                               Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 18th day of October, 2017, are as follows:




BY CRICHTON, J.:


2017-B -0178       IN RE: RONALD SEASTRUNK

                   The disclosure obligations found in Rule 3.8(d) of the Louisiana
                   Rules of Professional Conduct and in Brady v. Maryland are
                   coextensive.   For this reason, we find ODC failed to meet its
                   burden of proof in this case and dismiss all charges against
                   respondent.

                   JOHNSON, C.J., concurs in result.
                   WEIMER, J., concurs and assigns reasons.
                   HUGHES, J., concurs with reasons.
10/18/17



                     SUPREME COURT OF LOUISIANA

                                 No. 2017-B-0178

                        IN RE: RONALD SEASTRUNK


                ATTORNEY DISCIPLINARY PROCEEDING


CRICHTON, J.

      This attorney disciplinary matter arises from formal charges filed by the

Office of Disciplinary Counsel (“ODC”) against respondent, Ronald Seastrunk, an

assistant district attorney in Vernon Parish. Specifically, ODC alleges respondent

violated Rule 3.8(d) of the Louisiana Rules of Professional Conduct in failing to

disclose exculpatory evidence. As a result, this Court must now determine an issue

of first impression with ramifications beyond this respondent: whether the ethical

duty outlined in Rule 3.8(d) is broader than the similar duty outlined by the United

States Supreme Court’s landmark case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963). For the reasons that follow, we find the duties set

forth above are coextensive. As a result, we find ODC failed to meet its burden of

proof in this case and dismiss all charges against respondent.


                   FACTS AND PROCEDURAL HISTORY

      These allegations against respondent arise out of the prosecution of Justin

Sizemore (“Sizemore”) for the homicide of Christopher Hoffpauir. In this case, the

discipline-related issues, namely, whether the alleged withheld evidence was

material and exculpatory, are fact and case specific. Therefore, it is necessary to

understand the procedural background of the underlying criminal prosecution.



                                          1
      On June 14, 2010, Christopher Hoffpauir’s body was discovered in a roadside

ditch in Vernon Parish. Christopher’s estranged wife, Kristyn Hoffpauir, gave

conflicting recorded statements to detectives of the Vernon Parish Sheriff’s Office.

In the first statement, on June 15, 2010, Kristyn denied any involvement in her

husband’s murder. In the second statement, on June 16, 2010, Kristyn reported that,

on the day of the murder, she picked up Sizemore and then called Christopher, asking

him to assist her in a roadside emergency. According to Kristyn, she and Sizemore

wanted to lure Christopher to their location, because Sizemore wanted to talk to

Christopher about his relationship with Kristyn. Kristyn stated that Sizemore got

into the trunk of the car because she did not want Christopher to see her with another

man. When Christopher arrived, Sizemore exited the trunk through the passenger

compartment, got out of the car, and shot and killed Christopher. Sizemore picked

up the spent shell casings, and he and Kristyn left the scene. Sizemore stopped the

car on a bridge near Lecompte, Louisiana, and threw the gun and spent casings off

the bridge. Kristyn denied knowing that Sizemore was going to kill Christopher.


      On June 17, 2010, Kristyn participated in a video reenactment of the murder

at the crime scene. During the reenactment, Kristyn again related that Sizemore was

hiding in the trunk, got out, and shot Christopher.


      Sizemore and Kristyn were subsequently indicted for Christopher’s homicide.

In advance of trial, Kristyn accepted a plea agreement, wherein she pleaded guilty

to manslaughter, conspiracy to commit manslaughter, and obstruction of justice.

Sentencing was deferred pending her testimony against Sizemore.


      District Attorney Asa Skinner assigned respondent, along with Assistant

District Attorney Scott Westerchil, to prosecute the case. District Attorney Skinner,

respondent, and Mr. Westerchil agreed that there was no prosecutor who was “first

                                          2
chair,” or primarily responsible, for the case. Respondent and Mr. Westerchil simply

agreed upon a division of labor between them, particularly with regard to the

testimony of the witnesses for which each would take responsibility.


      Despite Kristyn’s plea agreement, the prosecutors remained skeptical about

her version of the events, specifically regarding Sizemore’s location before the

shooting. The vehicle driven to the scene was a Mitsubishi Eclipse convertible. The

vehicle had scant room in the trunk to begin with, and a metal bulkhead separated

the passenger compartment from the trunk. Mr. Westerchil, who was responsible

for Kristyn’s testimony, advised Kristyn that he did not believe her statements about

Sizemore hiding in the trunk. During the first meeting, for which District Attorney

Skinner and respondent were present, Kristyn maintained this version of the events.

