People v. Mucklow

• Decision Date: 26 December 2000
• Docket Number: No. 00PDJ010.,00PDJ010.
• Citation: 35 P.3d 527
• Parties: The PEOPLE of the State Of Colorado, Complainant, v. Pamela F. MUCKLOW, Respondent.
• Court: Colorado Supreme Court

35 P.3d 527

The PEOPLE of the State Of Colorado, Complainant, v. Pamela F. MUCKLOW, Respondent.

No. 00PDJ010.

Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.

December 26, 2000.

Opinion issued by Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board members RICHARD P. HOLME, and HENRY C. FREY, both members of the bar. Hearing Board Member RICHARD P. HOLME dissents.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: PUBLIC CENSURE

This matter was heard on July 13, 2000 before the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, Richard P. Holme, and Henry C. Frey. Charles E. Mortimer, Jr., assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). David R. Brougham represented respondent. The People's exhibits 1 through 7 and respondent's exhibits A, C and D were admitted into evidence by stipulation. The PDJ and Hearing Board heard testimony from the People's witnesses George R. Buck, Jr. and Pamela F. Mucklow ("Mucklow") and from respondent's witness Michael F. Green. Mucklow testified on her own behalf. The PDJ and Hearing Board considered the testimony and exhibits admitted into evidence, assessed the credibility of the witnesses and made the following findings of fact which were established by clear and convincing evidence:

I. FINDINGS OF FACT

Pamela F. Mucklow ("Mucklow") has taken the oath of admission, was admitted to the bar of this court on October 14, 1994, and is registered upon the official records as attorney registration number 24710. Mucklow is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

Following her admission to the bar, Mucklow spent three years seeking a full time attorney position. During the three-year period she served in various volunteer positions, worked as a guardian ad litem and as an intern with the City of Aurora and later with the City and County of Denver. Mucklow was employed as a deputy district attorney in the 22nd Judicial District beginning in July 1997. She had not previously been employed as a deputy district attorney.

The Skidmore Matter

In April 1998, John Skidmore ("Skidmore") was charged with second degree assault in violation of § 18-3-203, 6 C.R.S. (1998) in connection with a domestic disturbance. Mucklow was assigned to prosecute the case. Skidmore hired George R. Buck, Jr., ("Buck") to represent him. A preliminary hearing was scheduled in county court for Tuesday, May 19, 1998 at 1:30 p.m. at the courthouse in Cortez, Colorado.

On May 14, 1998, the district attorney's office received a letter from the complaining witness in the Skidmore case in which the complaining witness recanted the version of events which provided a basis for the criminal charges. On Friday, May 15, 1998 in preparation for the preliminary hearing the following Tuesday, Mucklow for the first time looked at the outer jacket of the Skidmore file and noted that no plea bargain had been extended to Buck. She telephoned Buck's office and left a message stating that the prosecution would accept a plea of guilty to assault in the third degree. Buck communicated the plea bargain to his client on Monday, May 18, 1998. There were no further discussions regarding the plea bargain.

Also on Monday, May 18th, while reviewing the Skidmore file for the preliminary hearing in more detail, Mucklow discovered the letter from the alleged victim of the assault. In the letter, the alleged victim recanted her allegation that Skidmore had assaulted her. Mucklow immediately recognized that the letter constituted exculpatory evidence which had to be provided to defense counsel. However, she decided that the letter and its contents was not material to the issues before the court at the preliminary hearing and, therefore, neither disclosure of the letter nor its contents was necessary prior to that proceeding. Mucklow determined, in light of the circumstantial evidence she intended to offer, that the exculpatory letter from the alleged victim would not alter her approach to the preliminary hearing nor would it alter the outcome. Mucklow perceived the letter to be just one more instance of a domestic violence victim recanting an earlier version of events after the passage of time. It was Mucklow's belief that such recanting letters were often instigated by the person charged with the criminal offense and therefore concluded that Buck probably already knew about it.¹ Notwithstanding her knowledge that the alleged victim had recanted her version of events, Mucklow neither modified nor withdrew the plea bargain she had previously extended to defense counsel.

