IN RE: APPEAL OF THE DECISION OF THE DISCIPLINARY BOARD NO. 22-PDB-099 (2023)

Denied.

Attorney Disciplinary Proceeding

The hearing committee unanimously affirmed the ODC's dismissal of the complaints, as did the disciplinary board, all in accordance with Louisiana Supreme Court Rule XIX, § 11(B). Complainants thereafter filed notice of appeal pursuant to Supreme Court Rule XIX, § 30(C).

Based on a review of the record, I agree with the disciplinary committees and this Court that the record is devoid of clear and convincing evidence of any violation of the Rules of Professional Conduct by respondent (who, along with the respondent lawyers in In Re: Appeal of Disciplinary Board Decision No. 22-PDB-100, 23-OB-421 and In re: Appeal of Disciplinary Board Decision No. 22-PDB-101, 23-OB-422, are former assistant district attorneys). Complainants allege that respondents acted unlawfully in order to secure a murder conviction; specifically, that they engaged in prosecutorial misconduct by failing to turn over evidence favorable to the defense as set forth in Brady v. Maryland, 373 U.S. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Rule 3.8(d) of the Rules of Professional Conduct provides that the prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense. In light of both the landmark Brady standard and Rule 3.8(d), this Court in In re: Seastrunk, 2017-0178 (10/18/17), 236 So.3d 509, examined the scope of ethical obligations imposed on prosecutors by Rule 3.8(d), rejected the argument that Rule 3.8(d) imposes a broader ethical obligation and held that the obligation is coextensive with the obligation under Brady. This Court reasoned that the obligations are co-extensive so as to not impose inconsistent disclosure obligations upon prosecutors. Finding guidance in other jurisdictions faced with the same inquiry, this Court concluded that under conflicting standards, “prosecutors would face uncertainty as to how to proceed, as they could find themselves in compliance with the standard enumerated in Brady, but in potential violation of the obligation set forth in Rule 3.8(d).” In finding the obligations coextensive in Rule 3.8(d) and Brady, the Court declined to impose inconsistent disclosure obligations upon prosecutors, thereby eliminating confusion. In re: Seastrunk, 17-178, p. 18 (La. 10/18/17), 236 So. 3d 509, 519. Moreover, this Court noted that any broader interpretation of Rule 3.8(d) would invite the use of an ethical rule as a tactical weapon in criminal litigation and thus rejected any reasoning as such.

In conclusion, I note that the ODC has conducted a thorough analysis and investigation of these complaints, and based on its review - and ours - the ODC cannot meet the high standard of clear and convincing evidence in this case. I therefore concur in this Court's denial of the appeal of the ODC's decision.

Crichton, J., additionally concurs and assigns reasons. Weimer, C. J., recused.