The PEOPLE of the State of Colorado, Complainant, v. Pamela F. MUCKLOW, Respondent.
No. 00PDJ010
Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
Dec. 26, 2000.
35 P.3d 527
Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board members RICHARD P. HOLME, and HENRY C. FREY
Ross demonstrated a dishonest motive, knowing conversion of client funds, id. at 9.22(b); he engaged in a pattern of misconduct, id. at 9.22(c), committed multiple offenses, id. at 9.22(d); engaged in bad faith obstruction of the disciplinary proceeding by failing to comply with the rules of the disciplinary process, id. at 9.22(e); failed to acknowledge the wrongful nature of his misconduct, id. at 9.22(g), and Ross demonstrated indifference to making restitution, id. at 9.22(j).
Ross‘s conduct amounts to serious neglect of his three clients, and the knowing conversion of funds belonging to one client. Knowing conversion alone warrants disbarment. See In the Matter of Todd J. Thompson, 991 P.2d 820, 824 (Colo. 1999); Varallo, 913 P.2d at 12. Taken together with the serious neglect evident in the Bailey case and the failure to communicate and failure to account in the Tracy case, disbarment is required.
IV. ORDER
It is therefore ORDERED:
- KIRBY D. ROSS, registration number 22041 is DISBARRED from the practice of law effective thirty-one days from the date of this Order.
- Ross is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.
- As a condition of readmission, Ross must account to Tracy within twelve months from the date of this Order for the time he spent on Michael Tracy‘s case and refund any unearned fees.
- As a condition of readmission, Ross must repay The Check Center $351 plus interest from June 30, 1997 at the statutory rate within twelve months from the date of this Order.
- Within 90 days of the date of this Order, Ross shall return to the respective clients all files in his possession, custody or control regarding the Tracy or The Check Center matters.
Opinion issued by Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board members RICHARD P. HOLME, and HENRY C. FREY, both members of the bar. Hearing Board Member RICHARD P. HOLME dissents.
OPINION AND ORDER IMPOSING SANCTIONS
SANCTION IMPOSED: PUBLIC CENSURE
This matter was heard on July 13, 2000 before the Presiding Disciplinary Judge (“PDJ“) and two Hearing Board members, Richard P. Holme, and Henry C. Frey. Charles E. Mortimer, Jr., assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the “People“). David R. Brougham represented respondent. The People‘s exhibits 1 through 7 and respondent‘s exhibits A, C and D were admitted into evidence by stipulation. The PDJ and Hearing Board heard testimony from the People‘s witnesses George R. Buck, Jr. and Pamela F. Mucklow (“Mucklow“) and from respondent‘s witness Michael F. Green. Mucklow testified on her own behalf. The PDJ and Hearing Board considered the testimony and exhibits admitted into evidence, assessed the credibility of the witnesses and made the following findings of fact which were established by clear and convincing evidence:
Pamela F. Mucklow (“Mucklow“) has taken the oath of admission, was admitted to the bar of this court on October 14, 1994, and is registered upon the official records as attorney registration number 24710. Mucklow is subject to the jurisdiction of this court pursuant to
Following her admission to the bar, Mucklow spent three years seeking a full time attorney position. During the three-year period she served in various volunteer positions, worked as a guardian ad litem and as an intern with the City of Aurora and later with the City and County of Denver. Mucklow was employed as a deputy district attorney in the 22nd Judicial District beginning in July 1997. She had not previously been employed as a deputy district attorney.
The Skidmore Matter
In April 1998, John Skidmore (“Skidmore“) was charged with second degree assault in violation of
On May 14, 1998, the district attorney‘s office received a letter from the complaining witness in the Skidmore case in which the complaining witness recanted the version of events which provided a basis for the criminal charges. On Friday, May 15, 1998 in preparation for the preliminary hearing the following Tuesday, Mucklow for the first time looked at the outer jacket of the Skidmore file and noted that no plea bargain had been extended to Buck. She telephoned Buck‘s office and left a message stating that the prosecution would accept a plea of guilty to assault in the third degree. Buck communicated the plea bargain to his client on Monday, May 18, 1998. There were no further discussions regarding the plea bargain.
Also on Monday, May 18th, while reviewing the Skidmore file for the preliminary hearing in more detail, Mucklow discovered the letter from the alleged victim of the assault. In the letter, the alleged victim recanted her allegation that Skidmore had assaulted her. Mucklow immediately recognized that the letter constituted exculpatory evidence which had to be provided to defense counsel. However, she decided that the letter and its contents was not material to the issues before the court at the preliminary hearing and, therefore, neither disclosure of the letter nor its contents was necessary prior to that proceeding. Mucklow determined, in light of the circumstantial evidence she intended to offer, that the exculpatory letter from the alleged victim would not alter her approach to the preliminary hearing nor would it alter the outcome. Mucklow perceived the letter to be just one more instance of a domestic violence victim recanting an earlier version of events after the passage of time. It was Mucklow‘s belief that such recanting letters were often instigated by the person charged with the criminal offense and therefore concluded that Buck probably already knew about it.1 Notwithstanding her knowledge that the alleged victim had recanted her version of events, Mucklow neither modified nor withdrew the plea bargain she had previously extended to defense counsel.
