No Ethics Violation In Prosecutor’s Actions

A unanimous Wisconsin Supreme Court has affirmed the dismissal of ethics charges brought by the Office of Lawyer Regulation against a Racine County assistant district attorney for purported violation of her duty to disclose excuplatory information.

The court rejected the OLR’s contention that a “prosecutor’s ethical duty of disclosure [under professional conduct rules] is broader that the constitutional requirements identified in Brady.”

The case involved a traffic stop and arrest of the driver for possession of marijuana. The driver was on supervision for a prior cocaine possession. Criminal and revocation proceedings ensued.

The passenger admitted that the marijuana was his. He told this to the police and prosecutors. The defense attorney for the driver also knew of the confession.

An unsworn note containing the admission to a prosecutor was not provided to the defense until four days before trial.

The court found no ethical violation:

The record is devoid of evidence that Attorney Riek’s alleged delayin producing the Simpson Note and disclosing the fact of Simpson’s discussionwith D.A. Nieskes was intentional or done for any strategic purpose.  Mindful of the voluminous caseloads managedby most prosecutors, we are unwilling to rule that Attorney Riek’s disclosureof essentially duplicative information four days in advance of an apparentlyroutine marijuana possession case ran afoul of her ethical and proceduralobligations as a prosecutor. 

We note, moreover, that even where a prosecutor does fail todisclose exculpatory evidence in violation of Brady, a singleinadvertent failure does not necessarily constitute an ethical violation.  Negligence andethical misconduct are not necessarily synonymous.  Most courts and official ABA policy agreethat a single instance of “ordinary negligence” may trigger otheradverse consequences and possible sanctions but does not usually constitute adisciplinary violation warranting public discipline.

(Mike Frisch)