Both Prosecutor And Defense Counsel Accused Of Ethics Violations; Both Exonerated

The Oklahoma Supreme Court has exonerated the prosecutor and defense attorney of ethical charges for their handling of a first degree murder case.

The Muskogee County District Attorney’s office filed first degree murder charges against two men, Clinton Potts and Chad Pippin, for the 2004 murder of a man named Gregory Clark. Respondent Ward, who was then an assistant district attorney in Muskogee County, was the lead prosecutor at trial. Respondent Starr represented Mr. Potts. The jury trial of Mr. Potts began on July 20, 2009, and lasted until August 3, 2009. The jury found Mr. Potts guilty, and he was sentenced to life in prison without parole. Respondent Starr recommended Mr. Potts retain appellate counsel and proceed with an appeal. In a four-page opinion, the Court of Criminal Appeals reversed his conviction for prosecutorial misconduct and ineffective assistance of counsel. The disciplinary proceedings against Respondent Ward and Respondent Starr stem from such proceedings.

As to the prosecutor

In the case before us, the record reflects that all assistants in the Muskogee County District Attorney’s office, as well as District Attorney Moore, carried a very heavy case load. District Attorney Moore testified that prosecutors were to get ready for trial as best they could, sometimes even on a moment’s notice. Upon receiving the assignment to the Potts case, Respondent Ward did just that in the approximately twenty-five calendar days he had to prepare. He testified he spent just about every waking moment preparing for the trial while still receiving case assignments in other matters, making court appearances, and juggling his own case load. The OBA questioned Respondent Ward about why he did not seek a continuance to have more time to prepare for trial. Respondent Ward testified that when he asked Respondent Starr about a possible continuance, Respondent Starr told him he wouldn’t be able to agree to a continuance because his client was in jail and had been for some time. When Respondent Starr could not agree to a continuance Respondent Ward testified he knew he had to just “buck up and get ready and win or lose, put the trial on.” The OBA did not present clear and convincing evidence that Respondent Ward failed to competently and diligently prosecute the case.,,

We are convinced by the evidence offered in mitigation that Respondent Ward is not “a prosecutor who loves victory more than he loves justice.” The Complaint against Respondent Ward is dismissed, and he is exonerated of all charges. 

And as to defense counsel

Jury trials are not an exact science. A lawyer’s decision about what witnesses to call or not call at trial is an exercise of professional judgment, and lawyers must make informed and sound judgment calls in the heat of the moment at trial. The record clearly shows Respondent Starr acted competently and diligently in making such decisions for his client. This Court is not in the business of playing the Monday-morning quarterback. Just because counsel for the OBA would have defended the case differently, does not mean Respondent Starr did not provide his client with competent representation. Respondent Starr is exonerated on this charge…

Our record clearly reveals that appellate counsel for Mr. Potts inserted the words “failed to” and “no strategic reason” throughout the affidavit to achieve a certain result on appeal. Had Respondent Starr been given the opportunity to testify at the evidentiary hearing, he would have explained in greater detail each of the statements in the affidavit and there would have been no misunderstanding about the meaning of his affidavit. Instead, because the State was completely unprepared to put on evidence at the evidentiary hearing, the statements in the affidavit have gone unchallenged until now “by the light of truth we call cross-examination.” The PRT, up to this point, is the only tribunal to have received evidence and examined the contents of the affidavit in light of the evidence in the underlying case. After hearing several days of testimony and reviewing the jury trial transcript and record in the underlying criminal case, the most the PRT could conclude was that Respondent Starr “should have reviewed the affidavit more carefully” to “be as accurate as possible.” The PRT concluded Respondent Starr was negligent in signing the affidavit and recommended a public censure. Although we agree Respondent Starr negligently signed the affidavit, we decline to impose any discipline against Respondent Starr. These proceedings against Respondent Starr have been punishment enough. Under the facts and circumstances of this case, and considering Respondent Starr’s forty-year career with no previous discipline, the Complaint against Respondent Starr is dismissed in its entirety. 

In sum

It bears repeating that the Findings of Fact and Conclusions of Law filed after the evidentiary hearing in the underlying criminal case were drafted entirely by appellate counsel for Mr. Potts with the intention of gaining a reversal. The trial court signed off on the Findings of Fact and Conclusions of Law, which upon review, clearly reflect appellate counsel’s untested theory of the case. The Court of Criminal Appeals then reversed Mr. Potts’ conviction for prosecutorial misconduct and ineffective assistance of counsel relying solely on these Findings of Fact and Conclusions of Law. The State’s failure to make any kind of record at the evidentiary hearing and its blatant attempt to sweep the misgivings of the Muskogee County District Attorney’s office under the rug at the expense of Respondent Starr has exponentially compounded all aspects of this case. The reversal of Mr. Potts’ conviction is not supported by the evidentiary record presented to the PRT.

The OBA’s interest in prosecutorial ethics and protection of criminal defendants is a worthy and most timely concern, but the investigation into Respondent Ward and Respondent Starr’s handling of this case is not worthy of the time and effort employed. While we agree that the buck must stop somewhere that somewhere is not with Respondent Ward or Respondent Starr. It is with the District Attorney, who is ultimately responsible for the prosecution of cases in the county and who, as chief administrator of the office, is at least partially responsible for the conduct and trial tactics of his or her assistants.

NewsOK reported that the underlying criminal charges were dismissed. 

I don’t think I have seen a case where both prosecutor and defense counsel have been charged and exonerated in the very same case. (Mike Frisch)