In the Matter of Disciplinary Proceedings Against Sharon A. Riek, Attorney at Law: Office of Lawyer Regulation, Complainant-Appellant, v. Sharon A. Riek, Respondent-Respondent.
No. 2011AP1049-D
Supreme Court of Wisconsin
Decided July 23, 2013
2013 WI 81 | 834 N.W.2d 384
Oral argument February 26, 2013.
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For
For the respondent-respondent, there was a brief by Martin E. Kohler and
¶ 1. PER CURIAM.
The Office of Lawyer Regulation (OLR) appeals a referee‘s decision recommending the court dismiss a disciplinary complaint alleging that Attorney Sharon A. Riek violated
¶ 2. Attorney Riek is an assistant district attorney in Racine County. She was licensed to practice law in Wisconsin in 1986. In 1999 Attorney Riek accepted a consensual private reprimand for failing to correct a false statement made to a court by her witness. Private Reprimand, No. 1999-25.
¶ 3. This disciplinary matter stems from Attorney Riek‘s allegedly belated disclosure of certain information obtained during the prosecution of Tyrone Smith (Smith).
¶ 4. On August 18, 2008, Smith was arrested for possession of marijuana discovered in his vehicle during a traffic stop. At the time, Smith was on extended supervision for possession with intent to deliver cocaine. Isaiah Simpson (Simpson) was a passenger in the vehicle during the stop.
¶ 5. On August 19, 2008, the Racine County district attorney‘s office charged Smith with possession of marijuana as a repeat offender. Attorney Riek was assigned to prosecute Smith‘s case. Smith‘s supervising agent, Agent Leah Zeni, began proceedings to revoke Smith‘s extended supervision. Attorney Mark Lukoff was appointed to represent Smith in both the revocation proceeding and the marijuana possession case.
¶ 6. On August 22, 2008, Simpson, the passenger in the vehicle, informed Agent Zeni that the marijuana found in the vehicle belonged to him, not to Smith. Agent Zeni told Simpson to report this information to the Racine County district attorney‘s office and advised Attorney Lukoff of Simpson‘s confession.
¶ 7. Meanwhile, on September 4, 2008, the circuit court held a preliminary hearing in Smith‘s marijuana possession case. After that hearing, Smith‘s attorney filed a demand for discovery and inspection with the court and served it upon Attorney Riek. The discovery demand included a routine demand that the State “[d]isclose to defendant any exculpatory evidence.” See
¶ 8. Attorney Lukoff received a copy of Simpson‘s statement to Agent Zeni before Smith‘s revocation proceeding. At Smith‘s revocation hearing on October 15, 2008, Agent Zeni entered Simpson‘s confession into evidence. Smith based his defense at the revocation hearing on Simpson‘s confession.
¶ 9. On October 27, 2008, the administrative law judge (ALJ) declined to revoke Smith‘s extended supervision, stating, “Based on Mr. Simpson‘s statement, I find insufficient credible evidence to attribute the marijuana to Mr. Smith.”
¶ 10. Agent Zeni appealed the ALJ‘s decision, stating, inter alia:
[A]fter providing his statement, [Isaiah] Simpson was instructed by this agent to go to the Racine District Attorney‘s office
and provide a signed affidavit admitting the marijuana in the vehicle was his. At the time of the Final Revocation hearing, Mr. Simpson failed to go to the Racine District Attorney‘s office . . . .
The Division of Hearing and Appeals sustained the ALJ‘s decision on November 13, 2008, noting that “[i]t is also clear that Smith‘s friend, [Isaiah] Simpson, brought the marijuana into Smith‘s car.”
¶ 11. In early November 2008, Simpson did go to the Racine County district attorney‘s Office where he met with District Attorney Michael E. Nieskes (D.A. Nieskes) and informed D.A. Nieskes that the marijuana found in Smith‘s vehicle belonged to him, not to Smith. As a result of that November meeting, D.A. Nieskes wrote a note (the Simpson Note) that stated, “[Isaiah] Simpson 1010 Park Ave 637-9029 states that the dope is his not Tyrone [Smith‘s].”
¶ 12. The Simpson Note was not a sworn statement. It was unsigned and undated. Later that morning, D.A. Nieskes told Attorney Riek about his meeting with Simpson and gave her the Simpson Note. Attorney Riek recalls being advised of Simpson‘s statement to D.A. Nieskes but she does not recall receiving the Simpson Note.
