[Cite as Disciplinary Counsel v. Kellogg-Martin, 124 Ohio St.3d 415, 2010-Ohio-282.]




                   DISCIPLINARY COUNSEL v. KELLOGG-MARTIN.
                  [Cite as Disciplinary Counsel v. Kellogg-Martin,
                         124 Ohio St.3d 415, 2010-Ohio-282.]
Criminal procedure — Attorneys at law — Discovery — Prosecutor’s ethical and
        legal duty to disclose exculpatory information — No violations found —
        Disciplinary complaint dismissed.
(No. 2008-1771 — Submitted December 16, 2008 — Decided February 4, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 07-069.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Kimberly J. Kellogg-Martin of Bellefontaine, Ohio,
Attorney Registration No. 0022083, was admitted to the practice of law in Ohio in
1984. The Board of Commissioners on Grievances and Discipline found that
respondent had violated the Disciplinary Rules of the former Code of Professional
Responsibility by failing to disclose, and by making false statements about,
potentially exculpatory or mitigating evidence during a criminal prosecution. The
board recommends that we suspend respondent from practice for one year, but
conditionally stay the last six months of the suspension. Respondent objects to
the board’s findings and recommendation.                Because we find that several
objections have merit and that respondent’s acts and omissions did not constitute
professional misconduct, we dismiss the complaint.
                The Disciplinary Proceedings against Respondent
        {¶ 2} Relator, the Disciplinary Counsel, charged respondent in a single-
count complaint with violating DR 1-102(A)(4) (prohibiting a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-
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102(A)(5) (prohibiting a lawyer from engaging in conduct prejudicial to the
administration of justice), 7-102(A)(3) (prohibiting a lawyer, in the representation
of a client, from concealing or knowingly failing to disclose that which she is
required by law to reveal), and 7-103(B) (requiring a prosecutor to make timely
disclosure to defense counsel of the existence of evidence known to the
prosecutor that tends to negate the guilt of the accused, mitigates the degree of the
offense, or reduces the punishment).       A panel of the board heard the case,
including the parties’ stipulations, and found the disciplinary violations alleged in
the complaint. The panel recommended a six-month suspension with the entire
six months to be stayed. The board adopted the panel’s findings of fact and
conclusions of law, but recommended a one-year suspension with six months
stayed.
          {¶ 3} The following facts were established at the disciplinary hearing:
          {¶ 4} Respondent was the chief assistant prosecuting attorney of Logan
County. In 2002, she was assigned to prosecute 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.
          {¶ 5} In June 2002, the victim, then 14 years old, was in counseling for
behavioral problems. During a counseling session, she told her therapist that
Giles had twice pressured her into sexual intercourse. Her therapist reported the
allegation, as is required by statute.
          {¶ 6} On June 12, 2002, Jo Ann Dorsey, a Logan County Children
Services (“LCCS”) social worker, interviewed the victim. Later that day, Dorsey
wrote a narrative report of the interview (“the Dorsey report”). According to the
Dorsey report, with respect to the crucial fact of the victim’s age, 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 at the residence of one
“Haddy” in September 2001. The victim’s date of birth was January 21, 1988.




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                               January Term, 2010




Thus, Dorsey’s initial account of the victim’s statements implied that the victim
was 13 years old at the time she was raped. On July 19, 2002, however, Dorsey
filled out a form called the “Family Risk Assessment Matrix.” On this form,
Dorsey stated that the victim “reported she was raped by a 21 year old man when
she was 12 years old.”
       {¶ 7} On June 13, 2002, Dorsey faxed a copy of her report to Detective
Sergeant Jeff Cooper in the Logan County Sheriff’s Office. Cooper interviewed
Giles the same day, and Giles admitted to having sex with the victim at her
friend’s house. Giles said this had happened a “very long” time ago, around the
“[e]nd of 2000.”
       {¶ 8} Cooper and another officer interviewed the victim on July 3, 2002.
According to Cooper’s narrative report (“the Cooper report”), the victim told the
officers that “she had intercourse with [Giles] on two occasions * * * when she
was twelve years old.” The Cooper report also states that the victim “stated that
she did not tell [Giles] to stop or try to fight him during the incidents of
intercourse.”
       {¶ 9} The discrepancy between Dorsey’s June 12 report that the victim
was 13 and the other information that she was 12 prompted respondent to seek
further confirmation of the victim’s age before filing criminal charges.
Respondent 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 respondent that she had been in a snowmobile accident
and that the rapes had occurred the summer before that accident. After the
interview, respondent checked the victim’s hospital records. These confirmed
that the snowmobile accident had taken place in December 2000.
       {¶ 10} Respondent also interviewed the victim’s mother.          From this
interview, respondent learned that the victim had told her mother about being




