3.09. Reading: Disciplinary Counsel v. Brockler, 48 N.E. 3d 557 (Ohio 2016)

Reading Guide
This case takes a view of prosecutor misconduct from a different perspective than the Rhielman case. What if the prosecutor is engaging in subterfuge to keep a murderer off the street? Should that conduct be viewed differently?

Issues:
– What Rules were Brockler accused of violating?
– What conduct was the basis of the claim of misconduct?
– What was Brockler’s argument that he did not act unethically?
– How is ABA Rule 8.4(c) and its comments different from the Ohio Rule?
– What sanction did the majority impose on Brockler?
– What was the concern of the dissent? Do you agree with the majority or the dissent?

Disciplinary Counsel v. Brockler

48 N.E. 3d 557 (Ohio 2016)

Opinion

PER CURIAM.

Respondent, Aaron James Brockler of Lakewood, Ohio, Attorney Registration No. 0078205, was admitted to the practice of law in Ohio in 2004. In an April 7, 2014 complaint, relator, disciplinary counsel, charged Brockler with engaging in professional misconduct while he served as the assistant Cuyahoga County prosecutor assigned to a murder case. Specifically, relator alleged that while investigating the shooting death of Kenneth “Blue” Adams, Brockler created a fictitious Facebook account and used it to contact the alibi witnesses of Damon Dunn, who had been indicted for the murder. …

Misconduct

Before he was indicted, Dunn denied any involvement in Adams’s death and told Cleveland police that at the time of the murder, he was with his girlfriend, Sarah Mossor, and her friend Marquita Lewis. Brockler did not believe that Dunn’s alibi was true, but Mossor and Lewis refused to talk with him on numerous occasions when he identified himself as the assistant prosecutor assigned to the case.

As part of his investigation, Brockler listened to recordings of telephone calls that Dunn had made from the Cuyahoga County Jail. On the morning of December 14, 2012, he listened to a recording of a heated conversation in which Dunn and Mossor argued over Dunn’s fear that Mossor would not be a reliable witness and Mossor’s belief that Dunn had not been faithful to her. Mossor suspected that Dunn had had a romantic relationship with a woman named “Taisha” and indicated that if her suspicion was true, she would end her relationship with Dunn. Believing that Mossor’s relationship with Dunn was near a breaking point, Brockler saw an opportunity to exploit her feelings of distrust and get her to recant her support for Dunn.

Recalling a Facebook ruse he had used in a prior case, Brockler planned to create a fictitious Facebook identity to contact Mossor. He attempted to obtain assistance from several Cleveland police detectives and the chief investigator in the prosecutor’s office, but they were not available. Believing that time was of the essence, Brockler decided to proceed with the Facebook ruse on his own approximately one hour after he heard the recording of Mossor and Dunn’s conversation. He created a Facebook account using the pseudonym “Taisha Little,” a photograph of an African–American female that he downloaded from the Internet, and information that he gleaned from Dunn’s jailhouse telephone calls. He also added pictures, group affiliations, and “friends” he selected based on Dunn’s telephone calls and Facebook page.

Posing as Little, Brockler simultaneously contacted Mossor and Lewis in separate Facebook chats. He falsely represented that Little had been involved with Dunn, that she had an 18–month–old child with him, and that she needed him to be released from jail so that he could provide child support. He also discussed Dunn’s alibi as though it were false in an attempt to get Mossor and Lewis to admit that they were lying for Dunn (or would lie for him in the future) and to convince them to speak with the prosecutor.

After chatting for several hours, Brockler sensed that Mossor and Lewis were suspicious, so he shut down the chat and deleted the fictitious account. He testified that he printed copies of the chats and placed them in a file—with the intent to provide copies to defense counsel—before he deleted the account, but those copies were never found. He attended five pretrial conferences from January through April 2013 but did not disclose the circumstances or content of his conversations with Mossor or Lewis.

Brockler was scheduled to take an extended medical leave beginning April 16, 2013, and assistant prosecutor Kevin Filiatraut was assigned to handle the Dunn case in his absence. Brockler gave his file to Filiatraut, reviewed the case with him, and attended a pretrial conference with him. Brockler also disclosed that he might need to be a witness at trial because both Mossor and Lewis had told him they would not support Dunn’s alibi, although they were afraid to say so in court. Brockler did not disclose how he obtained that information.

On the second day of Brockler’s leave and less than one week before Dunn’s trial, a police detective gave Filiatraut several documents, including a transcript of Lewis’s chat with “Taisha Little” (obtained from Lewis) and Lewis’s written statement about the chat. Filiatraut immediately made the documents available to defense counsel and began to investigate Little.

Although Filiatraut quickly informed Brockler about this new information, Brockler waited nearly three weeks to disclose that he was “Taisha Little.” Upon learning of Brockler’s ruse, Filiatraut reported this information to his superiors. The prosecutor’s office withdrew from the case and the court appointed the attorney general to serve as a special prosecutor. Shortly after Brockler returned from his medical leave in June 2013, his employment was terminated.

***

Approximately one year after Brockler’s termination, Dunn was convicted of aggravated murder, murder, felonious assault, and having weapons while under disability. The parties stipulated in January 2015 that his conviction was on appeal, but it has since been affirmed…

Brockler admitted that the Facebook ruse violated the plain language of Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), but he urged the board to carve out an exception for “prosecutorial investigation deception.”

