Prosecutors Reprimanded For Misleading Stipulation and Argument

Two former prosecutors have been censured by the Oklahoma Supreme Court for misconduct in a murder trial.

The defendant was charged with causing a death by stabbing. The misconduct involved a witness to the crime.

At issue was where the stabbing  had occurred. The location was relevant to a potential Stand Your Ground defense.

On March 5th, the two respondents interviewed Padilla at the nursing home. During the meeting, Padilla gave statements that were inconsistent with his earlier statements in the police report, and he recounted events that were chronologically out of order. The notes taken by both respondents record that Padilla stated the victims were stabbed either in a driveway or at the end of a driveway. However, none of those notes indicate that Padilla ever described the stabbing as having occurred specifically in Defendant’s driveway, nor did they indicate that the stabbing occurred in the street away from Defendant’s house. Respondent Kimbrough’s notes did reflect that Padilla recalled the victim and others “left and went toward 41st toward home.”

The notes taken by the respondents were not intended to be complete recitations of Padilla’s statements, but after realizing Padilla’s story was full of inconsistencies, both Kimbrough and Miller stopped taking notes. He had contradicted himself during the interview multiple times. His memory of the events was vague and unreliable, and he referred back generally to whatever he told the police as being more accurate.

After they stopped taking notes, the respondents tried to clarify Padilla’s statements by showing him crime scene photographs taken at Defendant’s house and along Stiles Street. Eventually, Padilla affirmed the facts he told the police detectives immediately after the stabbing, which facts were consistent with the State’s case.

Following the interview with Padilla, Respondent Kimbrough stated to Respondent Miller, “Well, we’re not calling him as a witness.” Kimbrough did not think that Padilla would be a witness that the jury would “pay attention to” because of his demeanor, his inability to communicate and his chronologically challenged version of events. They did not discuss whether Padilla had made inconsistent statements that could be considered Brady material. Then Kimbrough went home.

After the interview Respondent Miller returned to the district attorney’s office and spoke to assistant district attorney Merydith Easter Lusk. Miller was frustrated and stated that the interview did not go well. She stated that Padilla was confused from too much drug or alcohol use (“perma-fried”) and was inconsistent. She continued that Padilla thought the murder happened in the driveway. She added that he would not be called as a witness. She also told Lusk that she would provide Padilla’s location to defense counsel, but if counsel wanted to know what Padilla would say, counsel would have to go see him.

The attorneys later agreed to a stipulation that inaccurately recounted Padilla’s terstimony. He was not called as a witness.

Lusk heard the closing arument and blew the whistle

 Lusk reported the matter to District Attorney David Prater, who then contacted Oklahoma County Public Defender, Bob Ravitz concerning the possible Bradyviolation. The DA initiated an investigation. The investigator contacted Respondent Kimbrough in Lawton at a hospital where her father was admitted for heart problems. On the phone she told him, “the only thing that was a little different then is he [Padilla] said I don’t know if it happened in the street or in the driveway and but then that’s when I said well if you told the officers in the street was that night, would that be, he said that’s more accurate.” After the investigation concluded, the DA terminated both respondents from their jobs with the DA’s office.

After the DA and Public Defender informed Judge Deason about the investigation and their conclusions, the judge granted Defendant a new trial and vacated the conviction based on the respondents’ failure to disclose exculpatory information to the defense. In the second trial, Padilla appeared and testified in court. However, he did not testify that the stabbing occurred in Defendant’s driveway. Defendant was convicted of the lesser crime of First-Degree Manslaughter, for which he received a sentence of twenty years in prison.

The court

the evidence reveals that the respondents knew Padilla had contradicted his earlier statement, they knew the defense believed that if the stabbing occurred in the driveway they would have some support for their self-defense argument. They knew Padilla told the respondents that the stabbing occurred in the driveway, even though he did not specify which driveway. The trial panel believed Respondent Miller thought Padilla was talking about Defendant’s driveway, while the panel believed Respondent Kimbrough thought Padilla was referring to a driveway down the street. Being on notice, both should have timely presented this to the defense. The problem was enhanced by the closing argument indicating that Padilla’s testimony was consistent with the prosecution’s theory of the facts, when in fact they both knew Padilla had contradicted himself. As senior attorney, Respondent Kimbrough should have instructed Respondent Miller that the inconsistency must be revealed.

Sanction

The Bar Association recommended that both respondents be publicly censured for their acts. The trial panel concluded that Respondent Miller intentionally misled the defense because she believed the witness was referring to Defendant’s driveway when the respondents interviewed him. We agree. The trial panel concluded that Respondent Kimbrough did not believe the witness specifically referred to Defendant’s driveway. We agree. Nevertheless, she knew that Padillo’s interview with the respondents contained contradictions to the recorded interview Defendant’s attorney reviewed. Respondent Kimbrough should have informed the defense of that fact when negotiating the wording of the stipulation. Neither respondent should have allowed or participated in a closing argument that claimed the witness would not contradict the prosecutor’s argument concerning the location of the stabbing. This conduct violated Rule 8.4(c) of the Oklahoma Rules of Professional Conduct, which prohibits a lawyer from engaging in conduct involving dishonesty, or misrepresentation. We conclude that the respondents should be and are hereby publicly reprimanded.

The attorneys were dismissed from the prosecutor’s office.  (Mike Frisch)