Hello and welcome to this Ethics Alert blog which will discuss the recent disciplinary opinion of the Oklahoma Supreme Court imposing a 180 day suspension on a criminal prosecutor who engaged in “reprehensible” conduct over a 20 year period in 2 related death penalty prosecutions. The case isState ex rel. Oklahoma Bar Association v. Miller, 2013 OK 49Case Number: SCBD-5732 (Okla. SCJune 25, 2013). The opinion is here: https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=470358
According to the majority opinion, the lawyer was assigned to prosecute 2 death penalty cases and, over a period of 20 years, inter alia, engaged in multiple acts of obstructing access to evidence and failure to disclose exculpatory information. After being convicted, both defendants appealed to the Oklahoma Court of Criminal Appeals and their direct appeals were denied. “Relief was also sought in the federal courts and it culminated in the 10th Circuit Court of Civil Appeals’ opinion in Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009), which resulted in the reversal of both convictions. The basis of this reversal was the respondent’s ‘egregious conduct’ as prosecutor. The Oklahoma County District Attorney’s office has declined to retry Douglas and Powell.
“The complainant, Oklahoma Bar Association, charged the respondent, Robert Bradley Miller, with five counts of professional misconduct associated with the attorney’s alleged conduct concerning events before, during, and after two murder trials which he prosecuted as an Assistant District Attorney for the Oklahoma County District Attorney’s office. The prosecutions stemmed from a drive-by shooting on June 24, 1993, in which a fourteen year old girl was murdered and a gang member was injured by alleged rival gang members near the Ambassador Court Apartments in Oklahoma City.“
With regard to the discipline imposed, the majority opinion states: “This Court is the sole arbiter of bar discipline. We are free to attribute as much weight to the trial panel’s recommendations as we see fit. Under the facts presented, appropriate discipline falls somewhere between a private reprimand and a year suspension. Most recently, private reprimands have involved: failure to respond to grievances, failure to account for client funds and communicate with clients, selling marital property and concealing it, pleading nolo contendere with pointing a firearm, entering a plea to child abuse by injury. Cases of prior public censure have fallen into categories such as sexual contact or inappropriate sexual advances, dismissals of client’s cases, or failing to do anything on a client’s behalf or other types of client’s case mismanagement.”
“We must recognize that the respondent was acting under the direction, supervision, and policies of the then elected District Attorney. Responsibility for the respondent’s conduct and trial tactics falls partially to the District Attorney as the chief administrator of the office. Although he exercised his rights to object and disagree to the charges, the respondent has also been fully cooperative with the Bar Association in this lengthy and tedious process. Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension.”
“Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though Miller’s conduct may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, Miller’s actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place. Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.”
“While the respondent’s conduct in Count IV may not have been wilful or active concealment, his actions did result in violations of obstructing access to evidence, timely disclosure of evidence, and conduct which was prejudicial to the administration of justice. The respondent stands exonerated of the allegations made against him in Count V. Considering comparative disciplinary matters, the time span of the conduct in relation to the disciplinary proceeding, the respondent’s cooperation and lack of prior discipline, we suspend the respondent for 180 days and require him to pay $12,834.00 towards the costs of these proceedings.”
According to the strong dissent: “Whether it was ‘decades ago’ or today, no attorney should ever commit the ‘reprehensible’ conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice (emphasis supplied). I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.”
Bottom line: This 180 day suspension in this case is somewhat shocking considering the fact that the lawyer was a criminal prosecutor who engaged in misconduct in a death penalty case and the majority opinion characterized the conduct as “reprehensible” and involving “multiple acts of deceit” over a 20 year period.
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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