In a recent case before the Utah Supreme Court, the court affirmed a six month suspension from the practice of law of a former Davis County prosecutor for violation of the Utah Rules of Professional Conduct. Specifically, the prosecutor was alleged to have violated Rule 3.3 and Rule 3.8, which set forth an attorney’s duty of candor toward a tribunal and a prosecutor’s duty to timely disclose exculpatory evidence or information to a defendant, respectively. While the Utah Supreme Court agreed that the prosecutor had violated Rule 3.8, the court disagreed that the prosecutor violated Rule 3.3, overturning the prosecutor’s one month suspension imposed for violating Rule 3.3.
Prosecutor Charged with Violations of Rules 3.3 and 3.8
In In re: Tyler James [the prosecutor], a former Davis County prosecutor from 2007 through 2010 was charged with two separate violations of the Utah Rules of Professional Conduct. The first charged violation alleged the prosecutor made “a misstatement of fact in violation of rule 3.3,” arising “out of a 2009 proceeding involving a woman on probation for a conviction.” The other charged violation alleged that the prosecutor failed “to make a timely disclosure of exculpatory evidence to the defense under rule 8.3,” in a “2010 felony robbery case.”
Utah Supreme Court Overturns Rule 3.3 Violation and Corresponding Thirty-Day Suspension
As it relates to the Rule 3.3 violation, at a hearing defense counsel asserted that his client had been charged probation fines that were excessive. In response, the trial judge set a hearing on the issue. In the interim, an investigator from the Davis County Attorney’s Office investigated the alleged excessive fines. The investigator collected receipts from the probation agent and recorded that data in a spreadsheet, which totaled $3,797.
At the subsequent hearing, the prosecutor requested a sidebar with the judge, where the prosecutor told the judge that he had a spreadsheet “showing that the probationer had paid $6,000.” When questioned further on the point, the prosecutor said “his boss, the Davis County Attorney, did not want that information disclosed.”
The prosecutor “was subsequently charged with misstating the facts to the court in connection with” the aforementioned proceeding. In the lower disciplinary proceedings, the district court found that the prosecutor:
[H]ad misstated the facts in claiming he had a spreadsheet showing that the probationer had paid $6,000 to the probation agent and in stating that the Davis County Attorney preferred not to have that information disclosed. Specifically, the court concluded that there was no spreadsheet reflecting a payment of $6,000 at the time of the underlying hearing.
However, in so finding, “the [district] court found that the OPC [Office of Professional Conduct] had not established ‘intentional misrepresentation.’” Rather, the district court “concluded that ‘[the prosecutor’s] statement was a misstatement that a reasonably diligent inquiry would have avoided.’”
The lower district court also made a further finding that the prosecutor had “made a separate untrue statement to the trial judge in the underlying hearing in 2009.” The district court’s finding came despite that fact that it admitted that “OPC had not asserted a separate charge on the basis of that statement, the district court found that ‘it [was] probative’ of [the prosecutor’s] state of mind—that his “actions were knowing or reckless at the time” of the underlying hearing. On those combined grounds, the district court “found that [the prosecutor] had violated rule 3.3,” and “imposed a thirty-day suspension.”
Prosecutor did not “Knowingly” Misstate Facts
In addressing the Rule 3.3 violation, the Utah Supreme Court recounted that Rule 3.3 “provides that ‘[a] lawyer shall not knowingly: (a)(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’” In light of the rule’s language, the prosecutor challenged that he did not possess the proper state of mind to sustain a violation of Rule 3.3. However, the OPC asked the court “to interpret the rule to encompass reckless misstatements made without any plausible basis in fact.” The Utah Supreme Court disagreed with the OPC’s position, reversing the finding that the prosecutor violated Rule 3.3. There, the court concluded:
Rule 3.3(a)(1) plainly requires that any misstatement be made “knowingly.” And the district court never found actual knowledge. In the findings of fact in the sanction order, the district court found that OPC had not established “intentional misrepresentation.” Instead it concluded that “[the prosecutor’s] statement was a misstatement that a reasonably diligent inquiry would have avoided.” The court’s conclusions of law, moreover, state that [the prosecutor’s] misstatement was “knowing or reckless.” And when pressed by [the prosecutor] in open court, the district court indicated that he had found only “reckless misrepresentation.” The district court accordingly did not find that [the prosecutor’s] misstatement was knowing. And rule 3.3(a)(1) requires proof that a misstatement was made knowingly. So it was error for the district court to conclude that there was a violation of rule 3.3 in the absence of a finding of a knowing misstatement. Alternatively, the district court erred in implicitly treating a reckless misstatement as the legal equivalent of a knowing one. It did so in concluding that [the prosecutor’s] misstatement was “knowing or reckless,” and in basing its determination of a violation of rule 3.3 on the finding that [the prosecutor] could have avoided making a misstatement if he had undertaken a “reasonably diligent inquiry.” This too was error. Our rules do not treat knowledge and recklessness as equivalents. They state that “‘[k]nowingly,’ ‘known’ or ‘knows’ denotes actual knowledge of the fact in question.” We reverse on the basis of this definition. Actual knowledge is distinct from recklessness. And our rules require actual knowledge to sustain a charge under rule 3.3. So we reverse on the ground that the district court conflated knowledge and recklessness and did not find that [the prosecutor] made a knowing misstatement.
