Lawyer Disciplinary Bd. v. Hatcher

• Decision Date: 21 February 1997
• Docket Number: No. 22429,22429
• Citation: 199 W.Va. 227,483 S.E.2d 810
• Parties: LAWYER DISCIPLINARY BOARD, Complainant, v. Charles H. HATCHER, Jr., a Member of the West Virginia State Bar, Respondent.
• Court: West Virginia Supreme Court

Page 810

483 S.E.2d 810

199 W.Va. 227

LAWYER DISCIPLINARY BOARD, Complainant, v. Charles H. HATCHER, Jr., a Member of the West Virginia State

Bar, Respondent.

No. 22429.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1997.

Decided Feb. 21, 1997.

Syllabus by the Court

1. "A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the Committee's recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the Committee's findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syl. pt. 3,Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

2. "A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution." Syl. pt. 4, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).

3. "Gross infidelity by a prosecuting attorney to his trust and duty as such officer, being connected with his character as an attorney, is misconduct for which his name may be stricken, by summary process, from the roll of attorneys entitled to practice in a court." Syl. pt. 1, State v. Hays, 64 W.Va. 45, 61 S.E. 355 (1908).

4. A prosecutor in West Virginia, as an attorney licensed to practice law in this State, is subject to the rules of ethics currently set forth in the West Virginia Rules of Professional Conduct. Concomitant with the duty of a prosecutor to seek justice, rather than merely to convict, is a duty to disclose evidence which is known to the prosecutor tending to exculpate the accused in a criminal proceeding. In addition to the risk of bringing reversible error to the criminal proceeding, a prosecutor, who knowingly fails to make a timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, also runs the risk of violating the West Virginia Rules of Professional Conduct, particularly Rule 3.8, concerning the special responsibilities of a prosecutor.

Sherri D. Goodman, Chief Lawyer Disciplinary Counsel, Charleston, for Complainant.

James D. McQueen, Jr., Kathlene Harmon-McQueen, McQueen, Harmon, Potter & Cleek, L.C., Charleston, Forest J. Bowman, Morgantown, for Respondent.

McHUGH, Justice:

This case is before this Court upon a review of the August 9, 1996, recommended decision of the Hearing Panel Subcommittee of the Lawyer Disciplinary Board of the West Virginia State Bar concerning the respondent, Charles M. Hatcher, Jr., an assistant prosecuting attorney in Cabell County, West Virginia. The respondent was charged, inter alia, with a knowing failure to timely disclose exculpatory evidence to defense counsel during an underlying criminal prosecution. According to the Hearing Panel Subcommittee and the Office of Disciplinary Counsel, the charge has been substantiated and constitutes an ethics violation warranting sanctions. The respondent asserts that no ethics violations occurred.

This Court has before it the recommended decision, all matters of record and the briefs and argument of counsel. For the reasons stated below, this Court concludes that none of the charges brought against the respondent were established by clear and convincing evidence. Consequently, we direct that the charges be dismissed.

I

The underlying case is State v. Glen Dale Woodall, No. 87-F-46 (Cabell County). In March 1987, Woodall was arrested and charged with various criminal acts, including the kidnapping and first degree sexual assault of two women abducted at the Huntington Mall near Barboursville, West Virginia. A detailed account of the incidents alleged to have been committed by Woodall appears in State v. Woodall, 182 W.Va. 15, 385 S.E.2d 253 (1989). Attorneys James Spurlock, Jay Lazelle and Carl Rhodes were appointed as defense counsel, and a trial was conducted in late June and early July 1987. A major issue during the trial was the identity of the assailant, and Woodall asserted the defense of alibi. Nevertheless, Woodall was convicted upon all charges and was sentenced upon the kidnappings to two life terms without the possibility of parole, plus a term of years with regard to the other crimes.

Subsequently, however, a DNA test excluded Woodall as the perpetrator of the crimes, and Woodall, seeking relief in habeas corpus, was awarded a new trial. Ultimately, in 1992, the charges were dismissed. Woodall spent four years and four months in incarceration and another ten months upon home confinement prior to his release from prosecution.