During a subsequent meeting with only Mr. Westerchil, Kristyn admitted that

Sizemore had hidden in brush along the side of the road, from which he ambushed

Christopher. Mr. Westerchil memorialized this meeting in handwritten notes, but he

did not disclose this meeting to the defense, as he did not consider them to be

exculpatory.


      The First Trial: Failure to Disclose Kristyn’s Conflicting Statement

      At Sizemore’s first trial in November 2011, Mr. Westerchil advised the jury

in his opening statement that Kristyn would testify that Sizemore lay in wait along

the side of the road for her and Christopher to return to the scene. Sizemore’s

attorney, Tony Tillman, did not know until then that Kristyn’s testimony would

differ from her initial statements to the police. On the second day of trial, Mr.

Tillman objected, noting that Kristyn gave “substantially conflicting statements.”

Judge James R. Mitchell, who presided over Sizemore’s first trial, ordered Mr.

Westerchil to give Mr. Tillman a copy of the notes he had taken during his interviews

                                         3
with Kristyn, which Mr. Westerchil did. After reviewing the notes, Mr. Tillman

conferred with Sizemore, who opted to proceed. The jury was ultimately unable to

reach a verdict, and Judge Mitchell declared a mistrial.


   The Second Trial: Failure to Disclose Statements Concerning Kristyn’s
                            Possession of a Gun


      Sizemore’s second trial revealed an additional piece of evidence that

respondent allegedly failed to disclose.         As background, Jody Thibeaux

(“Thibeaux”) had been called as a defense witness in the first trial. Thibeaux, who

was previously married to Kristyn’s sister, Misty, testified Kristyn told him that she

was the beneficiary of Christopher’s $400,000 life insurance policy and that she had

killed Christopher. After the first trial, District Attorney Skinner asked Detective

Ray Ortiz of the Vernon Parish Sheriff’s Office to interview Thibeaux. Thibeaux

further reported that Misty’s mother told Misty that, approximately three years

earlier, she had found a .22 caliber revolver in Kristyn’s closet. Thibeaux also

indicated that, during this same time period, Kristyn had threatened to kill her

mother. After the interview, Detective Ortiz told respondent what Thibeaux said

about the revolver and asked respondent if that would be considered hearsay.

Respondent told Detective Ortiz it probably was but that he would have to look at it

more closely.


      A few days later, Mr. Westerchil, respondent, and District Attorney Skinner

met to discuss trial strategy.    Detective Ortiz presented his written report of

Thibeaux’s statement, telling the prosecutors he had omitted information regarding

the revolver from his report. District Attorney Skinner advised that it was not

necessary to put the information about the revolver in the report because owning or

possessing a gun is not a crime, the event occurred more than three years before the

                                          4
murder and was too remote in time to be relevant, and, critically, Thibeaux was a

defense witness. Detective Ortiz did not advise the prosecutors at all about Kristyn’s

threat to kill her mother, because he intended to follow up with Kristyn’s sister and

mother.       Mr. Westerchil, who was responsible for cross-examining Thibeaux,

intended to supplement the State’s discovery responses to disclose Detective Ortiz’s

report, but District Attorney Skinner instructed him not to do so.


          At the second trial, on direct examination, Kristyn testified that she had no

experience with firearms, she did not hunt, she did not own a weapon, and she had

never shot a gun. During Mr. Westerchil’s cross-examination of Thibeaux, Mr.

Tillman learned of his interview by Detective Ortiz and immediately objected to any

testimony regarding the undisclosed interview. Judge Mitchell excused the jury and

entertained arguments regarding the objection of defense counsel, during which Mr.

Westerchil, joined by respondent and District Attorney Skinner, argued that the State

was not required to disclose the report of Thibeaux’s interview because it contained

no exculpatory material. Though Judge Mitchell reviewed the report and found in

it an example of exculpatory material, Judge Mitchell nevertheless overruled Mr.

Tillman’s objection, finding the information contained in the report had already been

testified to and provided to Mr. Tillman.


          Later that day, Mr. Tillman learned of the information about a gun being found

in Kristyn’s room and of Thibeaux’s statement about Kristyn threatening to kill her

mother. Mr. Tillman moved for a mistrial based upon the State’s failure to disclose

the information Detective Ortiz learned from his interview. 1 Mr. Westerchil agreed

to a mistrial, and Judge Mitchell thereafter declared a mistrial.




1
    Detective Ortiz testified the material was omitted because he believed it to be hearsay.
                                                   5
                                  The Third Trial

      Before the third trial, Detective Ortiz prepared a supplemental report that

included the information about the revolver and Kristyn’s threat to kill her mother.

That third trial, which was held in May 2012, resulted in Sizemore’s conviction of

Christopher’s murder, and he was sentenced to life in prison. The conviction was

affirmed on appeal. State v. Sizemore, 13-529, 13-530 (La. App. 3d Cir. 12/18/13),

129 So. 3d 860, writ denied, 14-0167 (La. 8/25/14), 147 So. 3d 699.


      Both Judge Mitchell and Mr. Tillman filed disciplinary complaints against

Mr. Westerchil, District Attorney Skinner, and respondent, arising from their failure

to disclose the information that was omitted from Detective Ortiz’s report.


