it dramatically misconstrued the adverse finding about Childs’ credibility that was made in the report. The motion in limine said that the Collins Report “may have made potentially adverse credibility findings regarding Officer Child’s [sic] statement regarding when Inmate A was handcuffed,” DX 17 at 4, when it should have disclosed that Officer Childs filed a false disciplinary charge saying Inmate A assaulted an officer.
The record is clear that both Respondents read the Collins Report before writing the motion in limine and, while Dobbie wrote the motion, Taylor reviewed it before it was filed. The motion in limine includes a great deal of detail about theCollins Report, yet scrupulously avoids mention of the false disciplinary charge. Indeed, the motion includes a block quote from the Collins Report that ends right where the Report discusses the false disciplinary charge.
In drafting the motion, Respondent Dobbie testified that she “started with the findings” at the back of the Collins Report and then wrote the motion to include “the facts that pertain to those particular findings.” HC Rpt. at 22. The false disciplinary charge was not included in the findings.
Rule 3.8(e) states, in principal part, that it is a violation of the D.C. Rules of Professional Conduct for a prosecutor to:
[i]ntentionally fail to disclose to the defense . . . any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused . . .
Though a fuller discussion is set out below, we conclude that the elements of a Rule 3.8(e) violation have been proven. The Collins Report’s conclusion that Childs filed a false disciplinary charge was Giglio information and needed to be disclosed. While Respondents did not include it because it was not in the findings section of the Collins Report, a reasonable prosecutor would know that the false disciplinary charge was Giglio information. And Respondents intentionally made a disclosure, through the motion in limine, that did not include that Giglio information.
For the reasons set out below, we also find that Respondents violated Rule 8.4(c), by engaging in conduct involving dishonesty, and violated Rule 8.4(d) because their conduct seriously interfered with the administration of justice. We recommend a suspension of six months.
The board rejected a number of charges but nonetheless concluded that suspension was appropriate
The Rule 3.8(e) violation is the central violation in this case; however, the determination that Respondents violated Rule 8.4(c) is a substantial aggravating factor. As Disciplinary Counsel acknowledged at oral argument, with respect to sanction on the Rule 3.8(e) violation, there is little to guide us; there is limited caselaw concerning the appropriate sanction in matters involving prosecutorial misconduct in violation of Rule 3.8(e).
Disciplinary Counsel is surely right that , as a general matter, a violation of Rule 3.8(e) undermines our entire system of criminal justice. Prosecutors are not merely advocates; they are called upon to make sure that criminal trials are fair to the accused and that the machinery of prosecution is credible. At its most severe, a violation of Rule 3.8(e) can mean that an innocent person languishes in prison –which would surely be an aggravating factor.
...we conclude that a sanction much more significant than that inKline is warranted. We believe that a six-month suspension is the appropriate sanction
Authored by a former student of mine. (Mike Frisch)