Prosecutor Reprimand Proposed: Junior Status No Defense

A prosecutor’s Rule 3.8(d) violation resulted in  a public reprimand by the Louisiana Attorney Disciplinary Board.

The prosecutor was involved in a second-degree murder trial and claimed that his subordinate status precluded a misconduct finding with respect to disclosure of the familiarity of the crucial witness with guns.

The totality of evidence underpinning the state’s case consisted almost exclusively of the testimony of one key witness – and the only admitted participant – in the homicide: the victim’s estranged wife, Kristyn Hoffpauir. Kristyn initially was charged as a co-defendant with Sizemore, but in May 2011 she entered a guilty plea agreeing to testify for the state at trial against her former co-defendant.

The board on the Rule 5.2 defense offered by the prosecutor

We disagree. A subordinate lawyer is only insulated by Rule 5.2(b) when the supervisory lawyer is faced with a reasonable resolution of an arguable question of professional duty. Here, we find that the supervising lawyer’s resolution was neither reasonable nor arguable. His decision that such information should not be given to the defense does not logically follow from the premise that the information was hearsay. The defense could have called as witnesses the people identified by Mr. Thibeaux as possessing firsthand knowledge of the events in question, but not if it does not possess the information in the first place. Kristyn’s gun familiarity was questioned in the first two trials, and one of those occasions was after the prosecutors learned that Kristyn not only may have had a gun, but may have threatened to kill her own mother.

We are not persuaded by the fact that this issue did not arise in the third trial. The issue is not what happened in the third trial, but before and during the second. We find that the Office of Disciplinary Counsel proved by clear and convincing evidence that Respondent violated Rule 3.8(d) in failing to disclose the information procured by Detective Ortiz. Respondent has substantial experience as a prosecutor, and neither he nor Mr. Westerchil was principally responsible for the case.

The board agreed that the prosecutor had withheld material evidence in violation of his disclosure obligations.

The board noted only a single prior Louisiana case involving a Rule 3.8(d) violation and considered the prosecutor’s subordinate status in assessing the severity of the misconduct

The facts of this matter appear to be less egregious than those in Jordan. First, Mr. Jordan had sole discretion on what evidence was provided to the defense. Here, the facts are quite different. Mr. Skinner directed Detective Ortiz to interview Mr. Thibeaux, unbeknownst to Respondent and Mr. Westerchil. Mr. Skinner directed Detective Ortiz to leave the information regarding the prior gun possession out of his report, and then directed Mr. Westerchil to not disclose the report to the defense. Thus, Respondent was put in the difficult position of having to defy his supervisor’s handling of the information. Second, once the undisclosed evidence came to light during the second trial, Respondent and Mr. Westerchil promptly agreed to a mistrial. No such remedial action was taken in Jordan. Accordingly, the sanction recommended by the Committee – public reprimand – is appropriate and is adopted by the Board.

Mr. Skinner is the District Attorney. (Mike Frisch)