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raped. The victim’s mother told respondent that the victim had been 12 at the
time of that conversation.
       {¶ 11} On August 28, 2002, the victim told her therapist that one of the
sexual acts had occurred on a Labor Day weekend “when she was 12.”
       {¶ 12} Giles was ultimately indicted on four counts of raping a person
under the age of 13, R.C. 2907.02(A)(1)(b), and two counts of raping a person
under the age of 13 by force or threat of force, R.C. 2907.02(A)(1)(b) and
2907.02(A)(2). Each of these charges required the prosecution to prove that the
victim was younger than 13 at the time of the alleged rapes.
       {¶ 13} After Giles was indicted, his attorney filed a discovery demand
requesting, inter alia, “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.” Respondent did not provide defense counsel with
copies of either the Dorsey report regarding the age statement or the Cooper
report concerning consent. Respondent later testified that she believed she did not
have a duty under Crim.R. 16 or Brady v. Maryland (1963), 373 U.S. 83, 87, 83
S.Ct. 1194, 10 L.Ed.2d 215, to turn these reports over to the defense.
       {¶ 14} On September 23, 2002, respondent 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.”
       {¶ 15} On December 18, 2002, Giles entered a plea of guilty to a reduced
charge of unlawful sexual conduct with a minor, R.C. 2907.04(A).            At the
hearing, respondent delivered a statement of what “[t]he State’s evidence in this
case would show.” During this statement, respondent 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.”




                                         4
                               January Term, 2010




       {¶ 16} The board found that respondent violated DR 7-103(B) and 7-
102(A)(3) by failing to disclose the Dorsey and Cooper reports to the defense
before Giles entered his guilty plea. The board further found that respondent’s
nondisclosure of the reports was prejudicial to the administration of justice and
thus violated DR 1-102(A)(5).       Finally, the board found that respondent’s
statements in the bill of particulars and the plea hearing were false and therefore
violated DR 1-102(A)(4).
                Respondent’s Objections to the Board’s Report
       {¶ 17} Respondent has filed seven objections to the board’s report and
recommendations. Her first five objections challenge the board’s findings that
she violated DR 7-103(B), 7-102(A)(3), and 1-102(A)(5) by failing to disclose the
Dorsey and Cooper reports. Her sixth challenges the board’s finding that she
made false statements to the trial court in violation of DR 1-102(A)(4). Her
seventh challenges the sanction recommended by the board.           We begin our
analysis with the issues raised by respondent’s nondisclosure of the reports.
                Nondisclosure of the Dorsey and Cooper Reports
       {¶ 18} DR 7-103(B) provides: “A public prosecutor or other government
lawyer in criminal litigation shall make timely disclosure to counsel for the
defendant, or to the defendant if he has no counsel, of the existence of evidence,
known to the prosecutor or other government lawyer, that tends to negate the guilt
of the accused, mitigate the degree of the offense, or reduce the punishment.”
       {¶ 19} Respondent’s first two objections are related.          In her first
objection, she argues: “It cannot be the intent of the Code of Professional
Responsibility * * * that a prosecutor’s ethical duties are broader than her legal
duties.” Therefore, she contends, a prosecutor cannot violate DR 7-103(B) by
failing to disclose evidence unless her failure to disclose also constitutes a
violation of Crim.R. 16 or of Brady v. Maryland, supra. In her second objection,
respondent contends that she had no legal duty to disclose the Dorsey and Cooper



                                         5
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reports to the defense and hence that she committed no violation of DR 7-103(B)
by failing to disclose them.
       {¶ 20} Relator, on the other hand, contends that we should read DR 7-
103(B) broadly, to require disclosure of evidence irrespective of whether its
disclosure is legally required or not. Relator further contends that even if we
reject relator’s interpretation of DR 7-103(B), respondent’s failure to disclose the
reports did in fact violate Brady and Crim.R. 16 and therefore still constituted a
violation of DR 7-103(B).
       {¶ 21} We decline to construe DR 7-103(B) as requiring a greater scope
of disclosure than Brady and Crim.R. 16 require. Relator’s broad interpretation of
DR 7-103(B) would threaten prosecutors with professional discipline for failing to
disclose evidence even when the applicable law does not require disclosure. This
would in effect expand the scope of discovery currently required of prosecutors in
criminal cases.
       {¶ 22} For this reason, we hold that DR 7-103(B) imposes no requirement
on a prosecutor to disclose information that he or she is not required to disclose
by applicable law, such as Brady v. Maryland or Crim.R. 16. Accordingly, we
sustain respondent’s first objection.
       {¶ 23} In respondent’s second objection, she contends that she had no
duty to disclose the Dorsey and Cooper reports to the defense. Therefore, she
contends, her failure to do so did not violate DR 7-103(B). In the circumstances
of this case, we agree with respondent’s contention that she had no duty to
disclose the reports.
       {¶ 24} 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 when 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, 83 S.Ct. 1194, 10 L.Ed.2d 215.         Likewise, Crim.R. 16(B)(1)(f)