                       DISCIPLINARY PROCEEDINGS

      In September 2014, the ODC filed formal charges against Mr. Westerchil,

who, through counsel, answered the formal charges and denied any misconduct. In

December 2014, the ODC filed similar formal charges against respondent, Ronald

Seastrunk, alleging he violated Rule 3.8(d) (the prosecutor in a criminal case shall

make timely disclosure to the defense of all evidence or information known to the

prosecutor that the prosecutor knows, or reasonably should know, either tends to

negate the guilt of the accused or mitigates the offense) of the Rules of Professional

Conduct. Respondent, through counsel, answered the formal charges, denying any

misconduct. No formal charges were filed against District Attorney Skinner.


      Prior to a formal hearing on the merits, Mr. Westerchil’s matter and

respondent’s matter were consolidated by order of the hearing committee chair.

Following the hearing but prior to the committee issuing its report, Mr. Westerchil

was elected as a judge in the 30th JDC. Accordingly, the ODC ceased to have


                                          6
jurisdiction over Mr. Westerchil’s conduct, pursuant to Supreme Court Rule XIX,

§ 6(C), 2 and the formal charges against him were dismissed without prejudice.


                                       Formal Hearing

       The hearing committee conducted the formal hearing on June 3-4, 2015. ODC

introduced documentary evidence and called several witnesses to testify, including

defense counsel Tony Tillman, Judge James Mitchell, Detective Ray Ortiz, District

Attorney Asa Skinner, Lisa Nelson (Kristyn’s appointed public defender), and Scott

Westerchil. Respondent testified on his own behalf, and called one witness to testify.


                                Hearing Committee Report

       In concluding that respondent committed a violation of Rule 3.8(d), the

committee specifically found that the information related by Detective Ortiz

(concerning Kristyn’s alleged gun and threat to kill her mother) represents a

“troublesome issue.” Mr. Westerchil questioned Kristyn at each trial about her

familiarity with guns. At the first two trials, he did not ask her if she ever possessed

a firearm, but at the third trial, he effectively disarmed Mr. Tillman by asking her

about the gun found in her room. The hearing committee concluded that this

information was pertinent because Sizemore’s version of events placed him stranded

along the side of the road while Kristyn committed the murder. In other words,

Sizemore maintained he hit an ice chest while driving and pulled over to check the

car. After he exited the car, Kristyn then jumped into the driver’s seat and drove off

without him to murder her husband. Detective Ortiz’s information would tend to

support Sizemore’s version of events by demonstrating that Kristyn was more


2
  The Judiciary Commission of Louisiana now has jurisdiction over Mr. Westerchil, and the
disciplinary board has the option of transferring its file on his alleged attorney misconduct to the
Commission for further review and possible investigation as occurred in In re: Hughes, 03-3408
(La. 4/22/04), 874 So. 2d 746.
                                                 7
familiar with guns than she admitted in the first two trials. Because Kristyn denied

any familiarity with guns during the first two trials, the committee determined that

Detective Ortiz’s information not only would have been useful for impeaching her

testimony, but it might have also tended to negate Sizemore’s guilt by demonstrating

that Kristyn could possibly have been the shooter.


      The committee noted that District Attorney Skinner ordered Mr. Westerchil

not to disclose the information from Detective Ortiz to the defense. Respondent

argued that he should be shielded from discipline by virtue of Rule 5.2(b) of the

Rules of Professional Conduct, which provides that “[a] subordinate lawyer does not

violate the Rules of Professional Conduct if that lawyer acts in accordance with a

supervisory lawyer’s reasonable resolution of an arguable question of professional

duty.” The committee disagreed, determining that District Attorney Skinner’s

resolution was neither reasonable nor arguable. According to the committee, District

Attorney Skinner’s decision that such information should not be given to the defense

did not logically follow from the premise that the information was hearsay because,

if the defense had known about the information, it could have called as witnesses the

people identified by Thibeaux as possessing firsthand knowledge of the events in

question.


      Based on the above findings, the committee determined respondent violated

Rule 3.8(d) by failing to disclose to the defense the information procured by

Detective Ortiz, noting that respondent had substantial experience as a prosecutor

and that neither he nor Mr. Westerchil was principally responsible for the case.

However, because principal responsibility of matters relating to Kristyn and

Thibeaux fell upon Mr. Westerchil, the committee determined that, at most,

respondent was negligent in his failure to disclose Detective Ortiz’s information.