Noting that a comment to Prof.Cond.R. 8.4 already recognizes an exception for lawyers who supervise or advise nonlawyers about lawful covert investigative activities …, [and] the board refused to carve out a broader exception to the rule. See Prof.Cond.R. 8.4, Comment 2A. . . .[1]

Instead, the board found that Prof.Cond.R. 8.4(c) requires an assistant prosecutor to refrain from dishonesty, fraud, deceit, or misrepresentation when personally engaging in investigatory activity and that Brockler’s Facebook ruse therefore violated the rule.

Brockler argued that his conduct did not violate Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice) as charged in the complaint because it encouraged witnesses to come forward and tell the truth. But the board found that his subterfuge prejudiced the administration of justice because it had the potential to induce false testimony, injected significant new issues into the case shortly before trial, and materially delayed the resolution of the case by requiring further investigation and the appointment of a special prosecutor. ….

Sanction

… Aaron James Brockler is suspended from the practice of law in Ohio for one year, fully stayed on the conditions that he engage in no further misconduct and pay the costs of this proceeding. If he fails to comply with the conditions of the stay, the stay will be lifted, and he shall serve the full one-year suspension.

O’CONNOR, C.J., dissenting.

The preamble to the Ohio Rules of Professional Conduct, entitled “A Lawyer’s Responsibilities,” lays out broad obligations, recognizing that “a lawyer not only represents clients but has a special responsibility for the quality of justice” and that that responsibility extends “to practicing lawyers even when they are acting in a nonprofessional capacity.” Prof.Cond.R., Preamble [1], [3]. By imposing a marginal sanction—a fully stayed one-year suspension—on respondent, Aaron Brockler, the majority minimizes his significant ethical violations and does so based upon a myopic view of the Rules of Professional Conduct. The men and women who serve as prosecutors in this state are authorized to enforce the law and administer justice, one of the noblest pursuits an attorney can enjoy. Accordingly, they must meet or exceed the highest ethical standards imposed on our profession. Given the significant ethical violations Brockler committed, I cannot implicitly condone the imposition of a negligible sanction for his egregious misconduct.

The substantial evidence of wrongdoing and the aggravating factors in this case prove that Brockler committed significant violations of the Rules of Professional Conduct. Yet faced with Brockler’s glaring disdain for the ethical responsibilities this court imposes on all attorneys in this state, a majority of this court imposes only a one-year suspension, fully stayed.

In the past, our punishment for lawyers’ conduct involving dishonesty, fraud, deceit, or misrepresentation has been significantly harsher. We indefinitely suspended an attorney who had lied to the disciplinary counsel’s investigator. … We imposed a one-year suspension, with six months stayed on conditions, on an attorney who had falsely advised that her client’s case was being settled. … We suspended a lawyer for six months for attempting to advance his client’s interests with evidence that the lawyer knowingly fabricated. …

The disciplined attorneys in those cases were ordered to serve actual suspensions, and none of them was a prosecutor. Instead, those cases all involved civil matters, in which the worst outcome risked by the lawyer’s deception was the loss of money by a party.

In contrast, the stakes in this case involved imprisonment for up to a life term. Brockler actively hindered the pursuit of justice in a criminal proceeding on multiple occasions, by lying to alibi witnesses in an effort to make them change their statements. He made every effort to hide his deceptive activities until they were uncovered, and then he refused to admit that his actions were wrong.

Failing to require Brockler to serve even a single day of his suspension does little to establish that this court will ensure the integrity of prosecutors and the ethical administration of justice. Indeed, none of the cases upon which the majority opinion relies to support a fully stayed suspension involves a lawyer lying in a criminal case to the detriment of a criminal defendant and, ultimately, to the detriment of the public’s faith in our courts and in justice.

The stakes in this case are significantly higher than those in the cases cited in the majority opinion. The courts are the bulwark of justice, and we must prove that government is trustworthy and working tirelessly but fairly, ethically, and honestly in support of justice. To do that, we must require the offices of Ohio’s prosecuting attorneys to strive for flawless obedience to the ethical rules governing all lawyers practicing in the state. …

I am cognizant of Brockler’s desire to serve the public and to do what is “right” by protecting society from dangerous criminal defendants, just as I am aware of the intensely difficult nature of such work, which often involves tragic circumstances, elicits visceral reactions, and presents great risks for both the accuser and the accused. … Although criminal cases “bring the responsibility and necessity” of zealous representation, a prosecuting attorney “is not endowed with a concomitant right to denigrate the court in discharging that responsibility.” [Disciplinary Counsel v. LoDico, 833 N.E. 2d 1235, 1241 (Ohio 2005).]

In light of the series of lies and misrepresentations here and the impact they have on the profession and our communities, I would indefinitely suspend Brockler’s license to practice law in this state.

CONCLUSION

Because I believe that the court’s sanction in this case is entirely incongruous with Brockler’s behavior, I cannot subscribe to it. For his ethical misdeeds, I would indefinitely suspend Brockler’s license to practice law in the state of Ohio. Accordingly, I dissent.

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[1] [ed. – Ohio Rule of Professional Conduct Rule 8.4, Comment 2A provides:  Rule 8.4(c) “does not prohibit a lawyer from supervising or advising about lawful covert activity in the investigation of criminal activity or violations of constitutional or civil rights when authorized by law.”]