Prosecutor Suspended

Prosecutorial misconduct drew a three-year suspension by the Wyoming Supreme Court.

Respondent had prosecuted an aggravated assault and battery case in Teton County.

The police had downloaded extensive information from the victim’s cell phone 

Ms. Windsor had an incomplete memory of the night of October 26, remembering some time frames and events but not others. She related some specifics of the attack but did not remember other portions of the evening. Ms. Windsor looked at pictures on her cell phone and realized that “her timeline was off.” The deputy obtained Ms. Windsor’s cell phone and asked the sheriff’s office IT department to “get me what you can off this phone.” The IT department performed “forensic phone downloads,” or a “phone dump,” which resulted in “thousands of pages of phone downloads” and “probably a thousand pictures.” The deputy then returned the phone to Ms. Windsor. Later, the deputy reviewed the extraction report and many of the photos on the phone and did not find anything she believed to be exculpatory.

Discovery order

In an order entered August 12, 2015, based on Mr. Hinckley’s consent, the trial court directed: “The State shall exercise due diligence to obtain the requested information and shall promptly request the information from Facebook and Verizon Wireless and provide it to Defendant’s counsel.” (emphasis added). Mr. Hinckley never requested the information from Facebook or Verizon. Other facts related to the trial court’s order about the Facebook and Verizon records are set forth in the discussions on Rules 3.2, 3.3(a), and 3.4…

Respondent secured a conviction at a first trial but

A jury found Mr. Black guilty. He appealed, and this Court reversed, based on Mr. Hinckley’s prosecutorial misconduct. We found Mr. Hinckley committed prosecutorial misconduct in closing argument by (1) personally vouching for law enforcement officers involved in the case, (2) making remarks to inflame the passion of jurors rather than related to the facts, and (3) making a personal attack on defense counsel. We also found Mr. Hinckley committed prosecutorial misconduct by failing to ever request the ordered information from Facebook or Verizon.

He was removed from the prosecution of the second trial.

Sanction

The responsibility of this Court in disciplinary proceedings is not to punish, but to determine a lawyer’s fitness to practice law for the protection of the public, the courts and the legal profession. Applying the ABA Standards, the presumptive sanction for each of Mr. Hinkley’s violations of the rules of professional conduct is suspension. Taking into account the aggravating and mitigating circumstances, we conclude this is a proper level of sanction. However, given the number of violations, the effects of Mr. Hinckley’s conduct on the underlying case, and Mr. Hinckley’s knowing state of mind, the term of the suspension should be significant. We, therefore, suspend Mr. Hinckley from the practice of law for a period of three years from the date of the BPR hearing. So ordered.

FOX, Chief Justice, concurring in part and dissenting in part, in which DAVIS, Justice, joins.

I write separately because clear and convincing evidence supports the BPR’s finding that Mr. Hinckley violated Rule 1.3 in all manners charged, and that he misrepresented facts to the district court in violation of Rule 3.3(a). I also believe the BPR’s recommended sanction of disbarment was warranted, and I would impose that sanction. I therefore respectfully dissent from the majority opinion’s holdings to the contrary.

Because

The record supports the BPR’s conclusion that Mr. Hinckley violated Rule 3.3(a) by knowingly making false statements to the court concerning his efforts to obtain the Facebook and Verizon records and allowing Judge Day to be misled by those statements.

Attitude

Throughout the hearing before the BPR, Mr. Hinckley firmly maintained his stance that his misconduct was a gift to Mr. Black, and he defended his refusal to be a part of any settlement that would result in monetary restitution to Mr. Black. In finding that Mr. Hinckley’s lack of remorse and indifference to restitution were aggravating factors in determining the appropriate sanction, the BPR apparently was not persuaded by Mr. Hinckley’s last-minute change of heart. Nor am I. I conclude that the record supports treating these as aggravating factors in determining the appropriate sanction.

(Mike Frisch)