                                         8
The committee also determined that respondent’s conduct caused potential injury to

the defense.    After considering the ABA’s Standards for Imposing Lawyer

Sanctions, the committee determined that the baseline sanction is a public

reprimand.


      The committee found no aggravating factors present. In mitigation, the

committee found the absence of a dishonest or selfish motive, a cooperative attitude

toward the proceedings, and good character or reputation in the legal community.


      Turning to the issue of an appropriate sanction, the committee cited In re:

Jordan, 04-2397 (La. 6/29/05), 913 So. 2d 775, wherein a prosecutor withheld from

the defense a statement to the police by an eyewitness to a homicide that she was not

wearing her contact lenses or glasses and could only distinguish shapes. For this

misconduct in Jordan, which resulted in the defendant’s conviction being reversed

on appeal, the Court imposed upon the prosecutor a three-month suspension, fully

deferred.


      In light of this case law, but noting that respondent and Mr. Westerchil agreed

to a mistrial and that respondent was not directly responsible for cross-examining

Jody, the committee recommended that respondent be publicly reprimanded.


      The ODC objected to the hearing committee’s report and recommendation.


                         Order of the Disciplinary Board

      After review, the disciplinary board found that the hearing committee’s

factual findings did not appear to be manifestly erroneous. Additionally, the board

found that the committee’s detailed recitation of facts and chronology of events is

consistent with the testimony and evidence in the record. Based on these facts, the



                                         9
board agreed with the committee’s determination that respondent violated Rule

3.8(d) of the Rules of Professional Conduct.


      As a threshold matter, the board noted that the committee did not address the

issue of whether respondent’s failure to disclose Kristyn’s inconsistent statements

during Sizemore’s first trial violated Rule 3.8(d), and thus, presumably the

committee concluded that the ODC did not prove those allegations by clear and

convincing evidence. The board agreed, noting that respondent was not present

during Mr. Westerchil’s interviews of Kristyn and was never in possession of Mr.

Westerchil’s handwritten notes which evidenced the inconsistent statements. Based

on this reasoning, the board concluded that respondent did not violate Rule 3.8(d)

by failing to disclose Kristyn’s inconsistent statements.


      Despite agreeing with the committee’s legal conclusion, the board determined

that the committee’s legal analysis was incomplete. More specifically, the board

described the issue in this matter as whether the ethical duty imposed by Rule 3.8(d)

is the same as or broader than the constitutional duty imposed by Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny in United States

v. Bagley, 473 U.S. 667 (1985), 105 S.Ct. 3375, 87 L.Ed.2d 481, and Kyles v.

Whitley, 514 U.S. 419 (1995), 115 S.Ct. 1555, 131 L.Ed.2d 490. Respondent argued

that Rule 3.8(d) imposes the same duty as Brady, while the ODC argued that Rule

3.8(d) imposes a broader duty, thereby requiring disclosure of evidence that would

not need to be disclosed under Brady.


      Like the committee, the board found guidance from In re: Jordan, 04-2397

(La. 6/29/05), 913 So. 2d 775, noting that the Court’s opinion in Jordan clearly

indicates materiality will be considered when determining if Rule 3.8(d) was

violated. In its analysis in Jordan, the Court stated, “[t]he language of Rule 3.8(d)

                                          10
is recognizably similar to the prosecutor’s duty set forth in Brady … and its

progeny.” Id. at 781. Accordingly, the board determined that, contrary to the ODC’s

argument, the Court’s holding in Jordan indicates that a prosecutor’s ethical

obligation under Rule 3.8(d) is the same as the constitutional obligation imposed by

Brady and its progeny.


      In order to determine if respondent violated Rule 3.8(d), the board thus had to

determine if the withheld evidence, that being Thibeaux’s statement to Detective

Ortiz, was material. The board determined that Thibeaux’s statement about Kristyn

possessing a gun was material and should have been disclosed to the defense.

Kristyn twice stated under oath that she did not have experience with guns. The

board therefore reasoned that Thibeaux’s statement called into question the

truthfulness of Kristyn’s testimony and, because Kristyn’s credibility was very

important to the prosecution, any evidence negatively affecting her credibility would

be material to the defense. As such, the board determined respondent violated Rule

3.8(d) by failing to disclose Thibeaux’s statement.


      Respondent again argued that he is shielded from a violation of Rule 3.8(d)

because, under Rule 5.2(b), he reasonably relied on District Attorney Skinner’s

decision to not include Thibeaux’s statement about the gun in Kristyn’s possession

in the report and to not provide the report to the defense. The board did not agree.

According to the board, there was not an arguable question of professional duty

under the particular facts of this matter. The board concluded the information

provided by Thibeaux was material and should have been disclosed to the defense;

thus, respondent was not reasonable in his reliance on District Attorney Skinner’s

directive to not include the information in Detective Ortiz’s report and to not disclose

the report to the defense.

