The pitfalls of social media
I got on Facebook several years ago, but I haven't been back
more than three or four times. Somehow,
I just can't get that excited learning about what other people who can serve as
the pieces in a game of Six Degrees of Separation from Russ Bensing are
doing. (And I assume they are no more
interested in my daily travails, either.
Hell, I'm not sure I'm interested. Several years ago, I just missed being in a
terrible auto accident, and my life flashed before my eyes. I got bored.)
Brockler was assigned to handle the case against Damon Dunn,
who was accused of murdering Ken "Blue" Adams at a Cleveland carwash in May of
last year. The case against Dunn,
though, took a hit when the defense provided the prosecution with the names of
two women who were going to testify that Dunn was with them somewhere across
town when the murder took place.
What to do, what to do?
Investigate the backgrounds of the two women, searching for criminal
records or something else with which to impeach them? Check with their friends, see if the alibis
hold up? Brockler instead settled on a less
conventional tactic: after finding out
that the two women had Facebook accounts, he set up a fake one of his own,
posing as a former girlfriend of Dunn's, then messaged the two women and told
them that he'd just had Dunn's child. It
had the desired effect: the two women,
in Brockler's account, "went crazy." He
met with them the next day, leaving out the fact that he'd been the one who'd
actually talked to them, to see if they'd change their stories, and, according
to him, they did, with one telling him that "this is bogus, I'm not going to
lie for [Dunn]." Satisfied with a job
well done, Brockler printed out the chat transcripts and placed the copy in the
file.
Brockler had to take a medical leave after that, and during
his absence the prosecutor who was handling the file in his stead came across
the transcripts. The new prosecutor
confronted Brockler, and according to the various accounts, Brockler either
admitted that he was the participant immediately, or initially denied his
involvement before 'fessing up. There's
another version, in which the prosecutor's office learned about this when the
women complain they are being harassed on Facebook, and the chat activity with
them was traced to Brockler's office computer.
In any event, the case went to the top, and Chief Prosecutor
Tim McGinty, elected just this past November, wasted no time. He fired Brockler on the spot, issuing a
statement that his office "does not
condone and will not tolerate such unethical behavior," and that Brockler "disgraced
this office and everyone who works here."
That's certainly
a welcome change in culture for an office which until 2008 annually bestowed an
award to the assistant prosecutor who "set the standard for what law
enforcement should be"; the award was named after Carmen Marino, a chief
assistant prosecutor who had at least a half dozen major convictions overturned
in the 1990's for withholding evidence. But
snark aside, l'affaire Brockler raises three questions.
First, what are
the ethical implications? It turns out Brockler
isn't a pioneer here. As this article notes, two New Jersey attorneys were charged with
ethics violations when their paralegal "friended" an opposing plaintiff. That gets into the problem of communicating
with a party represented by counsel, a definite no-no. That's not Brockler's situation, but various
bar associations which have considered the issue have held that even talking to
a non-party raises problems: under the
Model ABA Code (which has been essentially adopted in Ohio), a lawyer may not
make a false statement of material fact to a third person (Rule 4.1(a)), and
may not engage in conduct involving deceit or misrepresentation. (Rule 8.4(c)).
Second, did
Brockler commit a crime? There is such a
thing as attempting to influence a witness, but that requires using force or an
"unlawful threat of harm to any person."
That certainly doesn't fit. RC
2913.05 prohibits using a "telecommuncations service" for fraudulent purposes,
but that's a stretch, too; fraud normally involves some attempt to obtain
money. On the other hand, I have a
feeling that if a defense lawyer had tried to influence prosecution witnesses
in this manner, an indictment would have been produced in short order.
The final
question is what happens to the case against Dunn? This is where things get interesting. There is case law which holds that a government's
pretrial conduct can be so outrageous that it warrants dismissal of the
indictment, either because it rises to the level of a due process violation, or
because the court chooses to do so in the exercise of its supervisory
powers. To be sure, this is infrequent,
and reserved for situations where the government's conduct is "flagrant,
willful, and in bad faith," and there's no real remedy for the defendant.
It's hard to say
at this point, but at least Dunn has an argument on this score. Here's an intriguing question: think there's a chance the State will call
Brockler to testify what the witnesses told him? Me neither.
Still, Brockler's communications with the witnesses may have hopelessly
compromised their testimony.
Brockler explained that the reason he did this is because
he'd developed a "personal relationship" with the victim's mother: "I felt her pain over losing her son," he
told the Plain Dealer. "I made a promise
to her that he wasn't going to walk out the front door of the courthouse. This was a horrible killer and I didn't want
him to get out and go kill someone else's son."
The irony is that by doing what he did to bring someone he believed to
be a killer to justice, he greatly complicated that task.
Comments