At the appointed time on May 19, 1998, both Mucklow and Buck appeared in the courtroom for the preliminary hearing. Although Mucklow 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 observed that the alleged victim was not present to testify. Consequently, he advised his client that without the victim's testimony, there was a strong likelihood that the case would not be bound over to district court on the felony charge of second degree assault but that it was probable that it would be bound over to county court on a misdemeanor charge of third degree assault, resulting in a county court trial to a jury of six rather than a district court trial to a jury of twelve. Buck advised his client that a jury of twelve was strategically more favorable to Skidmore than a jury of six. Based on this advice, Skidmore waived the preliminary hearing and requested that the matter be removed for trial to the district court in Montezuma County. The court bound the matter over to the district court.

Immediately following the preliminary hearing, Mucklow followed the normal office routine relating to disclosure of exculpatory documentation and placed the letter in the discovery workbasket to be provided to defendant's counsel. The letter was processed by the office staff and sent to opposing counsel via first class mail.

On May 21, 1998, two days after the preliminary hearing, Buck received a copy of the alleged victim's letter via first class mail from the district attorney's office. Buck recognized that Mucklow had delayed disclosure of the letter until after the preliminary hearing and moved for sanctions against the prosecutor's office stating that Mucklow failed to make timely disclosure to the defense of all evidence or information known to the prosecutor that tended to negate the guilt of the accused or mitigate the offense. Buck's motion referred specifically to the disclosure obligations set forth in Colo. R.Crim. P. 16 and Colo. RPC 3.8(d).² The district attorney's office thereafter offered to dismiss the case if Skidmore would withdraw the motion for sanctions. The charges against Skidmore were dismissed.

At the time of these events, Mucklow understood her obligations under The Rules of Professional Conduct to be the same as her obligations under Colo. R.Crim. P. 16 and controlling constitutional law. Mucklow could not clearly recall whether she noticed Buck's reference to Colo. RPC 3.8(d) in the motion for sanctions.

The Stepbrother Sexual Abuse Matter

Five months after the Skidmore matter, Mucklow was assigned to a criminal matter involving an eleven-year-old girl who alleged that her stepbrother had sexually molested her. The stepbrother was charged with sexual assault on a child § 18-3-405, 6 C.R.S. (1999) (a class four felony) sexual assault on a child by one in a position of trust § 18-3-405.3, 6 C.R.S. (1999) (a class three felony) and sexual assault on a child as a pattern of behavior, § 18-3-405(2)(d), 6 C.R.S. (1999). In multiple interviews with different individuals, the child had described oral-genital contact occurring between her stepbrother and herself. Buck was appointed to represent the stepbrother.

A preliminary hearing was initially scheduled for September 22, 1998 and continued to October 21, 1998 upon Buck's motion to allow time to conduct discovery. Sometime during the morning of the preliminary hearing, Mucklow interviewed the alleged child victim with Donna Craig Rice ("Rice"), a volunteer victim advocate from the district attorney's office. Mucklow had arranged for Rice to be present for two reasons: to disclose information to defense counsel if necessary, and to lend support to the alleged victim. During the interview, the victim denied oral-genital contact ever occurring between herself and her stepbrother, did not remember it ever happening, and did not remember telling anyone it had occurred. She stated that there had been sexual conduct of a different nature — genital to genital contact and manual to genital contact — between herself and her stepbrother. Mucklow immediately recognized that the interview had generated information of an exculpatory nature which had to be disclosed to Buck. At a break in the interview, Mucklow spoke to Rice and asked her to prepare a memorandum reflecting the victim's altered version of events for disclosure to the defense.³ Mucklow did not, however, indicate to Rice that there was any urgency to the preparation of the memorandum or disclosure of the information to the defense. Rice left immediately after the conclusion of the interview.

Mucklow considered informing Buck of the changed victim version prior to the scheduled hearing but was concerned that the district attorney's office might be disqualified from the case if Buck called her as a witness during the preliminary hearing to testify regarding the interview. She discussed the matter with the District Attorney, Michael Green, and they agreed it would be better to avoid potential disqualification by disclosing the new version of events through direct examination of the child victim at the preliminary hearing rather than informing Buck of the change in the child victim's testimony...