Unlike other litigating lawyers, prosecutors are not merely advocates; they are also administrators of justice who have a duty to “seek justice, [and] not merely to convict.” See ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–1.2 (3d ed. 1992).1 As a result, the rules of professional conduct impose obligations on prosecutors that do not apply to other lawyers. See Louisiana Rules of Professional Conduct, r. 3.8; see also Model Rules of Professional Conduct, r. 3.8. Yet, disciplinary actions against prosecutors for violating these standards are rare. See generally Kathleen “Cookie” Ridolfi, Tiffany M. Joslyn & Todd H. Fres, Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases (N.A.C.D.L. 2014).
For that reason, a recent disciplinary recommendation from the District of Columbia Board of Professional Responsibility is notable. The board proposed a six-month suspension for two prosecutors who failed to comply with their obligation to disclose exculpatory evidence. See In re Matters of Mary Chris Boddie and Reagan Taylor, No. 19-BD-018 (Jan. 13, 2021).
Respondents were prosecuting several inmates at the District of Columbia Jail for assault stemming from a fight in the jail. One important witness about the identity of the inmates was D.C. Jail correctional officer Lieutenant Angelo Childs. Roughly six weeks before trial, Respondents received a report that described several kinds of misconduct by Childs. The report was written by a Department of Corrections (DOC) Office of Internal Affairs (OIA) Investigator named Benjamin Collins. The Collins Report determined that Childs maced an inmate in the face who was handcuffed, then filed a false incident report about it and filed a false disciplinary charge against the inmate alleging the inmate assaulted an officer. All of this information should have been disclosed to the defense under Brady v. Maryland, 373 U.S. 83 (1963). In a long line of cases under Giglio v. United States, 405 U.S. 150 (1972), courts have held that a prosecutor has a duty to disclose information and evidence that could be used to impeach the credibility of a government witness, commonly called Giglio information.
While the prosecutors filed the “Collins Report” along with a motion in limine under seal with the court, they failed to include all of the exculpatory information related to Childs. More particularly, they did not disclose the determination that Childs filed a “false disciplinary charge against the inmate alleging that he assaulted an officer” and they “dramatically misconstrued the adverse finding about Childs’ credibility that was made in the report.” Said the board:
The Collins Report’s conclusion that Childs filed a false disciplinary charge was Giglio information and needed to be disclosed. While Respondents did not include it because it was not in the findings section of the Collins Report, a reasonable prosecutor would know that the false disciplinary charge was Giglio information. And Respondents intentionally made a disclosure, through the motion in limine, that did not include that Giglio information. For the reasons set out below, we also find that Respondents violated Rule 8.4(c), by engaging in conduct involving dishonesty, and violated Rule 8.4(d) because their conduct seriously interfered with the administration of justice. We recommend a suspension of six months.
The District of Columbia Court of Appeals has the ultimate authority to discipline members of the District of Columbia Bar for misconduct. As a result, the proposed six-month suspension remails subject to review by the District of Columbia Court of Appeals.
- For other standards addressing the special responsibilities of prosecutors, see ABA Standards on Prosecutorial Investigations (2008); National Dist. Attorneys’ Assoc. Prosec. Stds. (2d ed. 1991). ↵