At the appointed time on May 19, 1998, both Mucklow and Buck appeared in the courtroom for the preliminary hearing. Although Mucklow had sufficient time and opportunity to give Buck a copy of the letter or to advise him of it prior to the commencement of the preliminary hearing, she elected not to do so. Buck observed that the alleged victim was not present to testify. Consequently, he advised his client that without the victim‘s testimony, there was a strong likelihood that the case would not be bound over to district court on the felony charge of second degree assault but that it was probable that it would be bound over to county court on a misdemeanor charge of third degree assault, resulting in a county court trial to a jury of six rather than a district court
Immediately following the preliminary hearing, Mucklow followed the normal office routine relating to disclosure of exculpatory documentation and placed the letter in the discovery workbasket to be provided to defendant‘s counsel. The letter was processed by the office staff and sent to opposing counsel via first class mail.
On May 21, 1998, two days after the preliminary hearing, Buck received a copy of the alleged victim‘s letter via first class mail from the district attorney‘s office. Buck recognized that Mucklow had delayed disclosure of the letter until after the preliminary hearing and moved for sanctions against the prosecutor‘s office stating that Mucklow failed to make timely disclosure to the defense of all evidence or information known to the prosecutor that tended to negate the guilt of the accused or mitigate the offense. Buck‘s motion referred specifically to the disclosure obligations set forth in
At the time of these events, Mucklow understood her obligations under The Rules of Professional Conduct to be the same as her obligations under
The Stepbrother Sexual Abuse Matter
Five months after the Skidmore matter, Mucklow was assigned to a criminal matter involving an eleven-year-old girl who alleged that her stepbrother had sexually molested her. The stepbrother was charged with sexual assault on a child
A preliminary hearing was initially scheduled for September 22, 1998 and continued to October 21, 1998 upon Buck‘s motion to allow time to conduct discovery. Sometime during the morning of the preliminary hearing, Mucklow interviewed the alleged child victim with Donna Craig Rice (“Rice“), a volunteer victim advocate from the district attorney‘s office. Mucklow had arranged for Rice to be present for two reasons: to disclose information to defense counsel if necessary, and to lend support to the alleged victim. During the interview, the victim denied oral-genital contact ever occurring between herself and her stepbrother, did not remember it ever happening, and did not remember telling anyone it had occurred. She stated that there had been sexual conduct of a different nature—genital to genital contact and manual to genital contact—between herself and her stepbrother. Mucklow immediately recognized that the interview had generated information of an exculpatory nature which had to be disclosed to Buck. At a break in the interview, Mucklow spoke to Rice and asked her to prepare a memorandum reflecting the victim‘s altered version of events for disclosure to the defense.3 Mucklow did not,
Mucklow considered informing Buck of the changed victim version prior to the scheduled hearing but was concerned that the district attorney‘s office might be disqualified from the case if Buck called her as a witness during the preliminary hearing to testify regarding the interview. She discussed the matter with the District Attorney, Michael Green, and they agreed it would be better to avoid potential disqualification by disclosing the new version of events through direct examination of the child victim at the preliminary hearing rather than informing Buck of the change in the child victim‘s testimony prior to the hearing.4
The preliminary hearing was scheduled to start at 1:30 p.m. but was delayed until 2 p.m. Mucklow arrived early for the purpose of preparing the prosecution‘s other witness, David Sabin, for his testimony. In light of her knowledge that the child victim‘s version of events had changed and her concern that any changes would have to be adequately explained, Mucklow informed Sabin that she intended to elicit testimony from him that child victims of sexual abuse often alter their testimony. Buck arrived in the courtroom at 1:15 p.m. Mucklow, Rice and the child victim were also present at that time. Prior to the preliminary hearing, Mucklow did not disclose the child victim‘s change in testimony to Buck despite having the time and opportunity to do so.
During Sabin‘s testimony, Mucklow elicited testimony from him relating to child victims’ general propensity to alter their version of events over the passage of time. Thereafter, during direct examination of the child victim, Mucklow elicited some, but not all, of the different facts from the child victim which had been discussed in the morning interview: the child victim stated that there had been genital to genital and manual contact between herself and her stepbrother. She also said her stepbrother ... touched her vagina with his hands. The child victim was not asked and did not testify regarding her current denial of ever having had oral-genital contact with her stepbrother or her denial of ever telling anyone that she had. Upon hearing the new testimony, Buck objected and moved to strike the testimony stating that he had no prior knowledge of this evidence. The court overruled the objection and denied the motion to strike, but reprimanded Mucklow for not disclosing the testimony prior to the preliminary hearing:
Ms. Mucklow: Your Honor, I submit that I‘m fully aware of our obligation, that that was a discrepancy and I‘m fully aware of my obligation to report that to Mr. Buck. I don‘t understand that Rule 16 requires me to call him up on the telephone and tell him about something right away. . . .
The Court: The fact is that you learned something that is inconsistent with (sic) prior statement. You saw Mr. Buck here, you had to wait for me because I had to drive someone to the airport. You could‘ve said to him well, Mr. Buck, she said something different this morning to me that is in any of the reports, I think you should know about it, it is relevant for this case, as a professional courtesy, both as a professional courtesy and an ethical obligation . . . you have the duty to do that, and I don‘t think, Ms. Mucklow, you can argue fast and loose with Rule 16. You also have rules of professional conduct that [require] you to do that, and I think that‘s just a better course of action.