                                         6
                               January Term, 2010




requires 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.”
       {¶ 25} However, in United States v. Ruiz (2002), 536 U.S. 622, 633, 122
S.Ct. 2450, 153 L.Ed.2d 586, 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.”
       {¶ 26} The Dorsey and Cooper reports constituted impeachment evidence.
Had the case against Giles gone to trial, the defense could not have introduced the
victim’s out-of-court statements to Dorsey and Cooper 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). See generally Evid.R. 801(C) and 802. Thus,
the defense could have used the victim’s statements only to impeach her
testimony at trial with respect to these matters.        See generally Evid.R. 613
(impeachment by self-contradiction).
       {¶ 27} Relator’s efforts to distinguish Ruiz are unpersuasive.       Relator
argues that “the focus in this case is not on the validity of Giles’ plea agreement,
the focus is on evidence withheld by respondent before Giles decided to plead
guilty.” (Emphasis sic.) Relator’s observation is true, but irrelevant. This case is
indeed about the “evidence withheld by respondent.” But the question before us
is whether respondent had any obligation to disclose that evidence before Giles
entered his guilty plea. Ruiz answers that question in the negative.
       {¶ 28} Next, relator points out that Giles, unlike the defendant in Ruiz,
“was not asked to sign any type of waiver of his right to receive ‘impeachment
information relating to any informants or other witnesses’ in exchange for
favorable sentencing.”    It is true that the defendant in Ruiz was asked to
specifically waive the right to receive impeachment information. That is, he was
offered a plea bargain whose terms included a specific waiver of the right to



                                         7
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receive impeachment information.         But relator omits one critical fact: the
defendant in Ruiz refused that bargain and later pleaded guilty without making
any such specific waiver. 536 U.S. at 625-626, 122 S.Ct. 2450, 153 L.Ed.2d 586.
The only waiver the defendant actually made in Ruiz was the same waiver that
any criminal defendant – including Giles – necessarily makes by pleading guilty:
“When a defendant pleads guilty he or she, of course, forgoes not only a fair trial,
but also other accompanying constitutional guarantees.” Ruiz, 536 U.S. at 628-
629.
       {¶ 29} Ruiz plainly holds that the state is not required to disclose
impeachment evidence to a defendant before the defendant pleads guilty.
Because Giles entered a guilty plea and never went to trial, respondent had no
obligation to disclose the Dorsey and Cooper reports to him. We must therefore
sustain respondent’s second objection.
       {¶ 30} As we find that respondent did not violate DR 7-103(B), we need
not determine whether, as she contends in her third objection, a finding of
willfulness is a prerequisite to a finding of a DR 7-103(B) violation.
Respondent’s third objection is moot.
       {¶ 31} Respondent’s fourth objection challenges the board’s finding that
nondisclosure of the reports violated DR 7-102(A)(3). DR 7-102(A)(3) prohibits
a lawyer’s failure to disclose information that she is required by law to reveal.
Under Ruiz, respondent had no obligation to disclose the Dorsey and Cooper
reports to the defense. Accordingly, we sustain respondent’s fourth objection.
       {¶ 32} Respondent’s fifth objection challenges the board’s finding that
respondent engaged in conduct prejudicial to the administration of justice in
violation of DR 1-102(A)(5).       In finding that respondent violated DR 1-
102(A)(5), the board relied on the same evidence and analysis that underlay its
findings that respondent violated DR 7-103(B) and 7-102(A)(3). Having rejected




                                          8
                                January Term, 2010




those findings, we must also reject the finding that respondent violated DR 1-
102(A)(5). We therefore sustain respondent’s fifth objection.
       {¶ 33} 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.
                The Claim that Respondent Made False Statements
       {¶ 34} In her sixth objection, respondent challenges the board’s
conclusion that she violated DR 1-102(A)(4). The board’s conclusion was based
on two statements respondent made in connection with the prosecution of Giles.
First, the bill of particulars filed by respondent on September 23, 2002 states:
“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.” (Emphasis added.)
       {¶ 35} Second, at the plea hearing on December 18, 2002, respondent
stated in open court: “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.”
       {¶ 36} Relator contends that both statements were false, in that they
misrepresented what the victim actually reported to Dorsey on June 12, 2002.
Relator further contends that the alleged falsehoods must have been intentional,
inasmuch as respondent was in possession of Dorsey’s June 12, 2002 report
stating that the victim had placed the sex acts in 2001.




