February 2010

Topic:
An ethics rule requiring a prosecutor to make timely disclosure of an exculpatory or mitigating evidence imposes no greater duty for the prosecutor to produce information than the prosecutor is constitutionally required to disclose by Brady v. Maryland.

In Ohio, as a matter of policy, the lawyer ethics code, as it applies to a public prosecutor, does not require that a prosecutor reveal more than is required by the constitution. As a result, in that jurisdiction at least, a prosecutor has more freedom from regulatory scrutiny in determining what information should or should not be disclosed to a defendant.

Kimberly Jo Kellogg-Martin was admitted to practice in Ohio in 1984. While serving as the chief assistant prosecuting attorney of Logan County, she was assigned to bring criminal charges against Joshua Giles. These charges were based upon a young girl’s allegations that Giles had forced her to have sex on two separate occasions. In June 2002, the victim, then 14 years old, was in counseling for behavioral problems. During a counseling session, the girl told her therapist that Giles had twice pressured her into sexual intercourse. Her therapist reported the allegation to appropriate officials, as required by Ohio law. Later, Jo Ann Dorsey, a social worker, interviewed the victim. The day of the interview, Dorsey wrote a narrative report of her conversation with the victim. According to the Dorsey Report, the victim stated that the first rape had been committed at the home of a friend of the victim in August 2001, and that the second rape had been committed in September 2001. The victim’s date of birth was January 21, 1988. Thus, Dorsey’s initial account of the victim’s statements implied that the victim was 13 years old at the time she was raped. The age discrepancy was a significant factor, as a charge for rape of a person under 13 years of age carried a potential sentence of three to ten years and, if the rape of a person under 13 years of age was by force or threat, a life sentence was possible. Had the victim been 13 years of age, then the life sentence would not have been an available punishment and the longest sentence that the defendant would have faced would have been ten-year maximum sentences for the remaining first degree rape charges. The Dorsey Report was transmitted to a Sheriff's Detective. The Detective interviewed Giles, who admitted to having sex with the victim at her friend’s house. Giles revealed that the act happened a “very long” time ago, around the “[e]nd of 2000.” The Detective then interviewed the victim, who said that she was 12 at the time of the events. She also stated that she, "did not tell [Giles] to stop or try to fight him during the incidents of intercourse.” The discrepancy between the Dorsey Report that the victim was 13 and the other information that she was 12 prompted Kellogg-Martin to seek further confirmation of the victim’s age before filing criminal charges. Kellogg-Martin therefore interviewed the victim personally. During the interview, the victim stated that before one of the rapes, she had informed Giles that she was 12. The victim also told the prosecutor that she had been in a snowmobile accident and that the rapes had occurred the summer before that accident. After the interview, Kellogg-Martin checked the victim’s hospital records. These confirmed that the snowmobile accident had taken place in December 2000. The lawyer also interviewed the victim’s mother. From this interview, Kellogg-Martin learned that the victim had told her mother about being raped. The victim’s mother told the prosecutor that the victim had been 12 at the time of that conversation. Finally, the victim told her therapist in 2002 that she had been raped when she was 12.

Giles was ultimately indicted on four counts of raping a person under the age of 13 and two counts of raping a person under the age of 13 by force or threat of force. Each of these charges required the prosecution to prove that the victim was younger than 13 at the time of the alleged rapes. After Giles was indicted, his attorney filed a discovery demand requesting, “…all evidence, known or which may become known to the Prosecuting Attorney, favorable to defendant, and material either to the guilt or innocence of the defendant.” Kellogg-Martin did not provide defense counsel with copies of either the Dorsey Report regarding the age statement or the Detective's Report concerning consent. Kellogg-Martin later testified that she believed she did not have any duty to do so. In addition, the prosecutor filed a bill of particulars in the Giles prosecution. The bill contained the following statement:

The victim was interviewed by Joanie Dorsey of Logan County Children’s Services on June 12, 2002. She reported that the Defendant raped her on two occasions over the summer of 2000.

Soon thereafter, Giles entered a plea of guilty to a reduced charge of unlawful sexual conduct with a minor. At the plea hearing, the prosecutor delivered a statement of what “[t]he State’s evidence in this case would show.” During this statement, she said: “The victim was interviewed by Joanie Dorsey of the Logan County Children’s Services on June 12, 2002. She reported what had taken place over the year of 2000.”

