State v. Miller

• Decision Date: 28 June 2013
• Docket Number: No. SCBD–5732.,SCBD–5732.
• Citation: 309 P.3d 108
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Robert Bradley MILLER, Respondent.
• Court: Oklahoma Supreme Court

309 P.3d 108

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,

v.Robert Bradley MILLER, Respondent.

No. SCBD–5732.

Supreme Court of Oklahoma.

June 25, 2013.

As Corrected June 28, 2013.

Bar Discipline Proceeding.

¶ 0 The complainant, Oklahoma Bar Association, charged the respondent, Robert Bradley Miller, with five counts of professional misconduct associated with the attorney's alleged conduct concerning events before, during, and after two murder trials which he prosecuted as an Assistant District Attorney for the Oklahoma County District Attorney's office. The prosecutions stemmed from a drive-by shooting on June 24, 1993, in which a fourteen year old girl was murdered and a gang member was injured by alleged rival gang members near the Ambassador Court Apartments in Oklahoma City. The trial panel recommended a one year suspension from the practice of law and that costs be imposed. Upon de novo review, we hold that the respondent's conduct warrants a 180 day suspension and a partial payment of costs.

ATTORNEY SUSPENDED FOR 180 DAYS; PARTIAL COSTS IMPOSED.

Debbie Maddox, Assistant General Counsel, Katherine M. Ogden, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Murray E. Abowitz, Kayce L. Gisinger, Oklahoma City, Oklahoma, for Respondent.

KAUGER, J.:

¶ 1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Robert Bradley Miller, (attorney/Miller) with five counts of professional misconduct resulting from circumstances surrounding the alleged irresponsible and deceitful prosecution of murder trials in his capacity as Assistant District Attorney for Oklahoma County. The Bar Association alleged that the respondent's actions involved: dishonesty, fraud, unfairness, lack of candor toward the tribunal, a violation of special responsibilities as a prosecutor and the Rules of Professional Conduct, improperly dealing with unrepresented persons, lack of respect of rights for third parties, improper influence of an official, and a lawyer acting as an advocate in a trial and engaging in conduct prejudicial to the administration of justice.

¶ 2 The Bar Association argues that this conduct was in violation of Rules 3.3,¹3.4,²3.5,³3.7,⁴3.8, ⁵4.1,⁶4.3,⁷4.4,⁸ and 8.4(a)(c)(d) and (e) ⁹ of the Rules of Professional Conduct and Rule 1.3,¹⁰ of the Rules Governing Disciplinary Proceedings. After a lengthy, fourteen day evidentiary hearing held between June 6, and June 26, 2012, the trial panel recommended a one year suspension and payment of the entire costs of these proceedings which amounted to $61,920.30. Upon a de novo review,¹¹ we hold that the respondent's conduct warrants a 180 day suspension and the imposition of partial costs.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 The facts and procedural background of this cause span over 20 years and concern two murder trials with numerous appeals. The report and recommendation of the Professional Responsibility Tribunal (PRT) of the Bar Association provides a detailed, sixty-eight page accurate recitation of the facts and procedural history, along with its findings. After a thorough and de novo review of the record, we agree with the PRT's review of the facts and procedural background, and hereby adopt and incorporate its report filed September 28, 2012, as an appendix to this opinion to supplement the brief facts provided herein.

¶ 4 On June 24, 1993, seventeen year old gang member, Derrick Smith, and a fourteen year old acquaintance, Shauna Farrow, were walking home from a party at the Ambassador Court Apartments in Oklahoma City around 11:00 p.m. A car approached them, the driver stopped, opened the doors, and began firing guns at them. Farrow was gunned down and killed in the drive-by shooting and Smith's leg was injured. Smith was the only witness and he gave, and continues to give to this day, various conflicting statements as to what occurred.

¶ 5 Smith's rival gang members, Yancy Lyndell Douglas and Paris LaPriest Powell were each convicted of first degree malice murder and shooting with intent to kill. They were tried separately, almost two years apart,¹² and both juries assessed the death penalty for Farrow's death, and life imprisonment for Smith's injury. Smith was the key witness at both trials who identified Douglas and Powell as the shooters. Both cases were appealed to the Oklahoma Court of Criminal Appeals and direct appeal relief and post conviction relief were denied. Relief was also sought in the federal courts and it culminated in the 10th Circuit Court of Civil Appeals' opinion in Douglas v. Workman, 560 F.3d 1156 (10th Cir.2009), which resulted in the reversal of both convictions. The basis of this reversal was the respondent's “egregious conduct” as prosecutor. The Oklahoma County District Attorney's office has declined to retry Douglas and Powell.

