In re Attorney C, No. 01SA19.

• Decision Date: 13 May 2002
• Docket Number: No. 01SA19.
• Citation: 47 P.3d 1167
• Parties: In the Matter of ATTORNEY C, Attorney-Respondent.
• Court: Colorado Supreme Court

47 P.3d 1167

In the Matter of ATTORNEY C, Attorney-Respondent.

No. 01SA19.

Supreme Court of Colorado, En Banc.

May 13, 2002.

John Gleason, Attorney Regulation Counsel, Charles E. Mortimer, Jr., Assistant Regulation Counsel, Denver, Colorado, Attorneys for Petitioner.

Hall & Evans, L.L.C., David R. Brougham, Denver, Colorado, Attorneys for Attorney-Respondent.

Colorado District Attorney's Council, Peter A. Weir, Executive Director, Denver, Colorado, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, Attorneys for Amicus Curiae for Attorney-Respondent.

Justice KOURLIS delivered the Opinion of the Court.

This case involves an important issue of first impression: namely, what are the parameters of a prosecutor's ethical duty to disclose exculpatory material to the defense under Colo. RPC 3.8(d)? We hold that Rule 3.8(d) requires prosecutors to disclose exculpatory evidence to the defense in advance of any critical stage of the proceeding. The respondent¹ in these proceedings did not do so. However, we also hold that a prosecutor violates Rule 3.8(d) only if he or she acts intentionally. In this case, the hearing board did not find that the respondent acted intentionally. Therefore, we decline to find a violation of the rule, and we reverse the hearing board's imposition of a public censure.

I. Facts

The complaint charged Attorney C,² an assistant district attorney, with misconduct in two separate preliminary hearings. In the first matter, a defendant, John Skidmore, faced second-degree assault, § 18-3-203(1)(g), 6 C.R.S. (2000) (intending to cause bodily injury to another, the actor causes serious bodily injury), a class 4 felony, § 18-3-203(2)(b). The case involved allegations of domestic violence. A preliminary hearing was scheduled in county court at 1:30 p.m. on Tuesday, May 19, 1998. The respondent represented the People; attorney George Buck represented Skidmore. On May 15, the Friday before the preliminary hearing, the respondent extended an offer to the defendant to plead guilty to third-degree assault. In preparing for the hearing on May 18, she examined the file and discovered a letter written by the alleged victim on May 14. In it, the victim recanted her earlier statements to the police that the defendant had pushed her down, breaking her finger. Instead, she now maintained that the defendant had bumped into her accidentally and she fell down. The letter was consistent with Skidmore's version of events.

The respondent realized that the letter was exculpatory evidence that she needed to provide to defense counsel. However, she rationalized that the letter was not material in the constitutional sense at the preliminary hearing stage because the letter would not change the outcome of the preliminary hearing, so she decided to withhold the letter from the defense until after the hearing. In addition, she did not modify or withdraw her plea offer in light of the victim's recantation. Both the respondent and Buck were present in court on May 19 for the preliminary hearing, and the hearing board found that although she "had sufficient time and opportunity to give Buck a copy of the letter or to advise him of it prior to the commencement of the preliminary hearing, she elected not to do so."

Buck saw that the alleged victim was not present in the courtroom to testify, and advised Skidmore that the case likely would be bound over to county court on a misdemeanor assault charge, rather than a felony in district court. On Buck's advice, Skidmore agreed to waive the preliminary hearing.

After the hearing, the respondent followed normal office procedures for discovery and placed the letter in a basket for a secretary to send to Buck. Buck received the letter two days after the hearing. Recognizing that the respondent had delayed disclosing the letter until after the hearing, Buck filed a motion for sanctions, referring to the disclosure obligations of Crim. P. 16 and Colo. RPC 3.8(d). The district attorney's office offered to dismiss the charges against Skidmore if Buck withdrew the motion for sanctions, and ultimately that was the outcome.