The Court: This came out as far as knowledge to you, what, four hours before the preliminary hearing—at least three hours before the preliminary hearing takes place. You know the fact is you can tell someone else in your office to relay that information to Mr. Buck, you see him outside, you can relay that information to him as well. I mean definitely as far as my attitude has
been on this, and what I‘ve viewed as the District Attorney‘s office at the time was playing fast and loose with the rules of ethical conduct and the rules of discovery. . . .
At the conclusion of the preliminary hearing, the court ruled that it could not find as a matter of law that the alleged victim‘s statements were impossible or implausible, it found probable cause with regard to each of the charges asserted against the defendant and the court bound the matter over to district court for trial.
The day after the preliminary hearing, October 22, 1998, Buck received the memorandum from Rice via first class mail. Buck promptly filed a motion for sanctions. Although the district court denied the motion on the ground that the outcome of the preliminary hearing would not have been altered, it stated:
[T]he prosecutor has an ongoing duty to disclose exculpatory information. That duty is not in any was (sic) a function of time. A prosecutor who learns of potential exculpatory material on the minute before a preliminary hearing has the same duty to disclose as though the information was found weeks earlier.
The charges against the stepbrother were eventually dismissed in January 1999.
II. CONCLUSIONS OF LAW
Prosecutors, as governmental officials, face ethical obligations not shared by other lawyers. In United States v. Wade, 388 U.S. 218, 256, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (White, J., concurring and dissenting) the Supreme Court stated:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. Id. at 256, 87 S. Ct. 1926.
In an earlier decision, Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935), the United States Supreme Court defined the special role of the prosecutor:
[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Id. at 88, 55 S. Ct. 629.
[T]he ethical rules that govern the legal profession single out prosecutors as the only participants who must adhere to a special duty beyond that of representing zealously their “client.” Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U.L.Q. 713, 727 (1999). The prosecutor labors under the pull of two divergent forces created by the ethical precepts. Id. One of these forces requires an attorney to advocate passionately the government‘s position, while the other pushes the prosecutor to seek a result that may not be exactly what the client and the attorney desire: a conclusion short of a criminal conviction. Id.
The prosecutor‘s special role and its importance is so ingrained in the fabric of the criminal justice system that prosecutors have been provided some measure of immunity for their official acts, whether proper or improper, due to the recognition that “professional discipline supplies an effective remedy” for prosecutorial misconduct. Cf. Imbler v. Pachtman, 424 U.S. 409, 428-429, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). Consequently, those charged with overseeing the ethical conduct of prosecutors must be particularly vigilant when reviewing their questioned conduct.
The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence of 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 Colorado Rules of Professional Conduct do not define “timely disclosure” for purposes of
Standard 3-3.11 of the ABA Standards: Prosecution/Defense Function6 provides in relevant part:
Disclosure of Evidence by the Prosecutor
(a) A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused. (emphasis added).
The Commentary to Standard 3-3.117 provides:
Withholding Evidence of Innocence
A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.8 This responsibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence, including consideration of exculpatory evidence known to the prosecution. This obligation, which is virtually identical to that imposed by ABA model ethical codes,9 goes beyond the corollary duty imposed upon prosecutors by constitutional law.10 The National District Attorneys Association similarly requires prosecutors to “disclose the existence or nature of exculpatory evidence pertinent to the defense.”11
The Colorado Rules of Criminal Procedure incorporate similar but not identical language.
The prosecuting attorney shall perform his obligations under subsections (a)(1)(I) . . . as soon as practicable but not later than
The terminology, “at the earliest feasible opportunity” and “as soon as practicable” contained in the ABA Standards: Prosecution/Defense Function and
The facts presented at trial of this matter established without question that Mucklow, in two separate cases, knew the information in her possession was exculpatory, had sufficient time prior to the preliminary hearing to disclose the information to the defense and knowingly chose not to do so. Although disclosure in both cases may have required Mucklow to deviate from normal office procedures and make extra effort to properly catalog the letter in the Skidmore case and expedite the preparation of the interview memorandum in the stepbrother sexual abuse case, it was both practical and feasible for her to do so. Strict adherence to general office procedures does not present a defense to violations of The Rules of Professional Conduct where blind adherence to those procedures results in nonconforming conduct.
In the Skidmore matter, Mucklow decided that the contents of the letter would not alter the outcome of the preliminary hearing, and believed that by providing it to defense counsel after the preliminary hearing she was adhering to the requirements of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and its progeny. Similarly, in the stepbrother sexual abuse matter, she understood that the testimony was exculpatory in nature but decided it was not necessary to provide the information to opposing counsel prior to the preliminary hearing, intending, rather, to delay disclosure until direct examination of the child victim during the preliminary hearing.12 She made that decision in order to protect the district attorney‘s office and avoid making herself a witness in the proceeding.
Mucklow contended in this disciplinary hearing that her conduct was in accord with the requirements of
Brady and the cases which follow it articulate a constitutional proposition that defendants are entitled to be made aware of information in the possession or control of the state which is favorable to the accused. The constitutional principal is designed to
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request 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. Brady, 373 U.S. at 87, 83 S. Ct. 1194.
