                                                  FILED
                                             Aug 29 2018, 12:12 pm

                                                  CLERK
                                              Indiana Supreme Court
                                                 Court of Appeals
                                                   and Tax Court


                 IN THE

Indiana Supreme Court
  Supreme Court Case No. 64S00-1705-DI-325

            In the Matter of
           Trista A. Hudson
                  Respondent.


           Decided: August 29, 2018

          Attorney Discipline Action

        Hearing Officer William N. Riley



             Per Curiam Opinion
              All Justices concur.
Per Curiam.

   We find that Respondent, Trista Hudson, committed attorney
misconduct by failing to disclose exculpatory evidence and by prosecuting
a charge she knew was not supported by probable cause. For this
misconduct, we conclude that Respondent should be suspended for at
least eighteen months without automatic reinstatement.

  This matter is before the Court on the report of the hearing officer
appointed by this Court on the Indiana Supreme Court Disciplinary
Commission’s verified disciplinary complaint. Respondent’s 1998
admission to this state’s bar subjects her to this Court’s disciplinary
jurisdiction. See IND. CONST. art. 7, § 4.


Procedural Background and Facts
   At relevant times, Respondent served as a deputy prosecuting attorney
in Porter County. In 2013, “Defendant” was charged with five counts of
child molesting, the first four of which were tried together and are at issue
here. Counts I and II alleged criminal deviate conduct involving
Defendant’s stepchildren K.C. and E.C., respectively. Counts III and IV
alleged fondling with respect to K.C. and E.C. The four counts were based
upon statements made by the children to various police officials, and there
was no physical or medical evidence of child molesting.

   Five days before trial, Respondent interviewed E.C. in preparation for
trial with a detective present. During this interview E.C. recanted the facts
underlying Count II, stating he had lied at the request of his and K.C.’s
biological father. Respondent believed E.C.’s recantation was truthful.

   However, Respondent did not disclose E.C.’s recantation to defense
counsel, nor did she withdraw Count II at any point prior to or during
trial. During her direct examination of E.C. at trial, Respondent avoided
asking any questions about the allegations underlying Count II. E.C.’s
recantation, and the fact his father had coached him to lie, was revealed at
trial during defense counsel’s questioning of E.C. and other witnesses.
Respondent did not immediately disclose to the court that she had known



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about E.C.’s recantation for nearly one week. After the prosecution
concluded its case-in-chief, the trial court addressed Respondent’s failure
to disclose the recantation and determined that the appropriate remedy
was to enter judgment of acquittal for Defendant as to all four counts.1

   The Commission charged Respondent with violating Indiana
Professional Conduct Rules 3.8(a), 3.8(d), and 8.4(d) in connection with the
conduct described above. Following a hearing, the hearing officer filed his
report to this Court concluding that Respondent violated each of those
three rules as charged.

    The Commission also charged Respondent with violating Rules 8.1(a)
and 8.4(c), based on the Commission’s allegation that Respondent’s
response to the Commission’s request for investigation was knowingly
false. The hearing officer concluded that the Commission had not met its
burden of proving these charges by clear and convincing evidence.


Discussion and Discipline
   Respondent concedes a violation of Rule 3.8(a) but seeks our review of
the hearing officer’s conclusions that she violated Rules 3.8(d) and 8.4(d)
as well as certain underlying findings made by the hearing officer. The
Commission does not seek our review of the hearing officer’s conclusions
that the Commission failed to prove the Rule 8.1(a) and Rule 8.4(c)
charges. Both parties also have filed briefs addressing the question of
appropriate sanction.

   The Commission carries the burden of proving attorney misconduct by
clear and convincing evidence. See Ind. Admission and Discipline Rule
23(14)(g)(1). We review de novo all matters presented to the Court,
including review not only of the hearing officer’s report but also of the
entire record. See Matter of Neary, 84 N.E.3d 1194, 1196 (Ind. 2017). The
hearing officer’s findings receive emphasis due to the unique opportunity



1The State did not appeal this decision, and Respondent’s employment with the prosecutor’s
office was terminated following Defendant’s trial.



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for direct observation of witnesses, but this Court reserves the right to
make the ultimate determination. Id.