                                          11
      The board then determined that respondent negligently violated duties owed

to the public and the legal system. According to the board, respondent should have

known that Thibeaux’s statement impacted Kristyn’s credibility and, thus, should

have been disclosed to the defense. Respondent’s failure to disclose the statement

caused actual harm to the legal system, as it resulted in the parties agreeing to a

mistrial, which, in turn, led to Sizemore going through a third trial. After considering

the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the

baseline sanction is a public reprimand.


      The sole aggravating factor found by the board was respondent’s substantial

experience in the practice of law (he was admitted in 1992). In mitigation, the board

found the absence of a prior disciplinary record, the absence of a dishonest or selfish

motive, timely good faith effort to make restitution or to rectify the consequences of

the misconduct (agreeing to a mistrial), full and free disclosure to the disciplinary

board and a cooperative attitude toward the proceedings, and good character or

reputation in the legal community.


      Turning to the issue of an appropriate sanction, the board again cited this

Court’s opinion in Jordan. Noting that Jordan involved knowing misconduct and

that Mr. Jordan never took remedial action as respondent did by agreeing to a

mistrial, the board determined that respondent’s conduct was less egregious than Mr.

Jordan’s. Accordingly, the board ordered that respondent be publicly reprimanded.

One board member dissented, arguing that the charges against respondent should be

dismissed because “it is unfair to the respondent to issue a public reprimand and

tarnish his reputation based on the charges against him.”


      Both parties appealed the board’s ruling to this Court, and we ordered the

parties to submit written briefs addressing the issue of whether the record supports

                                           12
the disciplinary board’s report.     The matter was thereafter docketed for oral

argument.


      In brief to this Court, ODC asserts prosecutors, according to our holding in

Jordan, have no discretion as a matter of ethics as to whether or not otherwise

exculpatory evidence is subject to disclosure simply because that evidence may later

be deemed not “outcome determinative.” Thus, ODC maintains that a prosecutor’s

duty to disclosure exculpatory evidence is not the same as the constitutional

obligation under Brady and its progeny. Furthermore, ODC concedes the evidence

of Thibeaux’s statement regarding the gun was never constitutionally material

because it did not present a reasonable probability that its nondisclosure would affect

the outcome of Sizemore’s case. However, ODC maintains respondent was still

obligated to disclose the information under Rule 3.8(d) and this Court’s holding in

Jordan. Finally, ODC asserts that a public reprimand is unduly lenient in this case,

and argues that a suspension is the more appropriate sanction for respondent’s

conduct.


      In contrast, respondent argues he had no ethical or constitutional obligation to

disclose to the defense Thibeaux’s statement to Detective Ortiz, as the statement was

not exculpatory, it was not material, and it was withheld in accordance with a

supervisory lawyer’s reasonable resolution of an arguable question of professional

duty. Respondent maintains that Thibeaux’s statement was not exculpatory because

it neither tended to exonerate Sizemore nor impeach Kristyn’s testimony at trial.

Furthermore, urging that this Court has already determined in the Jordan case that

materiality matters under both Rule 3.8(d) and Brady, respondent argues the

statement was not material because the defense knew about the statement during the

third trial and did not utilize it. Finally, respondent states that under Rule 5.2(b) of

                                          13
the Rules of Professional Conduct (the “safe harbor” provision), he had no ethical

obligation to disclose Thibeaux’s statement because District Attorney Skinner, his

supervisory lawyer, determined that Brady did not require such a disclosure.         In

other words, respondent asserts that whether Thibeaux’s statement was covered by

Brady or Rule 3.8(d) is arguable; thus, District Attorney Skinner’s decision not to

disclose it provides a Rule 5.2(b) safe harbor to respondent. For these reasons,

respondent asserts either the formal charges should be dismissed, or in the

alternative, he should receive only a public reprimand.


      The Louisiana District Attorneys Association (“LDAA”) filed an amicus brief

opposing ODC’s argument that prosecutors should be subject to discipline for failing

to disclose evidence that may be theoretically exculpatory even if such evidence does

not meet the Brady threshold. The LDAA asserts that ODC’s proposed “broader-

than-Brady” rule would only create confusion, and ODC has not established that

Brady’s standard has proven inadequate. Once the requirement of materiality has

been severed from Rule 3.8(d), it is no simple matter to determine whether evidence

is “exculpatory” or “tends to negate the guilt of the accused or mitigates the offense.”

Rule 3.8(d). Creating such a rule would also impose new ethical duties upon

prosecutors and subject them to unnecessary discipline.


      For the reasons that follow, we agree with respondent and the LDAA, and

decline to adopt the interpretation of Rule 3.8(d) offered by ODC.


