Thursday, December 7, 2023

Supervisor Inadequate Guidance Reduces Sanction For Prosecutor Disclosure Violation

In a case involving prosectors who failed to adhere to their Brady obligations, a majority of the District of Columbia Court of Appeals imposed a fully-stayed six-month suspension.

Associate Judge Alikhan authored the opinion joined by Senior Judge Glickman; Associate Judge Deahl penned an impassioned (and, to me, persuasive) dissent.

From the majority

In its Report and Recommendation, the Board on Professional Responsibility found that respondents had violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of Columbia Rules of Professional Conduct. Rule 3.8(e), in relevant part, prohibits prosecutors from “[i]ntentionally fail[ing] 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 or to mitigate the offense.” Rule 8.4(c) proscribes “conduct involving dishonesty, fraud, deceit, or misrepresentation.” And Rule 8.4(d) forbids conduct that “seriously interferes with the administration of justice.” The Board recommended that respondents be suspended from the practice of law for six months.

We agree with the Board that respondents violated each of these rules, but we disagree as to the appropriate sanction. In recognition of the inadequate and ill-advised guidance provided to respondents by their supervisors; the nature of respondents’ Rule 8.4(c) violation; respondents’ lack of bad faith and otherwise unblemished records; and our obligation to treat similar cases alike, we instead impose a six-month suspension, stayed as to all in favor of one year of probation.

The disclosure involved witness credibility in a D.C. jail brawl prosecution

Respondents recognized that the Collins Report called Childs’s credibility into question and sought guidance from their supervisors about how best to proceed. Jeffrey Ragsdale, Chief of the Felony Major Crimes Section at the U.S. Attorney’s Office, decided to refer the issue to the Lewis Committee, a committee of senior prosecutors that determines whether the government can sponsor the testimony of law enforcement officers with whom there are credibility concerns. Ragsdale emailed John Roth, the head of the committee, a copy of the Collins Report and a summary of the concerns regarding Childs. At this point, the Collins Report was the only information the U.S. Attorney’s Office had about the incident; neither respondents nor anyone else had reviewed the underlying evidence on which it was based.

Although the Vaughn trial was only five weeks away when Ragsdale first emailed Roth, the Lewis Committee proved less than forthcoming with its guidance. Respondents and Ragsdale followed up, eventually prompting a response from Roth less than two weeks before trial. Roth said that the government could sponsor Childs and instructed respondents to “disclose the report and litigate its admissibility.” He also expressed his “personal opinion” that Childs’s report was “simply unclear” and that he was not sure “that the DOC conclusion that he lied is supported by the record,” but he left it to respondents to “hash that out.” Roth formed this personal opinion even though the only “record” before him was the Collins Report, which had concluded in no uncertain terms that Childs had filed two false reports.

While respondents could have followed Roth’s instructions by disclosing the Collins Report to the defense directly and then litigating whether it was admissible at trial, that is not the route they took. Instead, Ragsdale recommended that respondents file the report with the court ex parte and under seal and summarize its contents in a motion in limine arguing that the defense should not be permitted to cross-examine Childs about the report or the incident with Heath. This approach was not uncommon in the U.S. Attorney’s Office at the time. The purported purpose of proceeding in this manner—submitting evidence only to the court and summarizing it in a motion for the defense—was to disclose to the defense information to which the defense was entitled, while keeping from the defense information that presented a security risk or was otherwise sensitive. According to the respondents, the Collins Report contained “sensitive employment information” and thus needed to be kept from the defense.

Rather than disclose, the prosecutor submitted a portion of the report to the court ex parte and successfullly litigated to keep it from the defense.

Intent to violate rule

Respondents’ appeals to public policy and those of their amici are likewise unavailing. They first contend that it is simply unfair to discipline prosecutors who have not acted in bad faith. But standards of reasonableness—standards that do not require bad faith—pervade the Rules of Professional Conduct.

Merits that led to reversal of underlying conviction

We can think of few things more powerfully impeaching of Childs—whose task was to tell the jury that certain D.C. Jail inmates had committed assault—than that he had previously falsely accused an inmate of assault. So too that he had violated DOC’s use-of-force policies, filed a false incident report after the fact, and been disciplined for his use of force. This last piece of information is important because DOC demoted Childs after he was reprimanded for his unauthorized use of force. While the record is murky about the exact reason for this demotion, that Childs was previously reprimanded for his use of force at least allows the inference that he was demoted for some additional infraction—namely, his untruthful reporting.