Failure to comply with the mandate of the Brady doctrine may result in the imposition of sanctions against the prosecution. The doctrine is not intended to punish society for the misdeeds of the prosecutor but the avoidance of an unfair trial of the accused.14 Brady, 373 U.S. at 87, 83 S. Ct. 1194.15 Consequently, sanctions against the prosecution under Brady may only be imposed if the court finds that the prosecutor has failed to timely disclose exculpatory information and the information not disclosed would have altered the outcome of the underlying criminal proceeding. See Salazar v. People, 870 P.2d 1215, 1221 (Colo. 1994) (holding that a prosecuting attorney has both a statutory and a constitutional obligation to disclose to the defense any material, exculpatory evidence he possesses, citing Brady, 373 U.S. at 87, 83 S. Ct. 1194 for the proposition that failure to disclose information helpful to the accused results in a violation of due process only where the evidence is “material” either to guilt or punishment); People v. District Court, 808 P.2d 831, 834 (Colo. 1991) (holding that there must be a ‘reasonable probability’ that, had the evidence been disclosed to the defense, the result of the proceeding would have been different), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (holding that [a] ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome); People v. Avery, 736 P.2d 1233, 1237 (Colo. App. 1986) (holding that the test to establish a violation of due process when evidence has been lost or destroyed is: (1) whether the evidence was suppressed or destroyed by the prosecution; (2) whether the evidence is exculpatory; and (3) whether the evidence is material to the defendant‘s case, citing People v. Viduya, 703 P.2d 1281 (Colo. 1985)). Both parts of the Brady test must be satisfied before sanctions are warranted in a criminal case.
Colorado Rule of Criminal Procedure 16 Part I, which was adopted to meet the Brady doctrine, governs the prosecutor‘s production of discovery to the defense.
[W]e interpret the rule to require the prosecution to make available to the defense all non-discretionary material, as set forth in
Colo. R. Crim. P. 16 Part I(a)(1) , whether or not it is relevant to preliminary hearing issues. (emphasis added).
A preliminary hearing is an early screening device conducted before an impartial judge to assure that only those charges for which the prosecution has evidence rising to the level of probable cause shall be permitted to proceed to trial. People v. Noline, 917 P.2d 1256, 1272 (Colo. 1996). The preliminary hearing is intended to . . . afford a defendant an opportunity, at an early stage of the criminal proceedings, to challenge the sufficiency of the prosecution‘s evidence before an impartial judge. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589, 590 (1974). The preliminary hearing is designed to weed out groundless or unsupported charges and to relieve the accused of the degradation and expense of a criminal trial. Holmes v. District Court of Summit County, 668 P.2d 11, 15 (Colo. 1983). If the prosecuting attorney fails to establish probable cause at a preliminary hearing, the county court is empowered to dismiss the complaint. People ex rel. Gallagher v. County Court, 759 P.2d 859, 861 (Colo. App. 1988). At the preliminary hearing, the prosecution has the burden of producing that quantum of evidence necessary to establish probable cause to believe that a crime was committed and that it was committed by the defendant. Holmes, 668 P.2d at 15, citing Quinn, 183 Colo. at 245, 516 P.2d at 422. The evidence must be viewed in the light most favorable to the prosecution, and all inferences must be resolved in favor of the prosecution. People v. Holder, 658 P.2d 870, 871-72 (Colo. 1983). The credibility of the witnesses at a preliminary hearing may be considered only when, as a matter of law, the testimony is implausible or incredible. Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265, 1268 (1975).
Prior to the scheduled preliminary hearing in the Skidmore case, the complaining witness had recanted her earlier version of events. In the stepbrother sexual abuse case, the complaining witness had recanted portions of earlier statements and advanced new and different versions of prior events before the scheduled preliminary hearing. The recantation by the complaining witnesses in both cases raised questions regarding the credibility of their statements and was relevant to issues which could have been addressed by the court as part of its preliminary hearing screening process. Whether the credibility question was of sufficient magnitude or degree to affect the outcome of the preliminary proceeding is not relevant to a determination of compliance with
The Rules of Professional Conduct, unlike the rule of law enunciated in Brady, are not premised upon minimal constitutional conformity. Rather, The Rules of Professional Conduct are intended to set forth minimum standards of professional conduct for attorneys licensed to practice law. In most instances, compliance with the Rules’ provisions is tested against the conduct of the attorney, not the effect of that conduct upon others.17
The comment to Disciplinary Rule 7-103 (which preceded Rule 3.8) acknowledges that the omission of a Brady type materiality requirement (i.e. material to the outcome of the proceeding) makes the prosecutor‘s ethical obligations broader than the prosecutor‘s due process obligation:
[A] disparity exists between the prosecutor‘s disclosure duty as a matter of law and the prosecutor‘s disclosure duty as a matter of ethics. Disciplinary Rule 7-103(B) does not limit the prosecutor‘s ethical duty to disclose situations in which the defendant requests disclosure. Nor does it impose a restrictive view of “materiality.” Disciplinary Rule 7-103(B) states that the prosecutor has a duty to make a timely disclosure of any evidence that tends to negate guilt, mitigate the degree of the offense, or reduce the punishment. It appears possible, therefore, that a prosecutor may comply with the constitutional standards set forth in Brady and Augurs [Agurs], and still be in violation of Disciplinary Rule 7-103(B). Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L.Rev. 693, n. 115 (1987).
