Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Wisconsin Supreme Court affirming the dismissal of disciplinary charges against a lawyer who was prosecuting the driver of a motor vehicle for possession of marijuana and did not provide an unsworn note written by a passenger in the vehicle admitting that he possessed the marijuana. The case is In the Matter ofSharon A.Riek, Case No. 2011AP1049-D, 2013 WI 81 (Supreme Court of Wisconsin,July 23, 2013). The opinion is online here: https://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=9975
According to the opinion, the criminal case involved a traffic stop and the arrest of the driver for possession of marijuana. The driver was on supervision for a prior cocaine possession and was criminally prosecuted for possessing the marijuana. A passenger in the vehicle (Isaiah Simpson) subsequently told law enforcement and prosecutors that the marijuana was his. The defense attorney was aware of Simpson’s confession and also had Simpson on his trial witness list; however, the prosecutor did not provide a copy of an unsworn note with his admission to the defense until four days before trial. After conducting an investigation, the prosecutor moved to dismiss the criminal charge and the charge was subsequently dismissed.
The opinion affirmed the dismissal of the disciplinary charges brought against the prosecutor for failing to disclose the note/admission and rejected the Wisconsin Office of Lawyer Regulation (OLR)’s contention that a “prosecutor’s ethical duty of disclosure (under the Wisconsin professional conduct rules) is broader than the constitutional requirements identified in Brady” and stated that “(t)he record is devoid of evidence that (the prosecutor)’s alleged delay in producing the Simpson Note and disclosing the fact of Simpson’s discussion with (another prosecutor) was intentional or done for any strategic purpose. Mindful of the voluminous caseloads managed by most prosecutors, we are unwilling to rule that (the prosecutor)’s disclosure of essentially duplicative information four days in advance of an apparently routine marijuana possession case ran afoul of her ethical and procedural obligations as a prosecutor.”
“We note, moreover, that even where a prosecutor does fail to disclose exculpatory evidence in violation of Brady, a single inadvertent failure does not necessarily constitute an ethical violation. Negligence and ethical misconduct are not necessarily synonymous. Most courts and official ABA policy agree that a single instance of “ordinary negligence” may trigger other adverse consequences and possible sanctions but does not usually constitute a disciplinary violation warranting public discipline.” The opinion then upheld the dismissal of the disciplinary charges.
Bottom line: This is most recent of multiple state disciplinary opinions this year which address potential violations of state Bar Rules by a prosecutor. This opinion dismissed the charges against a criminal prosecutor in Wisconsin stating that a “single instance of ‘ordinary negligence’ does not usually constitute a disciplinary violation warranting public discipline.” This result appears to be fair under the circumstances since the failure to produce the unsworn note appears to have been unintentional and the defense attorney already knew about the admission/exculpatory statement. As a former criminal prosecutor and Florida Bar prosecutor and now defense attorney, I am somewhat surprised that the Wisconsin disciplinary agency would choose to appeal the dismissal, and I do not necessarily agree with it.
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
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