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Cite as In re Tuttle, 19 DB Rptr 216 (2005)
The concern is not whether Mr. Ford was guilty. The Accused testified that
she has done nothing to rectify the situation, and has provided an explanation of why
she has not:
“I have not been approached in any way regarding this information. Nobody
has requested that we have a new trial. Nobody has requested that we reopen
the case. And I believe that’s in large part due to the fact that I still don’t
believe that this information is likely to have been presented, but remember
that, as a prosecutor I’m in a difficult position. . . . And so I guess the short
answer is, no. But the longer answer is I’m not sure what I could really do
without having been approached in any way about this.”
3/31/05 Hrg. Tr. 212-13.
Her testimony implies that it was not her responsibility to insure that the error
was corrected. However, the prosecutor has a duty to function as a “minister of
justice”; insuring that all defendants, whether guilty or innocent, receive any and all
information, regardless of it’s significance, that may support a claim of innocence,
mitigate the offense, or reduce the punishment in order to insure a full, fair, and
impartial resolution of the case. Waiting for someone else to rectify her error, when
that error has the potential to affect years of a person’s life, conflicts with that duty.
See ABA Model Rules for Lawyer Disciplinary Enforcement, Commentary to Rule
10 (quoting from Standards, 9 of Standards, for imposing Lawyer Sanctions,
“Aggravating factors include: . . . indifference to making restitution. Mitigating
factors include: . . . timely good faith effort to make restitution or to rectify
consequences of misconduct.”).
The Accused appropriately consulted with her supervisors. Unfortunately, they,
too, did not see a need to rectify the error. Had Mr. Ford not complained to the Bar,
Ricks’ exculpatory information relevant to Ford’s case would have remained buried.
The justice system demands that exculpatory evidence received both before and after
trial be communicated to the defense so that a fair and just resolution is achieved.
That was not done in this case.
The following aggravating factors apply:
(1) The Accused has substantial experience in the practice of law as a
public prosecutor.
(2) The Accused allowed her personal opinion of Ricks’ credibility
determine whether she would provide the exculpatory statements to Ford’s lawyer.
(3) The Accused has failed to take steps to rectify her error. The
information could have been disclosed and the matter corrected through a hearing on
the Motion for New Trial. The fact that Ferder’s motion had already been denied at
the time the Accused had contacted the court about its status does not justify not
advising Ford’s lawyer of the exculpatory evidence. As a result, Ford was prevented
from requesting reconsideration.
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