                                          9
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        {¶ 37} We find that relator has failed to prove that respondent’s
statements in the bill of particulars and at the sentencing hearing were false. It is
true that Dorsey’s narrative report of June 12, 2002, is inconsistent with
respondent’s statements. The Dorsey report states that the victim, when asked
whether she had been raped “last year,” i.e., in 2001, said yes and that the victim
“reports the first rape occurred in August 2001.” But respondent’s statements
were not representations about what Dorsey’s report said.               They were
representations about what the victim said to Dorsey on June 12, 2002. And the
June 12 Dorsey report is not the only version of what the victim told Dorsey on
that date.
        {¶ 38} On June 19, 2002, Dorsey completed a “Family Risk Assessment
Matrix” form for the victim. Dorsey wrote on this form that the victim “reported
she was raped by a 21 year old man when she was 12 years old.” (Emphasis
added.) In the absence of any evidence that Dorsey interviewed the victim at any
time other than June 12, 2002, we must conclude that the statement on the June 19
risk-assessment form refers to the victim’s statements to Dorsey on June 12.
        {¶ 39} Thus, if Dorsey’s statement on the June 19 risk-assessment form is
correct, then so were respondent’s statements about what the victim reported to
Dorsey on June 12, 2002. Relator, who has the burden of persuasion, cites no
evidence that supports Dorsey’s June 12 version of the victim’s statement as
opposed to her June 19 version. Nor does the board’s report cite any such
evidence.
        {¶ 40} Indeed, the evidence points the other way. The victim told her
mother, her therapist, and Sergeant Cooper that she was 12 at the time of the
alleged rapes. Respondent determined that further investigation was needed, so
she interviewed the victim herself. Yet again, the victim’s account indicated that
she was 12 when Giles raped her.




                                         10
                                January Term, 2010




       {¶ 41} Given that all the victim’s other statements were consistent as to
when she was raped, we find it more likely than not that the June 19 risk-
assessment form, and not the earlier Dorsey report, accurately reflected what the
victim told Dorsey on June 12, 2002.
       {¶ 42} In sum, we find that respondent did not, either in the September
23, 2002 bill of particulars or during the December 18, 2002 plea hearing, engage
in conduct involving dishonesty, fraud, deceit, or misrepresentation. We therefore
conclude that respondent did not violate DR 1-102(A)(4), and we accordingly
sustain respondent’s sixth objection.
                              The Proposed Sanction
       {¶ 43} Respondent’s seventh objection is to the sanction recommended by
the board. However, as relator has failed to prove any misconduct, this objection
is moot.
                                    Conclusion
       {¶ 44} We find that relator has failed to establish that respondent violated
the Disciplinary Rules she was charged with violating. Accordingly, we dismiss
relator’s complaint.
                                                           Judgment accordingly.
       PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
       MOYER, C.J., dissents.
                                __________________
       MOYER, C.J., dissenting.
       {¶ 45} I respectfully dissent from the majority opinion. I disagree with
the proposition that DR 7-103(B) is, or should be, limited by Crim.R. 16(B)(1)(f)
and the corresponding constitutional analysis. The majority opinion disregards
the plain language and purposes of the former Code of Professional
Responsibility and the Rules of Criminal Procedure. Additionally, I disagree with



