Stayed Suspension For Prosecutor Who Falsely Facebook Friended Alibi Witness
A fully-stayed suspension of one year has been imposed on a prosecutor for Facebook misconduct by the Ohio Supreme Court.
relator, disciplinary counsel, charged Brockler with engaging in professional misconduct while he served as the assistant Cuyahoga County prosecutor assigned to a murder case. Specifically, relator charged that while investigating the shooting death of Kenneth “Blue” Adams, Brockler created a fictitious Facebook account and used it to contact the alibi witnesses of Damon Dunn, who had been indicted for the murder.
The court rejected the claim that the conduct was not unethical
Brockler argued that his conduct did not violate Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice) as charged in the complaint because it encouraged witnesses to come forward and tell the truth. But the board found that his subterfuge prejudiced the administration of justice because it had the potential to induce false testimony, injected significant new issues into the case shortly before trial, and materially delayed the resolution of the case by requiring further investigation and the appointment of a special prosecutor
The court majority noted that the misconduct was “an isolated incident in an otherwise notable legal career” in imposing a stayed sanction.
Chief Justice O’Connor disagreed
The substantial evidence of wrongdoing and the aggravating factors in this case prove that Brockler committed significant violations of the Ohio Rules of Professional Conduct. Yet faced with Brockler’s glaring disdain for the ethical responsibilities this court imposes on all attorneys in this state, a majority of this court imposes only a one-year suspension, fully stayed…
the stakes in this case involved imprisonment for up to a life term. Brockler actively hindered the pursuit of justice in a criminal proceeding on multiple occasions, by lying to alibi witnesses in an effort to make them change their statements. He made every effort to hide his deceptive activities until they were uncovered, and then he refused to admit that his actions were wrong.
Failing to require Brockler to serve even a single day of his suspension does little to establish that this court will ensure the integrity of prosecutors and the ethical administration of justice. Indeed, none of the cases upon which the majority opinion relies to support a fully stayed sentence involves a lawyer lying in a criminal case to the detriment of a criminal defendant and, ultimately, to the detriment of the public’s faith in our courts and in justice.
Chief Justice O’Connor would impose indefinite suspension.
Huffington Post reported that the prosecutor was fired as a result.
[He] confessed to posing as a woman on the social network in an attempt to coax the accused killer’s alibi witnesses to change their testimony, the Cleveland Plain-Dealer reports.
“Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth,” Brockler told the newspaper. “I think the public is better off for what I did.”
(Mike Frisch)