                                   DISCUSSION

      The underlying facts regarding respondent’s specific conduct are not in

dispute. ODC asserts the violations of Rule 3.8(d) arise out of respondent’s alleged

failure to disclose Kristyn’s inconsistent statements during her interviews


                                          14
throughout the investigation, as well as respondent’s failure to disclose hearsay

statements concerning Kristyn’s possession of a gun.


      This Court recognizes the paramount role of the prosecutor in our system of

justice, and the vast discretion to which he is entrusted:

      Because a prosecutor is given such great power and discretion, he is
      also charged with a high ethical standard. A prosecutor stands as the
      representative of the people of the State of Louisiana. He is entrusted
      with upholding the integrity of the criminal justice system by ensuring
      that justice is served for both the victims of crimes and the accused.

In re: Jordan, 04-2397, p. 9 (La. 6/29/05), 913 So. 2d 775, 781, citing In re: Toups,

00-0634, p. 10 (La. 11/28/00), 773 So. 2d 709, 715 (internal citation omitted).

      With such a solemn duty comes great responsibility. As noted by the Supreme

Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

“[s]ociety wins not only when the guilty are convicted but when criminal trials are

fair; our system of the administration of justice suffers when any accused is treated

unfairly.” Id. at 87. In light of this, the United States Supreme Court set forth the

duty to disclose mitigating evidence as follows:

      [S]uppression 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.

Id. at 87. Concerning materiality, the Supreme Court found that evidence is material

“only if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” United States v.

Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).

Furthermore, “[a] ‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome.” Id.

      In addition to Brady, Rule 3.8(d) of the Louisiana Rules of Professional

Conduct sets forth the “Special Responsibilities of a Prosecutor.” In Jordan, we

                                          15
noted that Rule 3.8(d) is “recognizably similar” to the prosecutor’s duty set forth in

Brady. Jordan, 04-2397, p. 9 (La. 6/29/05), 913 So. 2d 775, 781. Rule 3.8(d) states:


       The prosecutor in a criminal case shall . . . make timely disclosure to
       the defense of all evidence or information known to the prosecutor that
       the prosecutor knows, or reasonably should know, either tends to negate
       the guilt of the accused or mitigates the offense, and, in connection with
       sentencing, disclose to the defense and to the tribunal all unprivileged
       mitigating information known to the prosecutor, except when the
       prosecutor is relieved of this responsibility by a protective order of the
       tribunal.[3]
       Louisiana’s Code of Criminal Procedure article 723(B) also sets forth a

specific duty of prosecutors, as dictated by Brady: “[n]otwithstanding any provision

to the contrary contained herein, the state shall provide the defendant with any

evidence constitutionally required to be disclosed pursuant to Brady v. Maryland,

373 U.S. 83 (1963) and its progeny.”


       As mentioned, because this Court has only tangentially, and not specifically,

addressed the relationship between Rule 3.8(d) and Brady in In re: Jordan, 04-2397

(La. 6/29/05), 913 So. 2d 775, we must now determine the parameters of a

prosecutor’s ethical duty to disclose exculpatory material under Rule 3.8(d) as

compared to the duty outlined in Brady. Jordan remains the sole case in which this

Court has disciplined a prosecutor for failing to turn over Brady evidence, and again,

one which provides us limited guidance here. Significantly, in State v. Cousin, 96-

2973 (La. 4/14/98), 710 So. 2d 1065, the underlying criminal case forming the basis

for Jordan, this court had already made a determination that the statement at issue



3
  Rule 3.8(d), first adopted in 1986, and effective January 1, 1987, is modeled after the American
Bar Association’s rule of the same designation, with one significant change that was added in
2006. According to this Court’s “Invitation to Comment” on proposed changes to 3.8(d), the 2006
amendment was at the request of the LDAA, and added the phrase “or reasonably should know”
after “make timely disclosure to the defense of all evidence or information known to the prosecutor
that the prosecutor knows.”
See    https://www.lasc.org/la_judicial_entities/documents/INVITATION_TO_COMMENT_
RULE_3_8(d).pdf.
                                                16
was “obviously” exculpatory, material to the issue of guilt, and “clearly” should have

been produced to the defense.” 4 Therefore, the evidence in Jordan would have been

subject to disclosure under Brady. As a result, the Jordan Court was not required to

determine whether Rule 3.8(d) created a broader duty than the constitutional one set

forth in Brady.5


          We reject ODC’s efforts here to broaden Rule 3.8(d) beyond that which Brady

and its progeny mandates, and specifically find that the duties outlined in 3.8(d) and

Brady are coextensive. ODC’s expansive interpretation of Rule 3.8(d) effectively

removes the materiality standard enumerated by Bagley, supra.6 When confronted

with a similar question, other states have also found the disclosure obligations of

professional rules are coextensive with the obligations required by Brady. See In the

Matter of Attorney C, 47 P. 3d 1167 (Co. 2002) (finding Colorado version of the rule

aligned with Brady and adopting a materiality standard to avoid imposing

“inconsistent obligations upon prosecutors”); Disciplinary Counsel v. Kellogg-




4
    In a footnote, the Cousin court, in an opinion by Justice Lemmon, stated:
                 The prosecutor did not disclose this obviously exculpatory statement
                 to the defense prior to trial, as required by Brady v. Maryland, 373
                 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Kyles v. Whitley,
                 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The defense
                 discovered this information through an anonymous communication
                 during the trial, but after completion of the guilt phase.