Further, the Utah Supreme Court, while acknowledging “a plausible basis for the district court’s analysis in Comment 3 in the Advisory Committee Notes to rule 3.3,” repudiated “Comment 3 in the Advisory Committee Notes to rule 3.3, in order “to avoid confusion going forward in cases like this one, in which the district court understandably appears to have relied on this comment.”
Utah Supreme Court Affirms Rule 3.8 Violation and Corresponding Six-Month Suspension
Turning to the issue of the Rule 3.8 violation, the allegations giving rise to the violation stemmed from a 2010 felony robbery case. The main focus on the prosecutor’s actions as it related to the alleged Rule 3.8 violation centered on the prosecutor’s interactions with eyewitnesses. According to the Utah Supreme Court’s opinion, about ten days before the trial was to commence, the prosecutor met with several witnesses to discuss the upcoming trial. At the end of each meeting, the prosecutor showed the witness a picture of the defendant and asked the witness if he or she would be able to identify the defendant as the robber at trial. All of the witnesses indicated that they would be able to make the identification.
Subsequently, the prosecutor met with defense counsel and told him that all of the “witnesses had ID’s [the defendant].” Defense counsel did not inquire of the prosecutor regarding the identifications, and the prosecutor did not disclose the photo that he had shown to the witnesses to defense counsel.
At trial, two of the witnesses gave contradictory testimony regarding the photo that the prosecutor had showed them during the meeting prior to trial. One witness said he had never been shown the photo, while the other admitted to having been shown the photo. In light of the conflicting testimony, defense counsel moved for a mistrial. During a sidebar discussing the motion for mistrial, the prosecutor did not disclose to the judge that the photo of the defendant had also been shown to the other witnesses. However, during a recess that followed the aforementioned sidebar, the prosecutor told defense counsel that he had shown the photo to the other witnesses. Defense counsel then told the court, and a mistrial was declared.
In the lower disciplinary proceedings, “the district court found that ‘[w]hen [the judge] indicated a willingness to proceed on the second charge if the victims had not seen the photographs, [the prosecutor] did not volunteer at the time that he had shown the photos to the other victims.’” And on that basis the district court concluded that “[the prosecutor] intentionally concealed the fact of the photo show from the defense.” As a result, the district court imposed a six-month suspension against the prosecutor.
Prosecutor did not “Timely” Disclose Exculpatory Information to Defense
In analyzing the Rule 3.8 violation, the Utah Supreme Court set forth that Rule 3.8 requires a prosecutor to “[m]ake timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” The prosecutor primarily challenged the Rule 3.8 violation on the grounds he had not violated the rule “by not disclosing to defense counsel that he had shown a photograph of the defendant to eyewitnesses in the underlying robbery cases (without showing any other photographs).” Additionally, the prosecutor argued that the district court erred in finding he violated Rule 3.8 knowingly, and that the imposition of a six month suspension was disproportionate.
The Utah Supreme Court held that the prosecutor’s disclosure was not timely, concluding:
He knew before trial that he had shown the defendant’s photograph (and no other photographs) to the eyewitnesses of the two robberies. And he failed to disclose that fact “as soon as practicable” thereafter—in advance of trial, at a time necessary to allow “the defendant to adequately prepare his defense.”
On the issue of the prosecutor’s state of mind, the court stated that “[t]here is ample evidence in the record to support the district court’s findings as to Larsen’s state of mind in failing to make timely disclosures under rule 3.8(d),” and “[s]tate of mind, moreover, is the kind of factual question that the district court is in the best position to assess. We will not reverse a decision on state of mind absent clear error, and we see none here.”
Utah Supreme Court Finds Six-Month Suspension is Proper
Finally, the Utah Supreme Court addressed the propriety of the six-month suspension. There, the court rejected requests by the OPC and the Utah Association for Criminal Defense Lawyers’ for a harsher suspension, but also rejected the prosecutor’s plea for a lesser suspension:
But we nonetheless affirm the six-month suspension imposed in this case. We do so on three grounds: (1) a suspension from the practice of law, even for six months, is a serious penalty for a practicing lawyer; (2) there are at least some mitigating circumstances in this case; and (3) the precedents involving sanctions against prosecutors under rule 3.8(d) include a few suspensions for six months but none for any greater period, and no disbarments.
* Photo Cred.: wtoutiao.com