Submission to court did not negate violation

The motion in limine casts groundless aspersions on the Collins Report’s conclusions, which surely counts against the argument that the motion was a straightforward request for Brady guidance. It is important to remember that at the time respondents wrote this motion, they had not viewed any of the underlying evidence on which the Collins Report was based, so they had no basis to doubt whether Collins’s conclusions were reasonable or not. But that unfortunately proved no barrier to their disputing those conclusions.

The court also sustained findings of reckless dishonesty and conduct that seriously interfered with the administration of justice.

Sanction

Because we believe that the Board’s recommendation in this case similarly does not fairly account for all of the relevant considerations, we conclude that a stay of respondents’ suspensions—subject to probationary requirements—is appropriate.

For the duration of the one-year probationary period, respondents must refrain from committing any crimes or violating any further Rules of Professional Conduct. In the event that either respondent fails to comply, that respondent’s six-month suspension will take effect from the date of noncompliance. 

Note: The probationary requirements apply to all D.C. lawyers already. Weak tea.

Dissent of Associate Judge Deahl

the respondents (1) affirmatively misrepresented the Collins Report’s contents to the defense in their motion in limine, omitting its most important finding (that Officer Childs, in coordination with other officers, falsely implicated another inmate in an assault); (2) purported to turn over the entire report to the trial judge for ex parte review, but in reality submitted an incomplete report missing the same exculpatory evidence that they failed to summarize in their motion in limine (the relevant passages cut off by a claimed “faxing error”); and (3) assured the trial judge, when he noted that he seemed to be missing key pages, that he had the Collins Report in its entirety. I agree with my colleagues that Dobbie and Taylor thereby violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of Columbia Rules of Professional Conduct.

I do not agree with my colleagues that a six month suspension from the practice of law is too harsh a sanction for their misconduct. The nine members of the District’s Board on Professional Responsibility unanimously recommended a six month suspension after carefully considering Dobbie and Taylor’s misconduct and weighing its seriousness.

Advice of superiors

The majority notes just “one overriding mitigating circumstance” driving its departure from the Board’s recommendation: respondents’ supervisors “did them no favors.” Supra at 64, 66. I disagree. Those supervisors did respondents the favor of telling them to disclose the Collins Report’s contents to the defense. If respondents had abided that direction they would not be before us today. Lost in the majority’s discussion of the supervisors’ failings is the simple fact that nobody advised Dobbie and Taylor to commit any of the misconduct underlying their disciplinary infractions. Nobody advised them to conceal the exculpatory evidence. Nobody told them to misrepresent the Collins Report’s contents in their motion in limine or to provide the trial judge with only a partial report that omitted the same critical portions they neglected to summarize in their motion. And nobody told them to falsely assure the judge that he had the entire report when he correctly flagged that portions were missing. Had any of that advice been offered, no fit prosecutor would have followed it. So I do not share my colleagues’ view that it is really the supervisors who are largely to blame here, and the limited blame that can fairly be attributed to them does not mitigate respondents’ culpability in any event.

Dobbie and Taylor should face real consequences for their actions—Morton certainly did when he spent more than four years imprisoned for offenses that the government would not even retry him for once respondents’ Brady violations came to light. The majority instead, after paying repeated lip service to the severity of respondents’ misconduct, doles out a probationary sanction directing them to “refrain from committing any crimes or violating any further Rules of Professional Conduct” for a year. That slap on the wrist does not adequately reflect the seriousness of respondents’ misconduct here, nor does it adequately protect future criminal defendants from meeting a fate similar to Morton’s.

Finally, I am troubled by what the majority’s opinion reveals about this court’s values when policing the District’s bar. As a court, we almost invariably disbar attorneys who have engaged in even the slightest reckless or intentional misappropriation of client funds. In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc). Even negligent misappropriation will result in “the usual sanction” of a six month suspension from the practice of law. In re Greenwald, 926 A.2d 169, 171 (D.C. 2007). That is too harsh a result, the majority concludes, when prosecutors intentionally suppress evidence in violation of the Constitution and thereby secure felony convictions resulting in years of unjust imprisonment. I disagree and dissent.

Harm

Dobbie and Taylor, through their actions, sent two men to prison for years on the basis of unreliable testimony, and prevented them from being able to effectively challenge that testimony at trial. Perhaps they did so unintentionally, but we take a ruthless approach to even unintentional accounting errors. And here we are not talking about money that can be restored. We are talking about “the accuracy of the mechanism by which our society deprives individuals of their freedom and their lives.” We are talking about four and a half years of people’s lives, which stood to be even longer had respondents’ misconduct not fortuitously come to light despite their efforts to keep it concealed.

The case was argued on May 24, 2022. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2023/12/supervisor-inadequate-guidance-reduces-sanction-for-disclosure-violation.html

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