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A duty to disclose

It's not often that a decision on attorney discipline has a major impact on how law is practiced.  It may well have happened with last week's decision in Disciplinary Counsel v. Kellogg-Martin

The case stemmed from Kellogg-Martin's actions in prosecuting a child rape case in 2002.  She filed a bill of particulars stating that the victim had been interviewed by Joanie Dorsey of Children's Services, and reported that the defendant had raped her on two occasions in the summer of 2000.  The defendant eventually pled to one count of sexual misconduct with a minor, during which hearing Kellogg-Martin made essentially the same statement as contained in the bill of particulars.

There was one problem:  in the initial interview with Dorsey, the victim had stated that the incidents took place in the summer of 2001, when she would've been 13; 12 is the cutoff point for a child rape case.  Kellogg-Martin didn't disclose this in court, nor in response to the defense's request for exculpatory evidence.

The duty of a prosecutor to turn over exculpatory evidence is not only a part of the criminal rules, but the disciplinary rules as well, so Kellogg-Martin was charged with violating the latter (then 7-103(B), now 3.8 under the Ohio Rules of Professional Conduct), and that the statements in her bill of particulars and at the plea hearing violated the rule against making false statements.  The disciplinary board found violations of both, and recommended a 12-month suspension, with six months stayed.  The Supreme Court, by a 6-1 vote, decided that Kellogg-Martin hadn't committed any violations at all, and dismissed the complaint.

Central to the result was the court's decision that Kellogg-Martin had no duty to turn over the information.  There were two steps in that process:  first, that the duty under the disciplinary rules was no greater than required by the criminal rules, which are in turn based on the Constitution; and that the Constitution does not require a prosecutor to turn over impeaching evidence prior to entering into a plea with the defendant. 

The first one has some logic:  as the court notes, a broader interpretation of the disciplinary rule "would threaten prosecutors with professional discipline for failing to disclose evidence even when the applicable law does not require disclosure."  (Moyer's dissent makes a good argument to the contrary, though.)  More troublesome is the second branch of the argument as to the constitutional duty, which the court draws entirely from the US Supreme Court's 2002 decision in US v. Ruiz.

Ruiz had been caught with 30 kilos of marijuana, and was offered a "fast track" plea bargain, in which she would get a two-level departure in her sentence in return for waiving indictment, trial, and appeal.  The plea agreement also specified that although the government would turn over any information establishing her "factual innocence," she waived the right to receive "impeachment information relating to any informants or other witnesses."  Ruiz balked at this, and the government withdrew the offer.  Ruiz later pled guilty anyway, and when the court refused to give her the benefit she would have received under the fast track program (in her case, six months less in prison), she appealed.  The 9th Circuit reversed, finding that the a defendant was entitled to the same impeachment information before entering into a plea agreement that they're entitled to receive before trial.

SCOTUS reversed that, on the question of whether a plea is voluntary if the defendant hasn't received exculpatory impeachment material from prosecutors.   And that's what the court hung it's hat on in Kellogg-Martin:  the material was for impeachment, the defendant pled, Ruiz says that the prosecutor doesn't have a duty to disclose impeachment material when the defendant pleads, ergo, Kellogg-Martin hadn't done anything wrong.

Part of the problem here is Ruiz.  While the Court was only addressing the question of whether a plea was involuntary if impeachment evidence wasn't disclosed, it's not too hard to flip it the way the Ohio Supreme Court did.  (Noteworthy in Ruiz is that nobody knows whether there was any impeachment evidence.)  And while some courts have interpreted Ruiz within the narrow confines of the factual situation there, others have read it more expansively.

This is a problem, because there's no question under Brady and its progeny that material impeachment evidence does have to be disclosed.  In fact, while Kellogg-Martin made extensive efforts to determine the dates of the offenses, and there's much reason to believe that the victim's initial statement that it had taken place in 2000 was a mistake on her part, there's not much question that if the defendant had gone to trial and been convicted, Kellogg-Martin's failure to reveal the inconsistencies about the dates would have merited a new trial. 

Despite it's dismissal of all charges against Kellogg-Martin, the majority cautions that its decision "should not be construed as an endorsement of respondent’s nondisclosure of the reports."  It's hard to see how it could not be, and Moyer seems to have the better of it when he expresses his fear "that attorneys will pay greater heed to the majority’s actual approach—  'no constitutional violation, no misconduct.'”  But it goes well beyond the rules on professional misconduct.  Indeed, the arguable result of Kellogg-Martin is that the prosecutor can wait to disclose impeachment material to see if the defendant pleads, and then reveal it only on the eve of trial.


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