P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar

Cite as In re Tuttle, 19 DB Rptr 216 (2005)
The Ford case had originally been assigned to another deputy district attorney
and had been set for trial in January, 2003. The deputy assigned to the case became
ill, and the trial was reset for March 31, 2003. About two weeks before trial, the case
had been reassigned to the Accused.
Ferder and the Accused appeared for a bench trial in the Ford case in Judge
Hart’s courtroom on March 31, 2003. The Accused had no communications with
Ferder prior to the date of trial. In fact, Ferder was unaware that the case had been
reassigned to another deputy district attorney.
At no time prior to March 31, 2003, did the Accused, or anyone at her
direction, attempt to provide Ferder with the information pertaining to Payne that was
asserted by Ricks during the March 17, 2003, court proceedings. Ferder had not
otherwise received information beforehand from any source about those proceedings.
On March 31, 2003, as Ferder and the Accused entered the courtroom prior
to trial, Ferder inquired if Ricks would be called as a witness for the State. The
Accused realized at this point that she should advise Ferder of the exculpatory
statements made by Ricks on March 17, 2003, about the Ford case. The Accused did
not inform Ferder of the content of those statements at that time nor at any time
thereafter.
Ferder was unaware of any statements made by Ricks on March 17, 2003. As
a result, he did not take any action that he would have taken had he been aware of
the statements. He did not move for a continuance, did not withdraw the waiver of
a jury trial on behalf of his client, did not investigate further or interview any of the
other men allegedly accused of rape by Payne, did not call Ricks to testify to the
exculpatory statements she made, and did not cross-examine Payne as to the
recantation that she allegedly made to Ricks.
Ford was convicted of all counts, except for the Attempted Compelling
Prostitution charge. The trial court granted a judgment of acquittal as to that charge.
On April 29, 2003, Ford was sentenced. Ford received 180 months custody with the
Department of Corrections on the Rape conviction and 34 months concurrent time
for Delivery of a Controlled Substance to a Minor, the two charges naming Payne
as the victim.
On May 12, 2003, Ferder filed a Motion for a New Trial on behalf of Ford,
based upon information he received from Mary Elizabeth Brown, who is the mother
of Ricks, and Megan Albers. Both women had allegedly heard Payne make remarks
recanting her accusation that she had been raped by Ford. The Accused received the
Motion for a New Trial, and admitted contacting Judge Hart’s secretary about
whether a hearing was going to be set.
After the Motion for New Trial had been denied, Ferder learned from Ricks
that she had made statements in the courtroom of Judge Rhoades during proceedings
prosecuted by the Accused. On July 17, 2003, Ferder obtained a transcript of the
March 17, 2003 proceedings in Judge Rhoades’ courtroom. Based on the potential
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