Utah, Idaho, Pennsylvania, New Jersey

A prosecutor who was suspended for six-months by the Utah Supreme Court for a Rule 3.8(d) disclosure violation received identical reciprocal discipline in Idaho and Pennsylvania.

He also now also gets six-months in New Jersey notwithstanding this notable aspect reported by the Disciplinary Review Board

The [Office of Attorney Ethics] asserted that, pursuant to New Jersey disciplinary precedent, respondent’s misconduct warrants only a reprimand. The OAE noted that few New Jersey disciplinary cases have addressed prosecutorial misconduct, and cited [a number of] reprimand cases in support of the recommended discipline…

The DRB’s report

Respondent’s misconduct was serious. He prosecuted a defendant for two armed robberies, who, if convicted, faced a potential  sentence of life in prison. The crimes had occurred four years before the trial, and no physical evidence linked the defendant to the robberies. The testimony of two sets of
eyewitnesses, thus, would make or break the prosecution’s case.

Despite that knowledge, in preparation for trial, respondent improperly showed each eyewitness defendant’s photograph. He did not show the witnesses lawful photo arrays, or pictures of any other individual. His motivation, clearly, was to ensure that each eyewitness would identify the defendant from the witness stand at the trial.

When, during the trial, when the first eyewitness lied on the stand  that he had not been shown a photograph of the defendant  just prior to the trial, Respondent took no action to correct that false testimony. Rather, respondent’s misconduct  came to light only after the second eyewitness testified, during  cross-examination, that respondent had shown both her and the first witness, her husband, a photograph of the defendant during trial preparation. In response, the defense moved for a mistrial.

Sanction

In light of the fact that respondent’s egregious misconduct took place in the context of a felony case, while he served in the trusted and powerful position of a trial-level prosecutor, we see no reason to diverge from the discipline imposed in Utah. Rather, as occurred in Pennsylvania and Idaho, we determine that a six-month suspension is the appropriate quantum of discipline in this case.

(Mike Frisch)