The second matter occurred five months later. The defendant, the victim's stepbrother (Stepbrother), was charged with sexually assaulting his eleven-year-old stepsister. Stepbrother's father was also charged with sexually assaulting the girl, his stepdaughter. In multiple interviews with different people, the girl alleged that her stepbrother had licked or kissed her genital area. The trial court appointed Buck to represent Stepbrother. Again, the respondent was to represent the People at the preliminary hearing, which was scheduled for the afternoon of October 21, 1998. On the morning of the hearing, the respondent interviewed the victim in the district attorney's office. Donna Craig Rice, a victim advocate at the office, was present during the interview. For the first time, the girl denied any oral-genital contact with her stepbrother, and said she did not remember telling anyone that such contact had occurred. Instead, the victim stated that Stepbrother had touched her genital area with his hand and his penis.

The respondent recognized that this change in the girl's story was exculpatory evidence that had to be disclosed to the defense. She asked Rice to prepare a memo reflecting the girl's new story. The respondent decided not to inform Buck of the changed version herself before the hearing because she was concerned that her whole office could be disqualified if Buck called her as a witness. She consulted with her boss, the district attorney, who did not object to this course of action. Buck, the respondent, and Rice arrived at the courthouse forty-five minutes before the hearing, but neither Rice nor the respondent told Buck of the changes in the victim's testimony. The hearing board majority specifically found that the respondent had the time and opportunity to disclose the information prior to the preliminary hearing.

Instead, the respondent elicited testimony from a social services caseworker that child victims often alter their version of events over time. During direct examination, the victim testified that there had been genital to genital and manual contact between her and her stepbrother. The respondent did not ask her about oral-genital contact, and the victim did not testify regarding her denial that this had occurred. Buck moved to strike the victim's testimony about the genital and manual contacts because he had no prior knowledge of these allegations. The court overruled the objection, but reprimanded the respondent for not disclosing the new testimony to the defense before the hearing. The court ruled that it could not find the victim's statements implausible as a matter of law, and found probable cause to bind Stepbrother over to district court.

The day after the hearing, Buck received by first-class mail the memo that Rice had prepared under the respondent's direction. Buck filed a motion for sanctions, but the trial court denied it on the grounds that the respondent's failure to disclose the exculpatory statements would not have changed the outcome of the preliminary hearing. The district attorney dismissed the charges against Stepbrother in January 1999.

The presiding disciplinary judge and one hearing board member concluded that the respondent's conduct in both the Skidmore and Stepbrother cases violated Colo. RPC 3.8(d), which provides:

Rule 3.8. Special Responsibilities Of A Prosecutor

The prosecutor in a criminal case shall:

. . .

(d) make timely disclosure to the defense of all evidence or³ information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . . .

(Emphasis added.) Weighing the aggravating factors against the mitigating factors, the majority determined that a public censure would be the appropriate sanction. One board member dissented, finding no violation of Rule 3.8(d). The respondent appealed to this court pursuant to C.R.C.P. 251.27.

II. Analysis

The respondent presents the following issues in the opening brief:

1. Whether Colo. RPC 3.8(d) applies to the failure to disclose recently discovered exculpatory information immediately prior to a preliminary hearing.

2. Whether a violation of Colo. RPC 3.8(d) can be established when a prosecutor fails to disclose exculpatory information, but there is no reasonable probability that had the information been disclosed ahead of time the outcome of the proceeding would have been different.

3. Whether the Hearing Board and PDJ erred in finding that the respondent violated Colo. RPC 3.8(d) in the Skidmore and Stepbrother cases.

The respondent makes two primary arguments: the first is that there can be no violation of Rule 3.8 when attorney regulation counsel fails to establish that, had the information been disclosed, the outcome of the proceeding would have been different. Second, the respondent makes an argument based on the language of the rule that the disclosure was "timely."

A. Materiality

The respondent first argues that the evidence was not material to the outcome of the preliminary hearing. She does not argue that it was not constitutionally material to the outcome of the case as a whole, but rather that it would not have made a difference to the outcome of the preliminary hearing. In order to address her argument, we must first determine the extent to which Rule 3.8(d) includes a concept of materiality.

The hearing board⁴ majority⁵ held that the rule does not incorporate a Brady constitutional materiality standard, but rather is broader and more encompassing than such a standard would require. We recognize that there is support for that position,⁶ but because we decline to impose inconsistent obligations upon prosecutors attempting to comply with both procedural rules and rules of professional conduct, we decline to adopt it.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. (1194, 10...