Eventually the Ohio Disciplinary authority was alerted to the existence of the two reports, neither of which was ever tendered by Kellogg-Martin to the defendant. A disciplinary investigation ensued and formal charges were filed against the prosecutor. Specifically, she was alleged to have violated Ohio's DR 7-103(B) and 7-102(A)(3) by failing to disclose the two reports before Giles entered his guilty plea. Further, she was charged with engaging in conduct that was prejudicial to the administration of justice contrary to DR 1-102(A)(5). Finally, it was alleged that her statements in the bill of particulars and the plea hearing were false and therefore violated DR 1-102(A)(4). The Board of Commissioners on Grievances and Discipline agreed with Disciplinary Counsel that Kellogg-Martin had violated ethics guidelines and recommended that she be suspended for one year, with the last six months conditionally stayed. She appealed the decision and the Supreme Court of Ohio, one Justice dissenting, dismissed the disciplinary complaint against her.

In exonerating the prosecutor, the Court held that a prosecutor's ethical duties are not more onerous than her legal duties and declined to find that the ethics code has a broader sweep in Ohio. The Court acknowledged that, in Brady v. Maryland , the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request 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. Likewise, Ohio rules require that a prosecutor “disclose to counsel for the defendant all evidence, known or which may become known to the prosecuting attorney, favorable to the defendant and material either to guilt or punishment.” However, the Ohio Court noted that in United States v. Ruiz , 536 U.S. 622, 633 (2002), the United States Supreme Court held that “the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” Returning to the immediate facts, the Ohio Court believed that the two reports in question merely constituted impeachment evidence. The majority justices reasoned that, had the case against Giles gone to trial, the defense could not have introduced the victim’s out-of-court statements to Dorsey and the Detective to prove the truth of the matters asserted in those statements (i.e., that the rapes occurred in 2001 or that the victim did not offer resistance). Thus, the defense could have used the victim’s statements only to impeach the victim’s testimony at trial with respect to those matters. The Court opined that Ruiz plainly holds that the state is not required to disclose impeachment evidence to a defendant before a defendant pleads guilty. Because Giles entered a guilty plea and never went to trial, Kellogg-Martin had no obligation to disclose the two reports to him. Although criticized by the dissenting justice for adopting the following tact, the majority noted:

Our decision today should not be construed as an endorsement of respondent’s nondisclosure of the reports. “Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure.” United States v. Agurs (1976), 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342. Nevertheless, we conclude that nondisclosure of the reports at issue here did not violate any Disciplinary Rule.

As to the final issue, Kellogg-Martin’s candor to her opponent and to the trial court, the Supreme Court found that, although the reports were seemingly "inconsistent" with Kellogg-Martin's representations, her representations were not false. The Court reasoned that the prosecutor's statements were not representations about what Dorsey's Report said. Instead, the statements that Kellogg-Martin made were representations about what the victim said to Dorsey.

Dissenting Chief Justice Thomas J. Moyer, the longest serving chief justice in the United States, disagreed with the majority ruling, noting:

In responding to the defendant’s discovery request, respondent decided to withhold from the defendant the two reports containing the 2001 dates given by the victim. Later, in the bill of particulars, respondent described the two interviews of the victim but stated, without qualification, that the victim reported that she had been raped on two occasions in 2000. By implication, the bill of particulars asserted that the defense would not find any exculpatory material in the reports themselves. Respondent completed her gloss on the evidence at the defendant’s plea hearing. During that hearing, respondent stated to the court that the victim had been interviewed by a therapist and by a children’s services employee and that the victim reported that the crimes occurred in 2000. Thus, the defense did not have these reports to review and could not have noted the inconsistency between the dates in the reports and those inherent in the charges against him. Based on respondent’s statements reported in the bill of particulars and at the plea hearing, the defendant had no reason to know that the reports contained information relating to his guilt on the charges against him.

The case is Disciplinary Counsel v. Kellogg-Martin , ___ N.E.2d ___, 2010 WL 395191 (Ohio February 4, 2010).

JAMES J. GROGAN, DACC, Illinois ARDC