questioned conduct upon others. See
See State v. Harwood, 94 Idaho 615, 495 P.2d 160, 162 (1972) (stating that Disciplinary Rule 7-103 and Ethical Consideration 7-13 impose a duty on the prosecution “to make available all evidence which tends to aid in ascertaining the truth“). To fulfill ethical obligations the prosecutor must disclose all exculpatory evidence . . . whether or not the evidence presented or omitted is important enough, in the context of all of the evidence at trial, to warrant a reversal of the conviction. Rosen, 65 N.C.L.Rev. 693 at 714. An ethical violation can, and often will, be present even when due process is not violated. Id. See generally Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 Okla. City U.L.Rev. 833 (1997). Misconduct by a prosecutor may constitute a violation of applicable ethical rules, even when the misconduct does not mandate a sanction in the criminal case. People v. Reichman, 819 P.2d 1035, 1037 (Colo. 1991).
In Committee on Professional Ethics v. Ramey, 512 N.W.2d 569 (Iowa 1994) the respondent defended his failure to disclose police reports to the defense by arguing that the reports were not material, and therefore that he did not violate his prosecutorial duty under Brady. The Iowa Supreme Court stated that “[t]he duty to disclose exculpatory evidence cannot be ignored because of a prosecutor‘s private belief that it is beside the point.” Id. at 572.
The sole question presented upon an alleged violation of
III. SANCTION/IMPOSITION OF DISCIPLINE
The PDJ and Hearing Board find that Mucklow‘s misconduct constitutes a violation of duties owed to the profession and the public. The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) (“ABA Standards“) are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.
ABA Standard § 5.23 is applicable to Mucklow‘s actions in the Skidmore matter. It provides:
Reprimand is generally appropriate when a lawyer in an official or governmental position negligently fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process.
With respect to the Skidmore matter, the uncontroverted evidence presented at trial established that Mucklow believed her duty to disclose exculpatory evidence was based only upon the constitutional duty to do so under Brady and codified in
ABA Standard § 5.22 is applicable to Mucklow‘s actions in the stepbrother sexual abuse case. It provides:
Suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process.
At the time of the stepbrother sexual abuse case respondent had been put on actual notice of her duty under
Determination of the ultimate sanction to be imposed requires consideration of both mitigating and aggravating factors established by the evidence presented at the sanctions hearing. The PDJ and Hearing Board found and considered two factors in aggravation pursuant to ABA Standards 9.22: Mucklow engaged in a pattern of misconduct, id. at 9.22(c), and there were multiple offenses, id. at 9.22(d). The PDJ and Hearing Board considered the following factors in mitigation pursuant to ABA Standards 9.32: Mucklow had no prior disciplinary record, id. at 9.32(a); she had no dishonest or selfish motive, id. at 9.32(b); she was inexperienced in the practice of law, id. at 9.32(f), and she exhibited a cooperative attitude toward the proceedings.
In both the Skidmore and stepbrother sexual abuse cases, identifiable injury resulted from Mucklow‘s misconduct. In each case the defense was denied the opportunity to adequately prepare for the preliminary hearing.
There are no cases in Colorado to guide the PDJ and Hearing Board in the determination of an appropriate sanction, and few cases in other jurisdictions. In Office of
In Ramey, 512 N.W.2d at 572, the Iowa Supreme Court indefinitely suspended an attorney‘s license with no possibility of reinstatement for three months where the attorney, acting as prosecutor, made a false representation to the court concerning evidence, and failed to disclose exculpatory evidence. In Cuyahoga County Bar Ass‘n v. Gerstenslager, 45 Ohio St. 3d 88, 543 N.E.2d 491 (1989) the respondent attorney was determined in the contempt proceeding to have deliberately suppressed plainly exculpatory evidence that had the effect of allowing the criminal proceedings against the defendant to extend over many months when the case would probably have been dismissed had the records been produced when originally requested. The attorney was publicly reprimanded for failing to make timely disclosures of evidence that tended to negate the guilt of the accused in violation of DR7-103(B) and DR1-102(A)(5).
The PDJ and Hearing Board conclude that Mucklow‘s conduct in the Skidmore case warrants public censure. In the stepbrother sexual abuse case, the ABA Standards suggest that a period of suspension from the practice of law is warranted. However, it must be noted that Mucklow, an inexperienced prosecutor, conferred with her superior before she took action in that case. She relied upon her superior‘s advice, failed to timely disclose the exculpatory information and thereby violated
Dissent by RICHARD P. HOLME:
I respectfully dissent. The case against Respondent should be dismissed for failure to prove by clear and convincing evidence that Respondent violated
This disciplinary action arises from two criminal proceedings in which exculpatory information first came to the attention of the Respondent-prosecutor (a) the day before and (b) a few hours before scheduled preliminary hearings. Both involve allegations that
The majority opinion adopts a rule of disclosure by prosecutors in criminal cases that goes beyond the requirements of due process, beyond the clearly understood meaning of Rule 16 of the Colorado Rules of Criminal Procedure and beyond any reported case in the United States. Its scope places at serious risk the license to practice law of any prosecutor who delays for a moment in disclosing information which may be exculpatory without allowing any period even to verify the validity of any such allegedly exculpatory information. This ruling places a substantial club over prosecutors in the hands of the defense which can be unrelated to the merits of the criminal case. Moreover, the majority decision places the disciplinary authorities in the position of overseeing, second-guessing, and ultimately exercising a continuous invisible hand over the prosecution of criminal cases.