II

The respondent, as assistant prosecuting attorney for Cabell County, had primary responsibility for the prosecution of Woodall with regard to the 1987 trial. During various proceedings thereafter, Woodall's new counsel, Lonnie Simmons, concluded that certain exculpatory matters had not been provided to Woodall before or during the 1987 trial. An ethics complaint was thus filed against the respondent.

On July 5, 1994, the Investigative Panel of the West Virginia State Bar filed a statement of formal charges alleging that the respondent had violated the rules of ethics in failing to disclose various matters to Woodall's counsel with regard to the 1987 trial. Specifically, the statement of charges alleged (1) a failure to disclose two criminal complaint forms containing descriptions by the victims of their assailant's dress and appearance, (2) a failure to disclose tape recordings or transcripts of hypnosis sessions of the two victims, (3) a failure to disclose a hair analysis report from the West Virginia State Police Crime Lab and (4) a failure to disclose a tape recording or a transcript of a joint conversation between the two victims.

According to the Investigative Panel, in failing to make the above disclosures, the respondent violated the following disciplinary rules of the West Virginia Code of Professional Responsibility: (1) DR 1-102(A)(5), which provides that a lawyer shall not engage in conduct "that is prejudicial to the administration of justice," (2) DR 7-102(A)(3), which provides that a lawyer shall not conceal or knowingly fail to disclose "that which he is required by law to reveal" and (3) DR 7-103(B), which provides that a public prosecutor or other government lawyer in criminal litigation

shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. ¹

(footnote added).

In addition, the Investigative Panel's statement of charges asserted that the respondent intentionally misrepresented facts during certain post-trial proceedings. According to the Investigative Panel, such misrepresentation constituted a breach of Rule 8.4(d) of the West Virginia Rules of Professional Conduct, the current rules which superseded the Code of Professional Responsibility. See n. 1, supra. According to Rule 8.4(d), it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice [.]"

The statement of formal charges was brought before the Hearing Panel Subcommittee of the Lawyer Disciplinary Board for an evidentiary hearing. Two such hearings were conducted in February and April 1995. Thereafter, on August 9, 1996, the Hearing Panel Subcommittee filed its recommended decision with this Court. Specifically, the Hearing Panel Subcommittee found a lack of evidence with regard to three of the charges, i.e., the failure to disclose the criminal complaint forms, the failure to disclose the hair analysis report and the alleged misrepresentation of facts. However, the Hearing Panel Subcommittee found that clear and convincing evidence had been established that the respondent had knowingly failed to disclose tape recordings or transcripts of the hypnosis sessions of the two victims and had knowingly failed to disclose a tape recording or a transcript of a joint conversation between the two victims.

With regard to the hypnosis sessions, the Hearing Panel Subcommittee found:

Disciplinary Counsel alleged that the respondent knew that the two victims had been hypnotized prior to trial and that these hypnotic sessions were tape recorded and that neither the fact of the hypnosis nor the tape recordings were ever disclosed to the defense or the Court.... The respondent testified that defense counsel was made aware of the victims' hypnosis, but defense counsel testified that they did not believe they were made aware of this fact, but that their memories could not be 100% certain because of the passage of time. However, there was nothing presented by the respondent from the court record below that indicated that such a disclosure had been made to the defendant. There was conflicting testimony presented as to whether the defendant's counsel knew of the victims' hypnotism. However, the Subcommittee finds most persuasive the testimony that neither the defendant, nor his counsel, were aware of the hypnotism or ever received copies of the tapes or transcripts.

Moreover, with regard to the joint conversation between the two victims, the Hearing Panel Subcommittee found:

Another item of evidence which was alleged not to have been disclosed to defendant's counsel was a joint statement of the two victims which was tape recorded at the State Police Barracks in Huntington while the two victims exchanged information about their assaults.... There was nothing...