   Rule 3.8(a) forbids a prosecutor from prosecuting a charge that she
knows is not supported by probable cause. Respondent concedes that she
violated this rule but attempts to cast her violation as merely a “formal”
one, in that (according to Respondent) Count II technically was left “in the
case” as Defendant’s trial commenced but otherwise was abandoned by
the prosecution. (Mem. in Support of Pet. for Review at 42-43). The
hearing officer did not agree with this reductive view, nor do we.
Respondent gave no indication that Count II was being abandoned when
the court reviewed with counsel the proposed preliminary instructions
(which included an instruction on the Count II charge), nor did she do so
when those instructions were given to the jury orally and in writing. And
immediately after the preliminary instructions were given to the jury,
Respondent told the jury in her opening statement that “[a]t the end of the
evidence . . . I will ask you to find this Defendant guilty in what he is
charged with, the four counts of child molesting.” (Ex. 5 at 26).

   Respondent also admits that she failed to disclose E.C.’s recantation to
the defense, but she argues that Rule 3.8(d) did not require her to do so.
We disagree. Respondent’s argument is premised on the tenuous notion
that E.C.’s recantation was merely impeachment evidence, which
Respondent contends Rule 3.8(d) does not encompass. But Rule 3.8(d) in
relevant part expressly requires timely disclosure of “all evidence or
information known to the prosecutor that tends to negate the guilt of the
accused” (emphasis added). Rule 3.8(d) contains one limited exception not
applicable here involving information subject to a protective order. But




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there is no exception for impeachment evidence.2 Further, under the
circumstances of this case we cannot agree that E.C.’s recantation was
merely impeaching. Respondent concedes E.C.’s recantation was evidence
tending to negate Defendant’s guilt on Count II, and as discussed above
we reject Respondent’s contention that the inclusion of Count II in the trial
was a trivial formality. And in a case in which all remaining counts
likewise were founded entirely upon reports made by Defendant’s two
stepchildren, we find it very difficult to characterize direct evidence that
the stepchildren’s father successfully coached at least one of them to lie
about what Defendant had done as mere impeachment.

   Finally, Respondent argues in her briefing to this Court that her
conduct was not “prejudicial to the administration of justice” within the
meaning of Rule 8.4(d). Again, we cannot agree. The first component of
Respondent’s argument echoes one addressed above; namely,
Respondent’s contention that Defendant was never actually at risk of
conviction of Count II, notwithstanding its inclusion in the trial, because
Respondent elicited no evidence to support that count. This argument
conflates prejudice to the defendant with prejudice to the administration
of justice; they are not the same, and the focus of Rule 8.4(d) is the latter.
See Neary, 84 N.E.3d at 1197. The second component of Respondent’s
argument is that the trial court “overreacted” in entering judgment of
acquittal on all four counts and instead should have taken less drastic
remedial action, such as declaring a mistrial and then retrying Defendant
on Counts I, III, and IV. (Mem. in Support of Pet. for Review at 66-68).




2Respondent devotes much of her memorandum in support of her petition for review to
analyzing the disclosure requirements under the criminal-law Brady doctrine. See Brady v.
Maryland, 373 U.S. 83 (1963). But in this attorney discipline case, our focus is on the
requirements of Rule 3.8(d). Accord Matter of Smith, 60 N.E.3d 1034, 1036 (Ind. 2016). We note
that in applying similar versions of Rule 3.8(d), some jurisdictions have treated the duties
imposed by the rule coextensively with the duties imposed under Brady. See, e.g., In re
Seastrunk, 236 So.3d 509, 518-19 (La. 2017). Other jurisdictions have held that a prosecutor’s
ethical obligations under the rule are broader than those imposed by Brady. See, e.g., In re
Disciplinary Action Against Feland, 820 N.W.2d 672, 678 (N.D. 2012). We need not choose today
between these two approaches because we find Respondent’s conduct runs afoul of Rule
3.8(d) under either approach.



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Even assuming that the trial court had other options within its discretion
to exercise, we are not inclined to shift culpability for the prejudicial
effects of an attorney’s misconduct onto the court forced to take remedial
action to address that misconduct.3 Accord Neary, 84 N.E.3d at 1197. We
also note that Respondent testified as follows at the final hearing in this
matter:

        Whether or not I thought Judge Alexa should’ve done
        something a little different still doesn’t negate the fact that
        but for my lack of making a better decision he never
        would’ve been put in that place and ultimately, as I
        mentioned, victims not getting justice, the State of Indiana
        being harmed, the potential of, God forbid, [Defendant]
        doing something to someone else, none of that would be a
        consideration if I had done something different.

