BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OFFICE OF SECRETARY

OPINION 95-11 Issued October 6, 1995 DR 7-103

(A) [deleted]
(B) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he [she] has no counsel, 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.
-repeating-
… THAT TENDS TO … mitigate the degree of the offense, or reduce the punishment.
—

At the panel hearing on 21 March 2008, panel member S. Anderson, Esq. indicated to respondent Kellogg-Martin that there was “no down side” were she to have released the information to defense counsel, and that had she so released, “we would not be here today” [at the hearing].

Although the panel recommended a suspension of 6 months, all stayed, the Board upped the sanction to 12 months, 6 months stayed.

Chief Justice Moyer, in my opinion, is correct and impeccably so, when he cautions:
“{¶ 75} …. Indeed, I fear that attorneys will pay greater heed to the majority’s actual approach—“no constitutional violation, no misconduct”—and that will become the new measure of professionalism under DR 7-103 and its successor, Prof.Cond.R. 3.8.”

Some may view the decision as open season on defense attorneys with no meaningful risk to prosecuting attorneys.

At times, albeit rarely, litigants use inappropriate means to complain about the justice system, e.g. shooting or killing a judge or others un the justice system.

Some prosecutors in other states have concealed evidence that indicated the defendant was innocent. Decades later it is determined that the imprisoned defendant WAS innocent.

Several decades ago, someone (or more) had a grievance against a person in the Columbus, Ohio justice system.

Whether the grievance was valid/invalid or whether “work” related remains unknown — the person was blown away with a shot gun and the crime remains a “cold case” after nearly 40 years.

It is to be hoped, that the very few prosecutors who think it’s o.k. to play hide-and-seek with defense counsel, do not interpret Kellogg-Martin as a blank check to use any means to achieve a conviction.

Were their conduct to convict an innocent and that innocent to have a relative or friend who felt it o.k. to “get even,” the results could be unpleasant.

It is unfortunate that Chief Justice Moyer was unable to persuade at least three other colleagues to see and understand the consequences of the Pandora’s box that has been opened by Kellogg-Martin.

This is not the first time he has dissented in discipline cases involving prosecutors who have problems with conscious misstatements of fact. The days at befinning of line are the days between oral argument and decision.

# 126 days 2003.03.25>07.29 #02-2181
Disciplinary Counsel v. Wrenn, 99 Ohio St.3d 222, 2003-Ohio-3288

http://www.sconet.state.oh.us/rod/docs/pdf/0/2003/2003-Ohio-3288.pdf

6 months-6 months stayed Lundberg Stratton 26¶; Moyer 4¶ Pfeifer concur for more severe sanction
—–

# 162 days 2004.05.25>11.03 #04-0106
Ohio State Bar Assn. v. Stern, 103 Ohio St.3d 491, 2004-Ohio-5464

http://www.sconet.state.oh.us/rod/docs/pdf/0/2004/2004-Ohio-5464.pdf

DISMISSED Resnick 39¶; Moyer 3¶ Sweeney, O’Connor concur for public reprimand
—–

# 415 days 2008.12.16–2010.02.04
Disciplinary Counsel v. Kellogg-Martin, ___ Ohio St.3d ___, Slip 2010-Ohio-282

http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-Ohio-282.pdf

DISMISSED Per Curium 44¶; Moyer 42¶ 12 months-6 months

JAG/tbm 22:46