Hello and welcome to this Ethics Alert blog which will discuss the recent Ohio Supreme Court opinion imposing a stayed suspension on an ex-prosecutor who created a fictitious Facebook account to contact alibi witnesses in a criminal case that he was prosecuting. The case is Disciplinary Counsel v. Brockler, Slip Opinion No. 2016-Ohio-657 (February 26, 2016. The opinion is here: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-657.pdf.
According to the opinion, the lawyer doubted the alibi witnesses’ stories and:
“Recalling a Facebook ruse he had used in a prior case, Brockler planned to create a fictitious Facebook identity to contact Mossor. He attempted to obtain assistance from several Cleveland police detectives and the chief investigator in the prosecutor’s office, but they were not available. Believing that time was of the essence, Brockler decided to proceed with the Facebook ruse on his own approximately one hour after he heard the recording of Mossor and Dunn’s conversation. He created a Facebook account using the pseudonym “Taisha Little, a photograph of an African-American female that he downloaded from the Internet, and information that he gleaned from Dunn’s jailhouse telephone calls. He also added pictures, group affiliations, and ‘friends’ he selected based on Dunn’s telephone calls and Facebook page. After creating the Facebook alias, he contacted the alibi witnesses, told them he was romantically involved with the defendant, and discussed the alibi as if it were false.”
The lawyer testified that he made copies of the communications and placed them in a file before deleting the Facebook account. He stated that he intended to give copies to the defense; however, he did not provide them and copies were never found in the prosecutor’s file. The lawyer told the prosecutor who was taking over the case while he was on a medical leave that he might become a witness since the alibi witnesses said they would not support the defendant’s alibi. He did not tell the new prosecutor how he obtained that information.
A police detective later discovered the Facebook communications and provided them to the new prosecutor, who provided them to the defense. The case was transferred to the Ohio Attorney General’s office for prosecution and the lawyer was terminated. Although the lawyer admitted that his actions violated the Bar rules prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation, he argued that an exception should be made for “prosecutorial investigation deception.” The Ohio Board of Professional Conduct rejected that argument, and the Ohio Supreme Court agreed with the Board’s conclusion.
The opinion said the lawyer’s conduct was “an isolated incident in an otherwise notable legal career” and imposed a one year stayed suspension which will remain stayed unless the lawyer engages in further misconduct. A dissenting justice stated: “I cannot implicitly condone the imposition of a negligible sanctions for his egregious misconduct”, the lawyer had shown a “glaring disdain” for his ethical responsibilities, and he should receive an indefinite suspension.
Bottom line: This is an example of a prosecutor who went too far in zealously prosecuting a criminal defendant and was disciplined as a result, even though it appears that he believed that he was engaging in the deception to achieve the right result. With regard to compliance with the Bar rules, the end will never justify the means, and all lawyers need to be wary of going too far and falling down a slippery slope in their representation, whether it is on behalf of the government or individual clients.
Be careful out there.
If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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