(Tr. at 204-05). Respondent’s testimony accurately captures the thrust of
Rule 8.4(d).

  In sum, we find sufficient support for the hearing officer’s findings and
conclusions. Accordingly, we find that Respondent violated Rules 3.8(a),
3.8(d), and 8.4(d), and we find in favor of Respondent on the remaining
charges. We turn now to the matter of sanction.

   Quite thankfully, we have not previously had occasion to consider the
question of an appropriate sanction for a Rule 3.8(a) or Rule 3.8(d)
violation. There can be little doubt that prosecuting a charge known to
lack probable cause, and failing to disclose known information or
evidence tending to negate a defendant’s guilt, are among the most
serious ethical violations a prosecutor could commit. “The State is never
more awesomely powerful, nor is the individual more vulnerable, than in
a criminal prosecution[.]” State v. Taylor, 49 N.E.3d 1019, 1023 (Ind. 2016).




3Regardless, different remedial action still would have resulted in prejudice to the
administration of justice. For example, a mistrial would have resulted in a delay in the
prosecution, the expenditure of additional judicial resources, the selection and impanelment
of a second jury, and the need for witnesses (including E.C. and K.C.) to testify a second time.



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These rules of professional conduct are central to the prosecutorial
function and essential to ensuring the integrity and fairness of our
criminal justice system.

   Respondent urges us to impose a public reprimand, arguing that she
committed only a “formal” Rule 3.8(a) violation and likening her case to
Matter of Henderson, 78 N.E.3d 1092 (Ind. 2017). As discussed above,
Respondent’s rule violations were not so limited. Moreover, the nature of
Respondent’s misconduct in this case significantly differs from the ill-
advised book deal negotiated by the prosecutor in Henderson and affected
the underlying criminal case far more directly.

   The Commission urges us to impose a four-year suspension without
automatic reinstatement, likening this case to Neary, in which the
prosecutor eavesdropped on confidential attorney-client discussions in
two separate criminal cases. The types of misconduct at issue in this case
and in Neary are extremely serious and erode public confidence in the
criminal justice system. Without attempting to parse which prosecutorial
transgression is qualitatively worse, we find Respondent’s conduct in this
one single case distinguishable from the prosecutor’s repeated violations
in Neary. Additionally, during her testimony in this case Respondent
expressed some measures of contrition, regret, and insight into her
misconduct that distinguish her from the prosecutor in Neary.4

   After careful consideration of this matter, we conclude that Respondent
should be suspended for a period of at least eighteen months and required
to go through the reinstatement process before resuming practice.




4See, e.g., Tr. at 170 (“[T]his is completely on me, it was my case”), at 192 (describing her
failure to disclose E.C.’s recantation to defense counsel as “ridiculous, quite frankly” and
explaining “[i]t’s almost like I shut everything else out, every other reasonable thought that
you would think a person in my position, meaning my experience, would’ve done”), at 193 (“I
can’t explain to you the amount of guilt I feel [that K.C. and E.C. did not get a verdict on
Counts I, III, and IV]. I struggle with that because I was supposed to protect them and also I
was supposed to protect, if the jury found him guilty, any other children in the future from
him, and because I failed to recognize an issue that will forever be on my shoulders”), and at
204-05 (quoted above).



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Conclusion
   The Court concludes that Respondent violated Professional Conduct
Rules 3.8(a), 3.8(d), and 8.4(d). The Court finds in favor of Respondent on
the remaining charges.

   For Respondent’s professional misconduct, the Court suspends
Respondent from the practice of law in this state for a period of at least
eighteen months, without automatic reinstatement, effective October 10,
2018. Respondent shall fulfill all the duties of a suspended attorney under
Admission and Discipline Rule 23(26). At the conclusion of the minimum
period of suspension, Respondent may petition this Court for
reinstatement to the practice of law in this state, provided Respondent
pays the costs of this proceeding, fulfills the duties of a suspended
attorney, and satisfies the requirements for reinstatement of Admission
and Discipline Rule 23(18).

  The costs of this proceeding are assessed against Respondent. The
hearing officer appointed in this case is discharged.


All Justices concur.



ATTORNEY FOR RESPONDENT
Donald R. Lundberg
Indianapolis, Indiana

ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
G. Michael Witte, Executive Director
Seth Pruden, Staff Attorney
Larry Newman, Staff Attorney
Indianapolis, Indiana




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