                                        11
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the majority’s inclination to reweigh the evidence in order to reject the board’s
finding of violations of DR 1-102(A)(4).          I would adopt the sanction
recommended by the board of a 12-month suspension with six months stayed.
                                The misconduct
       {¶ 46} Respondent prosecuted a rape case in which the severity of the
offenses was based upon the age of the victim. In evaluating the case for trial,
respondent determined that overwhelming evidence supported her view that the
crimes occurred in 2000, when the victim was 12 years old. However, respondent
possessed two reports—one generated by the county’s children’s services agency
and one by the sheriff’s office—both of which indicated that the victim had
reported that the crimes occurred in 2001.     Respondent, in her professional
judgment and based upon her research, viewed the dates in these reports as
inaccurate and therefore unreliable and concluded that the crimes had actually
occurred in 2000, when the victim was 12 years old. Therefore, respondent
elected to pursue charges for rape of a person under 13 years of age against the
defendant.
       {¶ 47} The defendant was charged with four counts of rape of a person
under the age of 13 in violation of R.C. 2907.02(A)(1)(b) and two counts of rape
of a person under the age of 13 by use of force or threat in violation of R.C.
2907.02(A)(1)(b) and (A)(2). All of the offenses were first-degree felonies. The
R.C. 2907.02(A)(1)(b) charges for rape of a person under 13 years of age carried
potential sentences of three to ten years (under former R.C. 2929.14(A)(1)). The
R.C. 2907.02(A)(1)(b) and (A)(2) charges for rape of a person under 13 years of
age by force or threat carried life sentences (under former R.C. 2907.02(B)). 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 sentences for the remaining first-degree rape
charges.




                                       12
                                 January Term, 2010




       {¶ 48} Thus, the age of the victim was relevant to the potential length of
incarceration, with a maximum life sentence available if the victim was under 13
years of age. Moreover, the timeline of events was important to the state’s case
because in order to prove the crimes charged, the state needed to show that the
offenses occurred in 2000, when the victim was 12 years old.
       {¶ 49} 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.
       {¶ 50} 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.
       {¶ 51} 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 effect of the majority decision
       {¶ 52} Respondent was faced with inconsistent evidence, evidence that
the defense could have used at the least to challenge the credibility of the victim
and at the most to undermine the assertion regarding the victim’s age in the




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charges against the defendant.1 Yet she was obliged to respond to the defendant’s
discovery requests.
         {¶ 53} In doing so, respondent chose to withhold the reports and not
reveal the inconsistencies contained within them. Respondent did not provide the
reports during discovery and misstated the contents of those reports in the bill of
particulars and to the court during the plea hearing.
         {¶ 54} Respondent admits that she knew of the inconsistencies in the
reported statements of the victim with the timeline asserted by the state but claims
that (1) the reports need not have been provided to the defense under the Code of
Professional Responsibility because they were not subject to disclosure under
Crim.R. 16(B)(1)(f) and Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215, and (2) the statements in the bill of particulars and the statements
made during the plea hearing did not constitute breaches of respondent’s
professional responsibilities, because she made the statements in good faith and in
her professional judgment on the belief that the facts and evidence supported
them.
         {¶ 55} The effect of the majority opinion is to adopt respondent’s position
on the obligations of a prosecutor. Thus, the prosecutor does not violate the Code
of Professional Responsibility unless she has violated the defendant’s fair-trial
discovery rights under the Due Process Clause of the United States Constitution
and the attendant Rules of Criminal Procedure.                     And the prosecutor may
misrepresent the contents of relevant written reports to the defense and the court,
so long as the misrepresentation does not rise to the level of a deprivation of


1. The majority asserts that the statements were hearsay and could therefore be used by the
defendant only to challenge the credibility of the declarant. However, that is not an issue before
us. Further, the defense was not given the opportunity to explore the veracity of the statements
and was denied the ability to pursue avenues of defense preparation that could have resulted. And
the defense was not aware of the potential weaknesses in the state’s case. Thus, it is not
completely accurate to say that the only use for the reports of the victim’s inconsistent statements
would have been as impeachment evidence.




                                                14
                                January Term, 2010




constitutional rights and she misrepresents them in a way that is consistent with
her good-faith view of the evidence.
       {¶ 56} The majority goes one step further and holds that so long as the
case ends with a plea, DR 7-103(B) cannot be violated at all.
       {¶ 57} The board did not, and I too cannot, agree that the rules of
professional conduct permit such an outcome.
             DR 7-103(B) requires more of the prosecutor than the
                        related rule of criminal procedure
       {¶ 58} The board found that respondent violated DR 7-103(B), 7-102(A),
and 1-102(A)(5) by failing to disclose the two reports. The violations of DR 7-
102(A) and 1-102(A)(5) flow from the finding of the board that respondent
violated DR 7-103(B). Therefore, I limit my discussion to DR 7-103(B).
       {¶ 59} The majority holds that the disclosure requirements placed upon a
prosecutor by DR 7-103(B) are limited in scope to the requirements of Crim.R.
16(B)(1)(f). Accordingly, the majority holds that if Crim.R. 16(B)(1)(f) is not
violated, then, a fortiori, DR 7-103(B) is not violated.
       {¶ 60} Because the disciplinary rule differs from the related rule of
criminal procedure in plain language and purpose, I disagree. I would hold that
the disciplinary rule requires more of a prosecuting attorney than does the rule of
criminal procedure. Such a holding would not require “open discovery” as the
majority fears. Moreover, I find that United States v. Ruiz (2002), 536 U.S. 622,
122 S.Ct. 2450, 153 L.Ed.2d 586, does not control this case. Ruiz concerned the
constitutional right to a fair trial and the waiver of that right by a defendant when
he executed a plea; this case concerns the rules of conduct governing prosecutors
when they possess evidence favorable to the defense. The holding of Ruiz has no
bearing on the question of the professional conduct of a prosecuting attorney.