The rule adopted by the majority, even if it were to be deemed correct, should only be adopted clearly, openly and in advance of its application by a specific rule-making proceeding conducted by the Colorado Supreme Court and its appropriate advisory rule committees after due and open deliberation.
Although I see nothing in the facts of this case that would warrant public discipline against Respondent, given the majority‘s determination that Respondent has violated
The facts found by the majority involve few significant disputed facts, although the implications of some of them are worth further comment below. I agree with the majority that the central issue is whether, in either or both of the criminal cases at issue here, the admitted disclosure of all facts known by the Respondent, within two or three days after she herself first became aware of them and at the very outset of the criminal proceedings, was not “timely” as required by
It is useful to understand what this case does not involve:
- This case does not relate to a prosecutor who completely failed to disclose a fact that “tends to negate the guilt of the accused or mitigates the offense” (hereafter, for brevity, referred to as “exculpatory information“), as in Committee on Prof‘l Ethics v. Ramey, 512 N.W.2d 569, 572 (Iowa 1994), or in State v. Harwood, 94 Idaho 615, 495 P.2d 160, 162 (1972) (reversing criminal conviction where the prosecutor, who was not being disciplined, failed to turn over crucial ballistics information), cited by the majority;
- It does not relate to a case where a prosecutor withheld exculpatory information until the trial was virtually completed, or in which the prosecutor delayed turning over exculpatory information because of any personal animus toward the defense counsel, as in Office of Disciplinary Cnsl. v. Jones, 66 Ohio St. 3d 369, 613 N.E.2d 178 (1993);
It does not involve a prosecutor failing to comply with court ordered disclosures that had the effect of allowing criminal proceedings to drag on for months longer than they otherwise would have, as in Cuyahoga County Bar Ass‘n v. Gerstenslager, 45 Ohio St. 3d 88, 543 N.E.2d 491 (1989); - It does not involve a conviction of a greater crime or imposition of a more severe punishment than would otherwise have been given;
- It does not involve a case in which the prosecutor affirmatively mislead defense counsel about exculpatory information;
- It does not relate to a case where the prosecutor was found to have violated the Colorado Rules of Criminal Procedure relating to disclosure requirements or was found in contempt of court or where any other sanction was imposed for the prosecutor‘s impropriety;
- It does not involve the defense being saddled with greater expense in defending the case than would have occurred if the exculpatory information had been given earlier; and
- It does not even involve a case in which the prosecutor waited a month, or a week before providing the exculpatory information to the defense, or waited until closely before trial to reveal the information.
Regulation counsel must establish its claims by “clear and convincing evidence.”
In addition to the total absence of case authority supporting the majority‘s conclusion or providing fair notice to the Respondent that her actions were disciplinable, among the troubling features of the majority‘s ruling is that the determination of unethical conduct has not taken into adequate account the existence and language of rules that all prosecutors know exist and use on a daily basis—the Colorado Rules of Criminal Procedure.
The failure to disclose certain exculpatory information to criminal defendants was first identified as a constitutional violation with the seminal opinion of the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In Brady, a defendant‘s conviction for murder was reversed upon the post-trial revelation that the prosecution had failed to disclose an accomplice‘s confession to the homicide. The Supreme Court found that the total withholding of crucial information from the defendant violated the defendant‘s right to due process of law under the United States Constitution.
However, under Brady and its progeny, the undisclosed information had to be “material” in the sense that “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, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); and see People v. District Court, 808 P.2d 831, 834 (Colo. 1991).
In 1970, the Colorado Code of Professional Responsibility, DR 7-103(B), adopted ethical disclosure obligations identical to the ABA Model Code requiring prosecutors to make “timely” disclosure of exculpatory information. That Code provision states:
A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, . . . of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. (emphasis added.)
Indeed, a glance at the Colorado decisions cited in the annotated version of the Colorado Revised Statutes, reflects that all of the cases were concerned about disclosures before and in conjunction with the trial of the case. See e.g., People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973); People v. Walker, 180 Colo. 184, 504 P.2d 1098 (1972); People v. Drake, 841 P.2d 364 (Colo. App. 1992). No cited case has applied DR 7-103 (or its equivalent in any state) either in the context of disclosures actually made within three days of gaining knowledge or in the context of those made before or immediately following the preliminary hearing stage of criminal proceedings.
Following the promulgation of the ethical standards in the ABA Model Code, the American Bar Association first adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function § 3-3.11(a) in 1971. That subsection required prosecutors to make disclosures “at the earliest feasible opportunity.” Although the Commentary to § 3-3.11 says it is “similar to” DR 7-103(B), it does not discuss the basis for or the intent of changing the words from “timely” to “at the earliest feasible opportunity.” No cited case has applied Standard 3-3.11 either in the context of disclosures actually made within three days of gaining knowledge or in the context of those made before or immediately following the preliminary hearing stage of criminal proceedings.