¶ 13. On November 7, 2008, Attorney Riek asked the Racine County sheriff‘s department to investigate Simpson‘s statement that the marijuana belonged to him. The Racine County sheriff‘s department had difficulty contacting Simpson.
¶ 14. Meanwhile, Attorney Lukoff‘s own investigator was also trying to contact Simpson. In January 2009 Attorney Lukoff‘s investigator spoke with Simpson. Simpson told Attorney Lukoff‘s investigator that the marijuana was his, not Smith‘s.
¶ 15. On February 5, 2009, Attorney Lukoff sent Attorney Riek a witness list that included Simpson. Attorney Lukoff enclosed Simpson‘s written statement to Agent Zeni and the defense investigator‘s summary of the January meeting with Simpson.
¶ 16. On March 26, 2009, Attorney Lukoff personally met with Simpson in preparation for Smith‘s trial. During this meeting, Attorney Lukoff learned, for the first time, that Simpson had met with D.A. Nieskes. Attorney Lukoff promptly sent a letter to Attorney Riek, by facsimile, asking for a copy of any information Simpson provided to D.A. Nieskes.
¶ 17. The next day, March 27, 2009, now four days before Smith‘s trial, Attorney Riek sent Attorney Lukoff a copy of the Simpson Note. Her cover letter included the statement that, “[a]s I indicated to you earlier today, based upon this note, I sent a request to the Racine County Sheriff‘s Department to have them follow up on this information and Isaiah Simpson declined to cooperate and provide a statement.” Attorney Riek later told the OLR that she found the Simpson Note among unrelated papers on her desk on or about March 26, 2009.
¶ 18. Smith‘s trial was scheduled to commence on March 31, 2009. When Simpson arrived for the trial that day, Attorney Riek directed a law enforcement officer to interview him. Simpson again admitted the marijuana was his, not Smith‘s.
¶ 19. Attorney Riek then moved to dismiss Smith‘s case. The criminal charges against Smith were dismissed on March 31, 2009, prior to the commencement of trial.
¶ 20. On May 9, 2011, the OLR filed a disciplinary complaint against Attorney Riek alleging that by failing to promptly provide the defense with exculpatory information
¶ 21. Referee Michael Dubis was appointed and discovery ensued. Both parties moved for summary judgment.
¶ 22. On August 6, 2012, Referee Dubis issued a report recommending summary judgment in favor of Attorney Riek. The referee found that the exculpatory information at issue was already in possession of the defense at least as early as October 15, 2008, the date of Smith‘s revocation hearing, some five months prior to trial. Notably, the referee determined that a prosecutor‘s ethical duty under
¶ 23. The OLR appeals. The OLR maintains that Attorney Riek violated two separate legal standards,
¶ 24. We will affirm a referee‘s findings of fact unless they are clearly erroneous. In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43, 675 N.W.2d 747. We review a referee‘s conclusions of law de novo. Id.
¶ 25. We first consider whether Attorney Riek violated
¶ 26. Federal court decisions and decisions of this court establish constitutional minimums related to a prosecutor‘s pre-trial disclosure obligations. In Brady the U.S. Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
Subsequent decisions clarify that evidence is “material . . . if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Thus, simply “showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more.” Kyles v. Whitley, 514 U.S. 419, 437 (1995); see also Bagley, 473 U.S. at 675 n.7 (“[A] rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible
¶ 27. Attorney Riek is accused of violating
A prosecutor, other than a municipal prosecutor, in a criminal case or a proceeding that could result in the deprivation of liberty shall:
(1) make 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, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; . . . .
The parties agree that because
¶ 28. The OLR contends that a prosecutor‘s ethical duty of disclosure under
¶ 29. We reject the OLR‘s proffered interpretation of
¶ 30. In 2009 the ABA‘s Standing Committee on Legal Ethics and Professional Responsibility rendered Formal Opinion 09-454 (hereinafter “ABA Opinion“). This ABA Opinion, issued after we adopted
¶ 31. As to materiality, the ABA Opinion notes:
A prosecutor‘s constitutional obligation extends only to favorable information that is “material,” i.e., evidence and information likely to lead to an acquittal. . . . Rule 3.8(d) does not implicitly include the materiality limitation recognized in the constitutional case law. The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility.
Id. at 2 (footnote omitted). The ABA Opinion also declares that disclosure must be made “as soon as reasonably practical” once the information is known to the prosecutor. Id. at 6.