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The plain language of DR 7-103(B) requires disclosure of the reports in this case
 because the reports are evidence “that tends to negate the guilt of the accused,
          mitigate the degree of the offense, or reduce the punishment.”
       {¶ 61} DR 7-103(B) states: “A public prosecutor or other government
lawyer in criminal litigation shall make timely disclosure to counsel for the
defendant, or to the defendant if he has no counsel, of the existence of evidence,
known to the prosecutor or other government lawyer, that tends to negate the guilt
of the accused, mitigate the degree of the offense, or reduce the punishment.”
       {¶ 62} Crim.R. 16(B)(1)(f) states: “Upon motion of the defendant before
trial the court shall order the prosecuting attorney to 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.”
       {¶ 63} The chief difference in these two rules is in their descriptions of
the evidence subject to disclosure. Under Crim.R. 16(B)(1)(f), the prosecuting
attorney must disclose all evidence “material” to guilt or punishment, whereas
under DR 7-103(B), the prosecuting attorney must disclose all evidence “that
tends to” negate guilt or lessen the criminal consequences.
       {¶ 64} Crim.R. 16(B)(1)(f) is a prophylactic rule, mirroring the rule
explained in Brady v. Maryland, which describes the role of the Due Process
Clause in ensuring that a defendant receives a fair trial by receiving all materially
exculpatory evidence. 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (“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”).
       {¶ 65} The United States Supreme Court has considered the difference
between the disclosure rule of Brady, which, like Crim.R. 16(B)(1)(f), requires
disclosure of “material” evidence, and ABA model rules, which, like DR 7-
103(B), require disclosure of evidence that “tends to” negate guilt or lessen the




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offense. Kyles v. Whitley (1995), 514 U.S. 419, 436-437, 115 S.Ct. 1555, 131
L.Ed.2d 490. The court noted that “the rule in [Brady] requires less of the
prosecution than the ABA Standards for Criminal Justice, which call generally for
prosecutorial disclosures of any evidence tending to exculpate or mitigate.” Id. at
437. The court also referred to ABA Model Rule of Professional Conduct 3.8(d)
(1984), which contains language similar to Ohio’s current Prof.Cond.R. 3.8(d),
the successor to DR 7-103(B).       Thus, the United States Supreme Court has
recognized that in some cases, rules governing the conduct of prosecuting
attorneys may require greater disclosure of evidence favorable to the defense than
the defendant would be entitled to under the Constitution alone.
       {¶ 66} By artificially constraining DR 7-103 to the scope of Crim.R.
16(B)(1)(f), the majority has improperly added words to the rule. The word
“material” does not appear in DR 7-103.
       {¶ 67} The question under DR 7-103(B), by its own terms, is whether the
evidence is of the type “that tends to” negate the defendant’s guilt or lessen his
offense or punishment. This finding can be made by relating the undisclosed
evidence to the offense charged.
       {¶ 68} In this case, the victim’s inconsistent statements amount to
evidence that “tends to” negate the guilt or lessen the level of the offense and the
punishment under DR-7-103(B).           The two undisclosed reports add some
conflicting evidence, albeit very little, on the issue of the victim’s age at the time
the acts were committed—an element of the offense charged. According to these
reports, the victim stated that the rapes occurred in 2001, which would mean that
she was 13 years old and that therefore the defendant could not be convicted for
rape of a 12-year-old. The defense should have been informed of the existence of
this evidence in order to decide whether to attack the state’s proffered timeline or
at least impeach the victim’s credibility. The evidence tended to negate the
defendant’s guilt and should have been disclosed under DR 7-103(B).



