Don’t Mess With Oklahoma

A disciplinary matter involving a prosecutor’s misconduct that led to a 90-day suspension in Arizona drew a whopping increase to two years and a day as reciprocal discipline by the Oklahoma Supreme Court.

There is no question that Respondent engaged in multiple conversations with a confidential intermediary appointed by the trial court to aid the defense in a capitol murder case. While the conversations themselves were not the basis for Respondent’s discipline in Arizona, this Court considers them to be troubling at the very least. As his own submissions indicate, Respondent is a seasoned and decorated prosecutor. Respondent should have brought his concerns about the defense’s interaction with the CI to the trial court. Rather than doing so, Respondent took it upon himself to communicate with the CI on multiple separate occasions from his office and on his cellular phone.

Further, the uncontroverted facts reveal that after others became aware of his contact with the CI, at every stage Respondent failed to be candid with the defense, the trial court, his own co-counsel, and the Arizona Attorney General’s Office about the true extent of his interactions. Respondent’s initial disclosure of his first conversation with the CI led everyone involved to believe it was the only one, despite other conversations having occurred prior to Respondent mentioning the first one. In response, Respondent contended that he did not disclose his conversations because he did not believe he had an obligation to do so.

On multiple occasions, Respondent failed to disclose that there was a witness to his first conversation with the CI, and his position is that he did not remember that there was one until well into the controversy. More telling, however, is that in multiple filings signed by Respondent submitted to the trial court, he failed to inform the court of the true number of interactions between himself and the CI. He failed to do this based upon his own personal determinations of what should and should not be relevant for the trial court’s consideration of the defense’s motion to recuse, substituting his own personal judgment for that of the court. His reasons aside, there is no question that respondent misled the defense, the trial court, his co-counsel, and the Attorney General’s office, and Respondent agreed that doing so was both prejudicial to the administration of justice and worthy of suspension in Arizona.

A much greater sanction than agreed on in Arizona was deemed appropriate

Respondent was a seasoned prosecutor by the time the events that subjected him to discipline in Arizona occurred. “The well-being of our judicial system to a large extent rises or falls on the trust the people have in those holding either prosecutorial or judicial offices.” In the Matter of the Reinstatement of Page, 2004 OK 49, ¶19, 94 P.3d 80. By continuously failing to provide a complete picture to other counsel and the trial court concerning his interactions with the defense’s CI, Respondent violated that trust and potentially compromised the prosecution of an alleged murderer. Respondent had multiple opportunities to provide a complete explanation and timeline of his actions to his co-counsel, the defense, and the trial court, yet he failed to do so. After Respondent was removed from the case by his superiors, his actions left his office scrambling to file a supplemental response to clarify its previous submissions after phone logs finally revealed the full extent of Respondent’s interactions with the CI.

Respondent did not tell the court the whole truth. He took it upon himself to decide what the trial court needed to know to rule on a request for his recusal due to his communications with the CI. Respondent’s acts were prejudicial to the administration of justice, and there is simply no excuse for his lack of honesty under the circumstances. 

Having handled a number of reciprocal discipline matters myself, I am dubious about the utility of a significant ratcheting up of sanction. This is particularly true in a matter where the original sanction was achieved by consent of the attorney and disciplinary counsel.

This footnote was interesting

Respondent’s Response to Complainant’s Reply to Show Cause Order and Submission in Mitigation of Discipline provides in part:

In addition to Respondent’s direct submissions in support of mitigation, this Court may also consider Respondent’s two-decade career in Oklahoma. While prosecuting some of Oklahoma’s most difficult and terrible cases, including securing the convictions of defendants after others had been wrongfully convicted and then exonerated, Respondent was never disciplined by this Court. He never had to be; his record is that of an excellent prosecutor who continuously learned from both mistakes and triumphs and worked tirelessly to see justice done.

While Respondent is correct that he has never been subjected to discipline by this Court, the Court of Criminal Appeals has more than once had occasion to cast doubt on Respondent’s characterization of his career as an Oklahoma prosecutor. See Mitchell v. Oklahoma, 2006 OK CR 20, ¶103, 136 P.3d 671 (Death sentence reversed based in part upon Respondent’s “serious and potentially prejudicial misconduct.”); Stouffer v. State, 2006 OK CR 46, 147 P.3d 245 (Characterizing Respondent’s questioning as “more akin to prosecutorial misconduct” and “extremely improper and irrelevant.”).

(Mike Frisch)