Office of Lawyer Regulation v. Riek (In re Riek)

• Decision Date: 23 July 2013
• Docket Number: No. 2011AP1049–D.,2011AP1049–D.
• Citation: 350 Wis.2d 684,834 N.W.2d 384,2013 WI 81
• Parties: In the Matter of Disciplinary Proceedings Against Sharon A. RIEK, Attorney at Law: Office of Lawyer Regulation, Complainant–Appellant, v. Sharon A. Riek, Respondent–Respondent.
• Court: Wisconsin Supreme Court

350 Wis.2d 684

834 N.W.2d 384

2013 WI 81

In the Matter of Disciplinary Proceedings Against Sharon A. RIEK, Attorney at Law:Office of Lawyer Regulation, Complainant–Appellant,

v.Sharon A. Riek, Respondent–Respondent.

No. 2011AP1049–D.

Supreme Court of Wisconsin.

Argued Feb. 26, 2013.

Decided July 23, 2013.

For the complainant-appellant, there were briefs by Jonathan E. Hendrix and the Office of Lawyer Regulation, and oral argument by Jonathan E. Hendrix.

For the respondent-respondent, there was a brief by Martin E. Kohler and Geoffrey R. Misfeldt and Kohler and Hart, S.C., Milwaukee, and oral argument by Geoffrey R. Misfeldt.

ATTORNEY disciplinary proceeding. Complaint dismissed.

PER CURIAM.

[350 Wis.2d 687]¶ 1 The Office of Lawyer Regulation (OLR) appeals a referee's decision recommending the court dismiss a disciplinary complaint alleging that Attorney Sharon A. Riek violated SCR 20:3.8(f)(1) and Wis. Stat. § 971.23(1)(h) (2007–08),¹ made actionable via SCR 20:8.4(f). We agree with the referee's conclusion that Attorney Riek did not violate the aforementioned rules. Accordingly, the complaint is dismissed.

¶ 2 Attorney Riek is an assistant district attorney in Racine County. She was licensed to practice law in Wisconsin in 1986. In 1999 Attorney Riek accepted a consensual private reprimand for failing to correct a false statement made to a court by her witness. Private Reprimand, No. 1999–25.

¶ 3 This disciplinary matter stems from Attorney Riek's allegedly belated disclosure of certain information obtained during the prosecution of Tyrone Smith (Smith).

[350 Wis.2d 688]¶ 4 On August 18, 2008, Smith was arrested for possession of marijuana discovered in his vehicle during a traffic stop. At the time, Smith was on extended supervision for possession with intent to deliver cocaine. Isaiah Simpson (Simpson) was a passenger in the vehicle during the stop.

¶ 5 On August 19, 2008, the Racine County district attorney's office charged Smith with possession of marijuana as a repeat offender. Attorney Riek was assigned to prosecute Smith's case. Smith's supervising agent, Agent Leah Zeni, began proceedings to revoke Smith's extended supervision. Attorney Mark Lukoff was appointed to represent Smith in both the revocation proceeding and the marijuana possession case.

¶ 6 On August 22, 2008, Simpson, the passenger in the vehicle, informed Agent Zeni that the marijuana found in the vehicle belonged to him, not to Smith. Agent Zeni told Simpson to report this information to the Racine County district attorney's office and advised Attorney Lukoff of Simpson's confession.

¶ 7 Meanwhile, on September 4, 2008, the circuit court held a preliminary hearing in Smith's marijuana possession case. After that hearing, Smith's attorney filed a demand for discovery and inspection with the court and served it upon Attorney Riek. The discovery demand included a routine demand that the State “[d]isclose to defendant any exculpatory evidence.” SeeWis. Stat. § 971.23(1)(h).

¶ 8 Attorney Lukoff received a copy of Simpson's statement to Agent Zeni before Smith's revocation proceeding. At Smith's revocation hearing on October 15, 2008, Agent Zeni entered Simpson's confession into evidence. Smith based his defense at the revocation hearing on Simpson's confession.

[350 Wis.2d 689]¶ 9 On October 27, 2008, the administrative law judge (ALJ) declined to revoke Smith's extended supervision, stating, “Based on Mr. Simpson's statement, I find insufficient credible evidence to attribute the marijuana to Mr. Smith.”

¶ 10 Agent Zeni appealed the ALJ's decision, stating, inter alia:

[A]fter providing his statement, [Isaiah] Simpson was instructed by this agent to go to the Racine District Attorney's officeand provide a signed affidavit admitting the marijuana in the vehicle was his. At the time of the Final Revocation hearing, Mr. Simpson failed to go to the Racine District Attorney's office....

The Division of Hearing and Appeals sustained the ALJ's decision on November 13, 2008, noting that “[i]t is also clear that Smith's friend, [Isaiah] Simpson, brought the marijuana into Smith's car.”