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        A broad reading of DR 7-103(B) will not result in “open discovery.”
        {¶ 69} The respondent claims that the result of a broad reading of DR 7-
103(B) will be “open discovery” in criminal cases.2 A prosecuting attorney must
disclose all evidence tending to negate the defendant’s guilt or lessen the offense
or punishment under DR 7-103(B).              This has been the rule since this court
adopted DR 7-103 almost 40 years ago. Any evidence that does not have such a
tendency need not be disclosed. The premise of the rule is that fair trials in our
system of criminal justice are more likely to occur when prosecutors do not play
“hide the ball” with defense counsel.
        {¶ 70} To the extent that policy considerations should play any role in our
disposition of this case, I prefer the position of the court in Kyles, that disclosure
is preferable in close cases, because “it will tend to preserve the criminal trial, as
distinct from the prosecutor's private deliberations, as the chosen forum for
ascertaining the truth about criminal accusations.” 514 U.S. at 440, 115 S.Ct.
1555, 131 L.Ed.2d 490.
           DR 7-103(B) and Crim.R. 16(B)(1)(f) serve different purposes.
        {¶ 71} The purpose of Crim.R. 16(B)(1)(f) is to ensure that persons
charged with a crime will receive a fair trial. State v. Brown, 115 Ohio St.3d 55,
2007-Ohio-4837, 873 N.E.2d 858, ¶ 40. The question for constitutional purposes
is “not whether the defendant would more likely than not have received a
different verdict with the [undisclosed] evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of

2. We have proposed changes to Crim.R. 16, subject to the General Assembly’s approval. The
Staff Notes to the proposed rule state: “The purpose of the revisions to Criminal Rule 16 is to
provide for a just determination of criminal proceedings and to secure the fair, impartial, and
speedy administration of justice through the expanded scope of materials to be exchanged between
the parties.” The summary accompanying the public notice of the proposed rule states: “Criminal
Rule 16 is rewritten to provide a system of more open discovery in criminal cases.” The proposed
rule contemplates increasing the amount of materials exchanged in discovery in criminal cases.
Nothing in the decision of this case should be construed to limit a reasonable, differing
construction of the new rule, should it be implemented.




                                              18
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confidence.” Kyles, 514 U.S. at 434, 115 S.Ct. 1555, 131 L.Ed.2d 490. This fair-
trial analysis, centering on the rights of the accused, has a different purpose than a
rule of conduct describing professional responsibilities.
       {¶ 72} The constitutional protection inscribed in Crim.R. 16(B)(1)(f)
requires that the defendant is entitled to discovery of any favorable evidence that
is “material” to guilt or punishment. Materiality is determined by evaluating
whether the evidence that was not disclosed before trial now casts a new light on
the case and undermines the confidence in the jury verdict. State v. Brown, 115
Ohio St.3d 55, 2007-Ohio- 4837, 873 N.E.2d 858, ¶ 40. This analysis requires a
court to review the case against a defendant to determine whether “ ‘there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’ ” Id. at ¶ 39, quoting United
States v. Bagley (1985), 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481.
       {¶ 73} Although a materiality requirement may be in keeping with the
fair-trial rights afforded to criminal defendants, it does not comport with DR 7-
103(B). The word “material” does not appear in DR 7-103(B); instead, the
question is whether the undisclosed evidence, standing alone, tends to negate the
guilt of the accused. In view of the plain language of DR 7-103(B), the test
announced by the majority, requiring a weighing of the evidence in an underlying
criminal trial, is wholly inappropriate.
       {¶ 74} The professional conduct of an attorney should not be based upon
the quantum of evidence produced at a criminal trial, or whether a defendant
pleads guilty, regardless of the attorney’s conduct. Rather, the conduct of an
attorney should be evaluated on the basis of her own actions. The true measure of
whether her conduct comports with her professional obligations as an officer of
the court is found in the Code of Professional Responsibility. A prosecutor’s
professional duty can be greater than simply observing the criminal rules. EC 7-
13 extols the role of a prosecutor in these words: “The responsibility of a public



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prosecutor differs from that of the usual advocate; his duty is to seek justice, not
merely to convict.”
        {¶ 75} The majority’s observation that “[o]ur decision today should not be
construed as an endorsement of respondent’s nondisclosure of the reports” is a
poor substitute for DR 7-103(B). Indeed, I fear that attorneys will pay greater
heed to the majority’s actual approach—“no constitutional violation, no
misconduct”—and that will become the new measure of professionalism under
DR 7-103 and its successor, Prof.Cond.R. 3.8.
            Even if we adopt a materiality requirement for DR 7-103(A),
                  United States v. Ruiz is inapplicable to this case.
        {¶ 76} Even if we could insert a materiality requirement into DR 7-
103(B), the majority vastly overreaches by applying the evolving standards of
Brady and Crim.R. 16(B)(1)(f) in the context of attorney discipline. The criminal
rules are demonstrably unsuitable for use as rules governing attorney conduct.
The ill fit is manifest in this case.
        {¶ 77} Under the materiality standard of Crim.R. 16, evidence that goes to
the credibility of the victim must be disclosed by the prosecutor, when the
reliability of the victim is likely to be relevant to guilt. See United States v. Ruiz
(2002), 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586, citing Giglio v.
United States (1972), 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104. The
majority seems to concede this point.          Nevertheless, the majority overlooks
respondent’s failure to disclose this evidence in this case, based upon the
erroneous notion that Ruiz applies.
        {¶ 78} Ruiz holds that a defendant who enters a guilty plea thereby waives
the right to complain of certain constitutional errors. Ruiz, 536 U.S. at 630, 122
S.Ct. 2450, 153 L.Ed.2d 586. This waiver includes a waiver of the fair-trial right
to obtain material discovery from the prosecution. Id.