¶ 6 The Bar Association filed a complaint with the Chief Justice on January 25, 2011, against the respondent, nearly eighteen years after the shootings occurred. The initial complaint contained four counts of misconduct, but another count was added almost a year later on January 18, 2012. The filing of the complaint was precipitated by the 10th Circuit Court of Appeals' opinion in Douglas v. Workman, supra. However, to avoid the respondent's due process complaints,¹³ neither the Bar Association nor the PRT relied on the finding or facts of the federal proceedings to prove its alleged misconduct. Instead, it independently introduced evidence specifically related to the Oklahoma Rules of Professional Conduct, and the PRT gave no deference to the federal court's findings and neither do we. Rather, on September 28, 2012, the PRT made its own factual determinations on which to base its recommended discipline. On October 23, 2012, the National Association of Criminal Defense Lawyers filed a motion for leave to file an amicus brief which the Chief Justice denied on October 25, 2012.¹⁴

¶ 7 The cause was assigned to this office on January 9, 2013. The 10th Circuit's findings notwithstanding, the dispositive issue here is whether the circumstances which led to reversal of the death penalty conviction for prosecutorial misconduct also constitute misconduct requiring attorney discipline.

STANDARD OF REVIEW

¶ 8 The responsibility of this Court in disciplinary proceedings is not to punish but rather to inquire into and to gauge a lawyer's continued fitness to practice law, with a purpose of safeguarding the interest of the public, of the courts, and of the legal profession.¹⁵ The nondelegable, constitutional responsibility to regulate the practice and the ethics, licensure, and discipline of legal practitioners is solely vested in this Court.¹⁶

¶ 9 In disciplinary matters, this Court possesses exclusive original jurisdiction.¹⁷ To keep the investigatory and adjudicatory functions separate in bar disciplinary proceedings, this Court has assigned limited duties to the Oklahoma Bar Association, and the PRT.¹⁸ In performing their roles, the Bar and PRT act as an aid to the Court, but do not act on behalf of the Court.¹⁹ We are not bound by agreed findings, conclusions of law or recommendations for discipline.²⁰ Rather, the ultimate responsibility for imposition of professional discipline is solely within the purview of this Court.²¹

¶ 10 In considering the record before us, as well as the recommendations of the Professional Responsibility Tribunal, our standard of review is de novo.²² Before we may impose discipline upon an attorney, the charges must be established by clear and convincing evidence.²³ The function of disciplinary proceedings is not punishment. The purpose of discipline is to gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and of the legal profession.²⁴

¶ 11 We have reviewed the evidence and find that the PRT's findings of fact are supported by the record, but do not agree that all of the allegations of misconduct were established by clear and convincing evidence. Nor do we agree with the recommended discipline or assessment of the amount of costs.

COUNT 1 OF MISCONDUCT: DERRICK SMITH

¶ 12 Count 1 of the misconduct centers around the surviving drive by victim, Derrick Smith, and it contains two primary allegations: 1) that Smith and the respondent “cut a deal” for Smith to identify Douglas and Powell as the gunmen in exchange for favorable treatment on Smith's own pending criminal charges, but neglected to disclose such a deal to the jury as required by law; and 2) that the respondent interjected himself into Smith's criminal cases in an attempt to secure favorable treatment for Smith as per their “secret” agreement.

¶ 13 The evidence regarding Smith's account of events is questionable at best. Smith is a career criminal who began his career as a juvenile with more than a dozen juvenile violations and visits to juvenile detention facilities, before being charged and/or convicted of the following offenses as an adult gang member: aggravated assault with a gun, shooting with intent to kill, trafficking cocaine, possession of cocaine, receiving stolen property, concealing stolen property, domestic violence, assault and battery, assessory to murder, and armed robbery.

¶ 14 Smith has, over nearly 20 years, given so many different versions of what happened the night of the shooting with varying details that it is clear that his testimony/story varies, depending on who is asking the questions and what he thinks he will get in exchange for his answers. We agree with the trial panel that he is not a credible witness. Consequently,any of the Bar's accusations which rely on Smith's version of events have not been proven by clear and convincing evidence and do not serve as the basis for discipline —including his testimony that he cut a “deal” with respondent in exchange for testimony without disclosing such a deal to the jury.

¶ 15 Nevertheless, the record is clear that,...