¶ 11 In early November 2008, Simpson did go to the Racine County district attorney's Office where he met with District Attorney Michael E. Nieskes (D.A. Nieskes) and informed D.A. Nieskes that the marijuana found in Smith's vehicle belonged to him, not to Smith. As a result of that November meeting, D.A. Nieskes wrote a note (the Simpson Note) that stated, “[Isaiah] Simpson 1010 Park Ave 637–9029 states that the dope is his not Tyrone [Smith's].”

¶ 12 The Simpson Note was not a sworn statement. It was unsigned and undated. Later that morning, D.A. Nieskes told Attorney Riek about his meeting with Simpson and gave her the Simpson Note. Attorney Riek recalls being advised of Simpson's statement to D.A. Nieskes but she does not recall receiving the Simpson Note.

[350 Wis.2d 690]¶ 13 On November 7, 2008, Attorney Riek asked the Racine County sheriff's department to investigate Simpson's statement that the marijuana belonged to him. The Racine County sheriff's department had difficulty contacting Simpson.

¶ 14 Meanwhile, Attorney Lukoff's own investigator was also trying to contact Simpson. In January 2009 Attorney Lukoff's investigator spoke with Simpson. Simpson told Attorney Lukoff's investigator that the marijuana was his, not Smith's.

¶ 15 On February 5, 2009, Attorney Lukoff sent Attorney Riek a witness list that included Simpson. Attorney Lukoff enclosed Simpson's written statement to Agent Zeni and the defense investigator's summary of the January meeting with Simpson.

¶ 16 On March 26, 2009, Attorney Lukoff personally met with Simpson in preparation for Smith's trial. During this meeting, Attorney Lukoff learned, for the first time, that Simpson had met with D.A. Nieskes. Attorney Lukoff promptly sent a letter to Attorney Riek, by facsimile, asking for a copy of any information Simpson provided to D.A. Nieskes.

¶ 17 The next day, March 27, 2009, now four days before Smith's trial, Attorney Riek sent Attorney Lukoff a copy of the Simpson Note. Her cover letter included the statement that, “[a]s I indicated to you earlier today, based upon this note, I sent a request to the Racine County Sheriff's Department to have them follow up on this information and Isaiah Simpson declined to cooperate and provide a statement.” Attorney Riek later told the OLR that she found the Simpson Note among unrelated papers on her desk on or about March 26, 2009.

¶ 18 Smith's trial was scheduled to commence on March 31, 2009. When Simpson arrived for the trial that day, Attorney Riek directed a law enforcement officer to interview him. Simpson again admitted the marijuana was his, not Smith's.

¶ 19 Attorney Riek then moved to dismiss Smith's case. The criminal charges against Smith were dismissed on March 31, 2009, prior to the commencement of trial.

¶ 20 On May 9, 2011, the OLR filed a disciplinary complaint against Attorney Riek alleging that by failing to promptly provide the defense with exculpatory informationconcerning a third party's admission of possessing marijuana that Smith was charged with possessing, Attorney Riek violated SCR 20:3.8(f)(1) and Wis. Stat. § 971.23(1)(h), enforceable via SCR 20:8.4(f). The OLR sought a public reprimand and imposition of costs.

¶ 21 Referee Michael Dubis was appointed and discovery ensued. Both parties moved for summary judgment.

¶ 22 On August 6, 2012, Referee Dubis issued a report recommending summary judgment in favor of Attorney Riek. The referee found that the exculpatory information at issue was already in possession of the defense at least as early as October 15, 2008, the date of Smith's revocation hearing, some five months prior to trial. Notably, the referee determined that a prosecutor's ethical duty under SCR 20:3.8(f) is consistent with the constitutional requirements imposed pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The referee stated that SCR 20:3.8 “must include Brady's materiality standard. To hold otherwise would be to require disclosure of favorable evidence without regard to that evidence's significance and no matter how many times the defense has already heard/received the same.” The referee concluded that Attorney Riek did not violate either SCR 20:3.8(f)(1) or Wis. Stat. § 971.23(1)(h) and recommended this court dismiss the disciplinary complaint.

¶ 23 The OLR appeals. The OLR maintains that Attorney Riek violated two separate legal standards, SCR 20:3.8(f)(1) and Wis. Stat. § 971.23(1)(h). The OLR challenges, on appeal, the referee's interpretation of SCR 20:3.8(f)(1). Oral argument was conducted on February 26, 2013. ²

¶ 24 We will affirm a referee's findings of fact unless they are clearly erroneous. In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis.2d 43, 675 N.W.2d 747. We review a referee's conclusions of law de novo. Id.

¶ 25 We first consider whether Attorney Riek violated SCR 20:3.8(f)(1). This inquiry requires us to consider the nature and scope of prosecutors' disclosure obligations under both constitutional and ethical standards.

¶ 26 Federal court decisions and decisions of this court establish constitutional minimums related to a prosecutor's pre-trial disclosure obligations. In Brady the U.S. Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194.Subsequent decisions clarify that evidence is “material ... if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Thus, simply “showing that the prosecution knew of an item of favorable...