Cousin, supra at 1066.
5
  We are aware that courts of other states have interpreted Jordan in different ways. In In re:
Sharon Riek, 350 Wis. 2d 684, 834 N.W. 384 (2013), the Wisconsin Supreme Court interpreted
Jordan as holding that the prosecutor’s ethical duty was coextensive with the duty under Brady.
In contrast, in In re: Kline, 113 A.2d 202 (D.C. 2015), the District of Columbia concluded that
Jordan rejected the idea that prosecutors had a degree of discretion in determining materiality.
However, we specifically note here that this Court in Jordan did not reach the issue we are faced
with today: namely, whether the duty outlined in Rule 3.8(d) of the Louisiana Rules of Professional
Conduct is broader than the duty proscribed in Brady.
6
 Although we recognize it is not necessarily a valid defense to the allegations against respondent,
we find it worth noting that the defense, upon receiving the previously undisclosed hearsay
evidence regarding the revolver, did not utilize the information during the third (and final) trial of
Justin Sizemore.
                                                  17
Martin, 923 N.E. 2d 125 (Ohio 2010) (declining to construe Ohio version of the rule

as requiring a greater scope of disclosure than Brady out of concern it would

“threaten prosecutors with professional discipline for failing to disclose evidence

even when the applicable law does not require disclosure”); In re: Riek, 834 N.W.

2d 384 (2013) (declining to construe Wisconsin version of rule “to impose ethical

obligations on prosecutors that transcend the requirements of Brady” and finding

that “[d]isparate standards are likely to generate confusion”); State ex rel. Oklahoma

Bar Ass’n v. Ward, 353 P. 3d 509 (2015) (construing Oklahoma version of rule as

“consistent with the scope of disclosure required by applicable law”). 7 As these

other courts have found, 8 under conflicting standards, prosecutors would face

uncertainty as to how to proceed, as they could find themselves in compliance with

the standard enumerated in Brady, but in potential violation of the obligation set

forth in Rule 3.8(d). In finding the obligations coextensive in Rule 3.8(d) and Brady,

we decline to impose inconsistent disclosure obligations upon prosecutors, thereby

eliminating confusion.

       A broader interpretation of Rule 3.8(d) also invites the use of an ethical rule

as a tactical weapon in criminal litigation. We find the practical effect of this




7
 But see In re Larsen, No. 20140535, 2016 WL 3369545 (Utah June 16, 2016) (holding that the
standards in Brady and a prosecutor’s ethical obligations to disclose favorable material are
“distinct”); In re Kline, 113 A.3d 202 (D.C. 2015) (D.C. version of the rule does not include
“materiality” limitation); Schultz v. Comm'n for the Lawyer Discipline of the State Bar of Tex.,
No. 55649, 2015 WL 9855916, at 1 (Tex. Bd. of Disciplinary App. Dec. 17, 2015) (concluding
that Texas Rule 3.09(d) is “broader than Brady”); In re Disciplinary Action Against Feland, 820
N.W.2d 672 (N.D. 2012) (rejecting argument that North Dakota equivalent to NY Rule 3.8(b) is
coextensive with Brady); see also, e.g., Brooks v. Tenn., 626 F.3d 878, 892 (6th Cir. 2010) (“[T]he
Brady standard for materiality is less demanding than the ethical obligations imposed on a
prosecutor.”). Similarly, the Supreme Court of Massachusetts recently amended its version of Rule
3.8 and added a comment clarifying that “[t]he obligations imposed on a prosecutor by the rules
of professional conduct are not coextensive with the obligations imposed by substantive law.” See
Mass. S. Ct. Order dated Jan 7, 2016, available at www.mass.gov/courts/docs/sic/rule-
changes/rule-change-sic-rule-307-january-2016.pdf.
8
 See In re: Sharon Riek, 350 Wis. 2d 684, 834 N.W. 384 (2013); Disciplinary Counsel v. Kellogg-
Martin, 923 N.E. 2d 125 (Ohio 2010).
                                                18
potential threat to be poor policy, and, again, decline to adopt the reasoning proffered

by ODC. 9

       In light of the foregoing, we find ODC did not meet its burden of proof of

clear and convincing evidence10 to establish any violation of any Rule of

Professional Conduct in this matter.11 We therefore dismiss all charges against

respondent.

