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The pitfalls of social media

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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.)

Cuyahoga County assistant prosecutor Aaron Brockler might have been better served by staying away from Facebook, too.

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.

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