In 1993, Colorado adopted its Rules of Professional Conduct, largely based on the ABA Model Rules of Professional Conduct.
The prosecutor in a criminal case shall:
. . .
(d) make timely disclosure to the defense of all evidence of information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . .
Providing for “timely” disclosure of exculpatory information maintains the original phraseology of the Code DR 7-103 without suggesting or adopting the phraseology of the intervening ABA Standard 3-3.11. Again, the Commentary for the Model Rule provides no explanation for the meaning of the word “timely” or for how or even whether that word should be read in context with the ABA Standard 3-3.11. The separate Colorado Comment relating to Colorado‘s version of
Because this provision [Colo. RPC 3.8] is based to a considerable extent on the ABA Standards of Criminal Justice Relating to the Prosecution Function which many jurisdictions have adopted and because it deals with a specialized area of practice, the Committee felt it should leave this provision as it was set out in the Model Rules.
Thus, neither the ABA nor Colorado provided any clarification of what they thought was meant by the term “timely.” No cited case has applied
Perhaps the most important source for determining the meaning of the word “timely” as it relates to the prosecutor‘s duty to disclose exculpatory information is and should be found in the language of Rule 16 of the Colorado Criminal Rules of Procedure. Like
Rule 16 is designed to implement Brady and to provide for a system of disclosure of information, inculpatory and exculpatory, before trial. Equally clearly, however, Rule 16 clearly expanded the rights of defendants to information beyond that constitutionally mandated in Brady.
Nothing in the cases cited by the majority opinion supports the majority‘s interpretation of the timeliness requirement as being immediate. Nor is it apparent that Rule 16 requires or contemplates such drastic measures. Rule 16 Pt. I(a)(1) requires prosecutors to disclose certain specified information including police reports, witness and expert statements, grand jury transcripts, physical evidence, wiretaps, prior criminal records of witnesses, and a list of trial witnesses. Subsection (a)(2) requires disclosure of exculpatory information. Subsection (b)(1) requires disclosure of police reports, witness statements, physical evidence and the witness list “as soon as practicable but not later than twenty days after the defendant‘s first appearance at the time of or following the filing of charges, . . .” Subsection (b)(3) provides that all other disclosures (including exculpatory information) are to be made “as soon as practicable but not later than thirty days before trial.” Thus, whereas
The factual foundation presented to the Hearing Board shows that Skidmore involved allegations of domestic violence by a woman who accused her boy friend of shoving or pushing her and causing a stereo she was carrying to fall and break her finger. The preliminary hearing was set for the afternoon of May 19, 1998. On either May 18 or the morning of May 19, Respondent noticed for the first time a handwritten letter which had been attached to the file which purported to be a recantation by the victim claiming that her injury was merely caused by an accidental bumping. The majority finds that Respondent‘s mailing of this letter to the defendant‘s lawyer the next day, after the defendant waived his preliminary hearing, was not “timely.”
Although the Respondent did not assert that she doubted the authenticity of the letter, she did recognize it as consistent with a familiar pattern of recantation by domestic abuse victims. There is nothing in the majority‘s ruling, however, that would excuse immediate disclosure of the information just because the prosecutor wished first to verify the authenticity of or circumstances surrounding the letter. The majority states that Respondent “had sufficient time and opportunity” to disclose the information to the defense counsel. However, it is virtually impossible to conceive of a situation, given today‘s means of instant communications, in which the prosecution would ever not have sufficient time and opportunity to disclose information. Thus, it is apparent that the majority has read the word “timely” in
Indeed, Attorney Regulation Counsel in its Brief Concerning Discipline was clear and straightforward as to its view of this matter:
It is the position of the Regulation Counsel that Colo. RPC 3.8(d) imposes an obligation to immediately disclose evidence of an exculpatory nature without regard to the nature of the pending proceeding or the materiality of the evidence to the proceeding.
(Id. at 3; emphasis added.)
The majority asserts that had the defense counsel known of this letter he might not have waived his right to a preliminary hear-
In his testimony to the Hearing Board, complainant-defense counsel (who was the same defense lawyer in both cases and the same complainant in both disciplinary charges), made the genuinely astonishing assertion, as noted in the majority opinion, that he had advised his client to waive the preliminary hearing and face felony charges because “a jury of twelve was strategically more favorable than a jury of six.” In other words, defendant‘s counsel claims he told the defendant that it was better to face the possibility of a felony domestic abuse conviction than to be assured that he could only be faced with a third degree misdemeanor conviction. Notwithstanding this testimony, the majority credits complainant‘s assertion that if he had known of the letter he would have subpoenaed in the victim to testify in person at the preliminary hearing in an effort to prove that she was “incredible as a matter of law.” Due to this highly speculative possibility, the majority has determined that even at the stage of a preliminary hearing a prosecutor must, at the potential cost of his or her ability to practice law, hand over this information essentially immediately.
In any event, almost immediately after complainant received the exculpatory information, he filed a motion for sanctions against Respondent. In fact, the district attorney‘s office dismissed the criminal charges shortly thereafter because it had then personally interviewed the purported victim. There is no evidence that the dismissal had anything to do with the sanctions motion.
