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suspending the prosecutor for six months for knowingly failing to disclose during the course of a trial the existence of evidence that tended to negate guilt, mitigate the degree of the offense or reduce the punishment
Summary of this case from People v. PautlerOpinion
No. 92-2536
Submitted April 7, 1993 —
Decided June 16, 1993.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 92-32.
On June 22, 1992, relator, Office of Disciplinary Counsel, filed a complaint against respondent, Dwayne K. Jones of Cuyahoga Falls, Ohio, Attorney Registration No. 0038867. Among the violations alleged were DR 7-102(A)(3) (concealing or knowingly failing to disclose that which he or she is required by law to reveal), 7-103(B) (failing to timely disclose the existence of evidence that tends to negate guilt, mitigate the degree of the offense, or reduce the punishment) and 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice). These charges were heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on November 6, 1992.
The relevant facts have been stipulated and have also been adduced by respondent's testimony and deposition which were before the panel. Respondent is an Assistant Prosecutor for the city of Cuyahoga Falls. In early 1991, respondent tried a domestic violence case in which the defendant was accused of attacking his ex-wife.
At trial, respondent introduced a medical bill substantiating that the victim had sought medical treatment after the alleged incident. Defendant's counsel, who argued that the victim's injuries arose from a mutual affray and not an unprovoked attack, introduced two photographs depicting minor injuries to the defendant. The proceeding ultimately ended in a mistrial.
In April 1991, the case was tried for a second time. Almost immediately, it was discovered that the two photos and the bill were missing from the case file. When asked by the trial judge about the exhibits' whereabouts, respondent replied that he did not know.
During the lunch recess, respondent found the exhibits in another office. Rather than take the exhibits, which were inside a plastic sleeve, directly to the court, respondent gave them to a deputy clerk of courts. Respondent specified the case file to which they belonged and told the deputy clerk that the case was still being tried. Unaware that the sleeve contained exhibits, the deputy clerk did not deliver the items to the courtroom.
Respondent did not tell the judge or defense counsel, once trial resumed, that the exhibits had been found. Respondent remained silent, even though defense counsel repeatedly referred to the exhibits during the course of his presentation.
Shortly before closing arguments, the judge's bailiff obtained the exhibits from the deputy clerk. The judge, as a corrective measure, permitted admission of the exhibits without proper foundation and allowed defense counsel to refer to the exhibits during closing argument. Defendant was nonetheless found guilty and the Ninth District Court of Appeals affirmed.
In his deposition, respondent testified that he did not tell anyone that he had found the exhibits because he felt that he had done his job by giving them to the deputy clerk. Respondent conceded, however, that his relationship with that particular defense counsel was acrimonious and that, had other counsel been involved, he probably would have revealed his discovery. He stated that, in retrospect, he erred in not informing the court. Respondent further stipulated to having violated the aforementioned Disciplinary Rules.
Respondent also introduced letters and witnesses attesting to his character. Both witnesses testified to respondent's conscientiousness and diligence.
At the hearing's conclusion, both relator and respondent requested a public reprimand. After considering the evidence, the panel concluded that respondent had violated DR 7-102(A)(3), 7-103(B) and 1-102(A)(5). Characterizing the prosecutor as "the standard bearer" of "truth and fairness," the panel found that respondent's "deceptive conduct * * * flies in the face of his public mandate to protect the rights of all citizens." It, therefore, recommended a six-month suspension from the practice of law.
This rule was inadvertently denominated "DR 1-105(A)(5)" by the panel and the board.
The board adopted the findings but not the recommendation of the panel. Declaring that "[t]he bench, bar and public must know that this fraud undermines our justice system and that prosecutors are fully accountable for such actions," the board recommended a one-year suspension. Objecting to this recommendation, respondent reiterated his request for a public reprimand.
J. Warren Bettis, Disciplinary Counsel, and Alvin E. Matthews, Assistant Disciplinary Counsel, for relator.
Baker, Chapman Diefenbach and Peter T. Cahoon, for respondent.
We adopt the findings but not the recommendation of the board. Respondent is hereby suspended from the practice of law in Ohio for six months. Costs taxed to the respondent.
Judgment accordingly.
MOYER, C.J., A.W. SWEENEY, WRIGHT and F.E. SWEENEY, JJ., concur.
DOUGLAS, J., dissents with opinion.
RESNICK, J., dissents and would follow the panel's recommendation that respondent be suspended from the practice of law for one year.
PFEIFER, J., dissents and would suspend respondent for two years, but would stay the suspension during respondent's good behavior.
I respectfully dissent. This young man made a mistake. Haven't we all? To make an example of respondent so that the message is sent that "* * * prosecutors are fully accountable for such actions" is not, in my judgment, justice.
I would suspend respondent for a period of six months, and I would stay the suspension during good behavior.