¶ 32. The OLR urges us to follow this reasoning and to explicitly construe
¶ 33. The ABA Opinion, however, has not been universally adopted; indeed, it has received some pointed criticism. See, e.g., Schimpff, supra at 1767. Some jurisdictions explicitly align their ethics rules on prosecutorial disclosure with federal constitutional standards. See, e.g., D.C. Rules Prof‘l Conduct R. 3.8 cmt. 1 (2012) (clarifying that their comparable ethics rule “is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes, and court rules of procedure.“); see also N.C. Rules Prof‘l Conduct 3.8(d) (2012) (requiring timely disclosure of “all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions.“).
¶ 34. After the issuance of the ABA Opinion, several jurisdictions rendered decisions construing their equivalent of
¶ 35. We do the same here. Adopting the OLR‘s interpretation would impose inconsistent disclosure obligations on prosecutors. Indeed, the ABA Opinion describes several hypothetical scenarios where a prosecutor could fully comply with the constitutional obligations the Court has outlined under Brady, but still be in violation of the Model Rule.4 Disparate standards are likely to generate confusion and could too easily devolve into a trap for the unwary.
¶ 36. Under conflicting standards, prosecutors would face uncertainty as to how to proceed and could face professional discipline for failing to disclose evidence even when applicable constitutional law does not require disclosure of the same evidence. The practical effect—disclosing evidence to avoid disciplinary sanctions—could effectively expand the scope of discovery
¶ 37. We turn to the OLR‘s alternative claim that Attorney Riek‘s conduct nonetheless violates
By the time the [Simpson] Note was created in early November of 2008, the information found in this note was cumulative and immaterial as the note contained information that was already in possession of the defense at least as early as October 15th, 2008, about 5 months prior to trial.
The OLR objects to this determination, stating:
First, the plain language of the ethical rule does not contain an exception for cumulative evidence. Second, it overlooks an additional piece of information at issue: that Simpson had made a confession to the District Attorney himself. It was this piece of information which made District Attorney Nieskes a potential witness in the criminal case against Smith, and needed to be disclosed. (Emphasis in original.)
¶ 38. The OLR is correct that
¶ 39. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, 473 U.S. at 682. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. We have stated:
[With this test,] the reviewing court may consider directly any adverse effect that the prosecutor‘s failure to respond might have had on the preparation or presentation of the defendant‘s case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course
that the defense and the trial would have taken had the defense not been misled by the prosecutor‘s incomplete response.
State v. Harris, 2004 WI 64, ¶ 14, 272 Wis. 2d 80, 680 N.W.2d 737 (quoting Bagley, 473 U.S. at 683).
¶ 40. The OLR emphasizes the fact that the confession at issue was made to a district attorney. Under the facts presented, we deem this a distinction without
¶ 41. Nor do we perceive any adverse impact on the defense. The OLR also offers a rather tortured scenario in which it posits that if Attorney Riek had failed to disclose to the defense the fact of Simpson‘s confession to D.A. Nieskes there might have been an adverse result for Smith if Simpson or other defense witnesses to whom Simpson confessed failed to appear for trial. The reality, however, is that before trial, Attorney Riek did disclose to the defense the Simpson Note and confession to D.A. Nieskes. Simpson did appear at trial, whereupon Attorney Riek directed her investigator to question him. Upon receiving confirmation that Simpson still accepted responsibility for the marijuana, Attorney Riek moved for dismissal of the charges against Smith. On these facts, there is no evidence of record that Smith was adversely affected by any arguable delay in disclosing one of several substantively identical confessions to the defense four days in advance of trial. We therefore accept the referee‘s conclusion that Attorney Riek did not violate
¶ 42. The OLR also accuses Attorney Riek of violating a rule of criminal procedure that imposes disclosure obligations on prosecutors.
Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
. . .
(h) Any exculpatory evidence.
It is professional misconduct for a lawyer to violate a statute regulating the conduct of lawyers.
¶ 43.
¶ 44. The record is devoid of evidence that Attorney Riek‘s alleged delay in producing the Simpson Note and disclosing the fact of Simpson‘s discussion with D.A. Nieskes was intentional or done for any strategic purpose. Mindful of the voluminous caseloads managed by most prosecutors, we are unwilling to rule that Attorney Riek‘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.
¶ 45. We note, moreover, that even where a prosecutor does fail to disclose exculpatory evidence in violation of Brady, a single
¶ 46. We accept the referee‘s conclusion that Attorney Riek‘s conduct did not violate
¶ 47. IT IS ORDERED that the disciplinary complaint filed against Attorney Sharon A. Riek is dismissed. No costs.