Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Attorney Discipline Board opinion which dismissed ethics charges against lawyer who, inter alia, submitted a fabricated videotape and elicited false testimony at a criminal trial. The disciplinary matter is In re: Eric Anthony Wright, 13-DB-003 (12/4/14). The opinion is here: https://www.ladb.org/DR/handler.document.aspx?DocID=8323.
According to the disciplinary board’s opinion, “in 2008 (the lawyer) was retained to represent Ray Boudreaux who was charged with five counts of attempted second degree murder arising from a fight outside a French Quarter club on September 16, 2007 which resulted in at least five people being stabbed.” There was a surveillance videotape of the incident which was produced by the prosecution and admitted at the trial.
A defense investigator had obtained a videotape from the Myspace page of one of the victims made in January 2007 and involved some of the same participants as the September 2007 incident. The client/defendant told the lawyer that he had expertise in digital data transfer techniques and the lawyer told him to prepare the Myspace footage for presentation at the trial. The defendant then made a videotape from the Myspace footage. The lawyer produced the Myspace videotape at the trial and, over the prosecutor’s objection, the judge allowed him to show the fabricated videotape to the jury. The lawyer also put a witness on the stand who falsely testified that the videotape showed the September 2007 incident.
“In response, the state produced a rebuttal witness, Ashley Barriente, who brought a cell phone containing the original footage from the January 2007 fight to the courtroom and showed the original video to the court, the lawyers and jury. She testified that her sister had taken the footage on her (Barriente) cell phone in the French Quarter on January 13, 2007 – nine months before the incident at issue took place.”
“In his sworn statement to (the office of disciplinary counsel), convened after a complaint was filed against him alleging his complicity in suborning perjury and foisting knowingly false physical evidence on the court and the jury, the Respondent insisted that once he learned that the defense video No. 2 was a fabrication, he repudiated the film by deliberately refusing to offer it into evidence. Ultimately, he made no effort whatever to correct the record by acknowledging the false and misleading nature of the proffered video. To the contrary, during closing argument the respondent repeatedly and emphatically insisted that video No. 2 was an authentic depiction of the September 2007 fight to both the court and the jury, going so far as to pointedly attack the credibility of the video’s author, Ms. Barriente, as ‘un-credible’ in his argument to the jury.”
After a disciplinary hearing, the committee made factual findings that the disciplinary counsel’s witness who had testified at trial and identified the videotape was not credible and that the complainant/defendant had refused to testify and invoked his Fifth Amendment rights, which caused the disciplinary counsel to “abandon allegations related to the lawyer’s alleged knowledge and participation in the preparation of the video because of the lack of admissible evidence to support those allegations.”
The hearing committee made further findings of fact that the lawyer did not review the underlying three year old trial transcript in advance of his sworn statement in the disciplinary matter and that he had made misstatements about the events in both his sworn statement and in his response to the charges. The committee stated that the lawyer had “reason to suspect” that the evidence was false; however, he followed his client’s wish to use it.
Notwithstanding the above, the committee found that, although the lawyer had offered inconsistent statements, disciplinary counsel had failed to prove by clear and convincing evidence that the lawyer offered false evidence to the court, made a false statement of fact to the court, or failed to take reasonable measures “when faced with doubt about the authenticity of the evidence presented to the trial court”. Pursuant to same, the committee declined to find that the lawyer violated any Bar Rules and the disciplinary board deferred to the hearing committee’s credibility determinations and dismissed the disciplinary charges.
Bottom line: This is a very unusual disciplinary case on several levels. First, notwithstanding the fact that the lawyer admitted that he used a false videotape and elicited false testimony and had “reason to suspect” that the evidence was false and “made no effort whatever to correct the record by acknowledging the false and misleading nature of the proffered video”, these very serious allegations were dismissed. Second, although the committee found that the lawyer had offered inconsistent stories, it declined to find that he made false statements during the disciplinary investigation.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
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www.jac-law.com