                                          20
                               January Term, 2010




       {¶ 79} The court’s reasoning in Ruiz bears absolutely no relation to the
issue of whether the prosecuting attorney has committed professional misconduct.
Extending Ruiz into the area of attorney discipline is unwarranted, even if a
materiality requirement is applied to DR 7-103(B).
       {¶ 80} When a defendant submits a discovery request and the prosecutor
fails to produce favorable evidence that tends to negate guilt or lessen
punishment, it is immaterial whether the defendant ultimately enters a plea
agreement.    If the prosecutor has committed misconduct along the way, a
defendant’s waiver of certain constitutional errors does not mitigate the
prosecutor’s professional misconduct.
    Respondent violated DR 1-102(A)(4) by engaging in conduct involving
                dishonesty, fraud, deceit, or misrepresentation
       {¶ 81} Respondent,     in   communicating      with    the   court,   twice
misrepresented the statements of the victim.       In the bill of particulars, the
respondent stated: “The victim was interviewed by [the Logan County Children’s
Services employee] on June 12, 2002. She reported that the Defendant raped her
on two occasions over the summer of 2000.” In fact, the victim reported that she
had been raped in 2001, according to the reports. During the plea hearing,
respondent stated, “The victim was interviewed by [the Logan County Children’s
Services employee] on June 12, 2002. She reported what had taken place over the
year of 2000.” Again, the victim actually reported dates in 2001, according to the
reports.
       {¶ 82} The majority reweighs the evidence of the DR 1-102(A)(4)
violations and concludes that the sanctions recommended by the panel and board
should not be imposed. The majority determines that the relator has failed to
prove that respondent’s statements were false, because it is “more likely than not”
that the interviewer misreported the dates actually communicated by the victim




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and because respondent was representing to the court what the victim said, not
what the report said. None of these matters were considered in the board’s report.
       {¶ 83} I would not reweigh the evidence considered by the board on this
issue. While it is possible to construe respondent’s comments as good-faith
interpretations of the evidence in her possession, this does not change the fact that
her statements appear intended to justify her decision to withhold discoverable
evidence from the defendant. Indeed, the board was troubled by this as well.
Respondent did not qualify her statements to the court; she simply presented her
view of the evidence in the guise of the victim’s own statements. Respondent’s
statements to the court served to ensure that the inconsistencies would remain in
the prosecutor’s office, and not in the courtroom.
       {¶ 84} I agree with the board that respondent’s statements were false. I
further agree that when coupled with the failure to disclose the underlying reports,
respondent’s misrepresentations “strike at the very heart and soul of a fair trial.” I
am mindful of the prosecutor’s high professional responsibilities. “A prosecutor
has the responsibility of a minister of justice and not simply that of an advocate.”
Prof.Cond.R. 3.8, Official Comment 1. Therefore, I would adopt the board’s
findings that respondent violated DR 1-102(A)(4).
                                      Sanction
       {¶ 85} I would impose the sanction recommended by the board: a 12-
month suspension with six months stayed.             Respondent has commendable
mitigating circumstances, but the misconduct in this case is severe.
       {¶ 86} For the foregoing reasons, I respectfully dissent.
                               __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First
Assistant Disciplinary Counsel, for relator.
       Kegler, Brown, Hill & Ritter, Christopher J. Weber, and Geoffrey Stern,
for respondent.




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                              January Term, 2010




       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman and Philip R. Cummings, Assistant Prosecuting Attorneys, for amicus
curiae Ohio Prosecuting Attorneys Association.
       Robin N. Piper, Butler County Prosecuting Attorney, and Daniel G. Eichel
and Lina N. Alkamhawi, Assistant Prosecuting Attorneys, for amicus curiae
Butler County Prosecuting Attorney.
                          ______________________




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