Under this application of
The majority‘s new rule seems particularly unnecessary when one considers the level of the examination of proof required and al-
lowed at a preliminary hearing in Colorado. The law is clear and was recently summarized by the Colorado Supreme Court in People v. Hall, 999 P.2d 207, 221 (Colo. 2000):
To establish probable cause in a preliminary hearing, the prosecution must “present evidence sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that the defendant committed the crime charged.” The prosecution does not have to establish . . . even the likelihood that the defendant committed the crime.
. . . The court must view all the evidence and draw all inferences in favor of the prosecution, and the court must not accept the defendant‘s version of the facts over the legitimate inferences that can be drawn from the prosecution‘s evidence. The court should not review the merits of the prosecution‘s factual assertions because that function should be left for the trier of fact if the case goes to trial. (Citations omitted.)
Given this state of the law, it is genuinely speculative to assume that even the immediate disclosure of the information available to the prosecutor would have or could have made any difference whatsoever in the outcome of the proceeding. Nor would the two or three day delay in disclosure have made any difference as to the defendant‘s conviction or level of punishment.
The stepbrother sexual abuse case presented to the Hearing Board was a sexual assault case against a minor boy involving an eleven year-old girl. Together with an independent witness, Respondent interviewed the eleven year-old victim two or three hours before the preliminary hearing. In that interview, Respondent learned that the victim was changing her story. The victim denied her earlier story that the defendant had committed sexual assault by oral-genital contact and told the Respondent that the defendant had committed sexual assault by rubbing his penis against her vagina. It is undisputed that Respondent knew from past similar experience that this defense counsel, complainant, would move to disqualify the entire Cortez, Colorado, district attorneys’ office if Respondent were to tell him what
For reasons beyond Respondent‘s control, the independent witness was unable to prepare her written statement of the victim‘s interview until the next day—the day after the preliminary hearing. When this statement was completed, it was sent to the defense counsel and was received by him two days after the preliminary hearing.
Instead of risking disqualification of the entire office, a serious problem in a small and relatively remote location like Cortez, Respondent decided to make the defense counsel aware of the change in statement by asking the victim about it while she was testifying at the preliminary hearing. The victim in fact testified about her different version of the sexual assault, and defense counsel cross-examined her vigorously on the change. Nonetheless, Respondent did not specifically elicit the single fact that the victim denied having previously said that the defendant had engaged in oral-genital contact.
Complainant-defense counsel speculates, and the majority agrees, that had he known all of the details of the victim‘s changed statement he might have been able to persuade the judge that the victim was “incredible as a matter of law.” Again, the majority ruling in this case places the burden on a prosecutor to disclose every bit of exculpatory information immediately, at the risk of her ability to practice law and her professional reputation, even though such a step would occur months before trial and at the risk of disqualifying the entire office.
The majority rejects the position that Respondent should have been allowed to take the simple step of having the independent witness reveal the contents of the interview, even though that only took a couple of days and was accomplished long before any prospective trial or substantive hearing in the case. As before, on learning the new information, the complainant immediately filed another motion for sanctions against Respondent, which were not granted. This step-brother sexual abuse case was also dismissed on the district attorney‘s motion well before trial.23
The adoption of the rule applied by the majority will certainly give disgruntled defendants and their attorneys ample grounds for complaining about any failure to disclose exculpatory information, regardless of how important or tangential, within minutes of the time it is received. Indeed, given the concern expressed by the majority in the Skidmore matter that Respondent allowed her earlier tendered plea offer to stand for a day even after she became aware of the letter, it is easy to anticipate that defendants routinely will be seeking disciplinary sanctions every time they enter a plea and discover that the prosecutor did not tell them that the prosecutor had just learned that some witness (regardless of the importance of the witness) was going to be out of town for trial.
It requires little imagination to anticipate prosecutors’ abiding sense of paranoia when, after reading this decision, they realize that Respondent here was given leniency because of her inexperience, lack of explicit knowledge about the extent of the reach of
It requires little speculation to imagine the opportunities the Office of Attorney Regulation Counsel will have to prosecute prosecutors for events which result in no harm, do not relate to the guilt or innocence of the defendant and may well be used for harassing, intimidating, disqualifying, vindictive, or punitive purposes by defendant‘s counsel (although such motives would not be any defense to the disciplinary charges).
It is clearly within the province of the Supreme Court of Colorado to decide that in fact it wants prosecutors to disclose all matters “immediately,” without considering the significance or insignificance of the information, and without regard to the collateral consequences of having to make such instantaneous decisions. However, there is nothing in either
IV. ORDER
It is therefore ORDERED:
- PAMELA F. MUCKLOW is PUBLICLY CENSURED effective thirty-one days from the date of this Order;
- Pamela F. Mucklow is ordered to pay the costs of these proceedings within sixty (60) days of the date of this Order;
- The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days thereafter to submit a response thereto.
The PEOPLE of the State of Colorado, Complainant, v. Pamela Michelle ESPINOZA, Respondent.
No. 99PDJ085
Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
Jan. 18, 2001.
Notes
[The alleged victim] denied her stepbrother ... ever licked or kissed her vagina with his mouth. She stated she, [the alleged victim] never remembered this happening or telling this to anyone. She ... also remembered an incident when ... [he] rubbed his penis against her vagina while she was half asleep on the living room floor.