                                       CONCLUSION

       The disclosure obligations found in Rule 3.8(d) of the Louisiana Rules of

Professional Conduct and in Brady v. Maryland are coextensive. For this reason,

we find ODC failed to meet its burden of proof in this case and dismiss all charges

against respondent.




9
  We also note that although ODC proposes what amounts to a rule change through judicial
interpretation, this particular forum is not appropriate for such action. Pursuant to Article V,
Sections 1 and 5 of the Louisiana Constitution of 1974, and the inherent power of this Court,
procedural and administrative rules are created, enacted, and amended through a diligent process
dictated by this Court. Should ODC seek to change a particular rule, it should do so through the
proper channels.
10
  “Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V,
§5(B). Consequently, we act as triers of fact and conduct an independent review of the record to
determine whether the alleged misconduct has been proven by clear and convincing evidence.”
In re Banks, 09-1212, p. 10 (La. 10/2/09), 18 So.3d 57, 63 (citing In re Quaid, 94-1316 (La.
11/30/94), 646 So.2d 343, and Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La. 1992)
(emphasis added).
11
   Respondent also argued in brief to this Court, as he did previously, that in the event we find a
violation of Rule 3.8(d), he is immune from discipline under Rule 5.2(b) of the Rules of
Professional Conduct, which provides that “[a] subordinate lawyer does not violate the Rules of
Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty.” Because we find ODC did not meet its
burden of proof in establishing a violation of any ethical duty, we pretermit any discussion of this
issue.
                                                19
10/18/17



                   SUPREME COURT OF LOUISIANA

                             No. 2017-B-0178

                     IN RE: RONALD SEASTRUNK


              ATTORNEY DISCIPLINARY PROCEEDING


JOHNSON, Chief Justice, concurs in the result.




                                     1
10/18/17


                  SUPREME COURT OF LOUISIANA


                                  NO. 17-B-0178

                        IN RE: RONALD SEASTRUNK

                     ATTORNEY DISCIPLINARY PROCEEDINGS



WEIMER, J., concurring.

      I agree that the respondent has not engaged in misconduct. I write separately

from the majority to emphasize that such conclusion is supported by the plain

language of Rule 3.8(d) of the Louisiana Rules of Professional Conduct.

      As a preliminary, factual matter, the disciplinary board did not manifestly err

in finding that the respondent lacked knowledge of Kristyn Hoffpauir’s varying

accounts of her husband’s homicide. Therefore, the only issue remaining is whether

respondent committed misconduct by failing to disclose statements concerning

Kristyn’s possession of a gun.

      In resolving this issue, the starting point is the language of Rule 3.8, which

provides:

            The prosecutor in a criminal case shall:

      ….

      (d) make timely disclosure to the defense of all evidence or information
      known to the prosecutor that the prosecutor knows, or reasonably should
      know, either tends to negate the guilt of the accused or mitigates the
      offense, and, in connection with sentencing, disclose to the defense and
      to the tribunal all unprivileged mitigating information known to the
      prosecutor … .

      Under the plain language of the rule, a prosecutor is obligated to disclose what

the prosecutor “knows” to be exculpatory information. The formal charges in this
matter do not contain an allegation that the respondent knew that a third-hand

narrative1 relating to Kristyn’s sister discovering a .22 cal. revolver could be

exculpatory. Indeed, from forensics, the respondent knew that Kristyn’s husband was

killed with a different caliber weapon.

       Apart from a prosecutor “knowing” information is exculpatory, Rule 3.8(d)

provides a second path for disclosure–that is for situations in which a prosecutor

“should know” that information is exculpatory. However, pursuant to an amendment

to Rule 3.8(d), the touchstone for when a prosecutor is tasked with predicting any

given piece of information could be exculpatory is reasonableness.2

       It is perhaps no coincidence that Rule 3.8(d) uses the term “reasonabl[e],”

because the Supreme Court has restricted what has become known as the Brady rule

by employing the same term: “evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682

(1985) (emphasis added).3




1
  According to the formal charges, a “detective … learned that … Kristyn’s sister … Misty, had
been present with their mother some two years earlier when they discovered a .22 cal. revolver which
Kristyn had apparently stolen from her mother and concealed in her personal belongings.” Misty
shared this information with her husband, who in turn shared it with a detective, who in turn
provided this information to the prosecution.
2
   In the original “Invitation to Comment,” the proposal was to disclose information “that a
reasonable prosecutor would know,” and this court’s ultimate revision of Rule 3.8 modified this
wording slightly to require disclosure of what a prosecutor “reasonably should know” to be
exculpatory. See “Invitation to Comment” on proposed changes to Rule 3.8(d) (available at
https://www.lasc.org/la_judicial_entities/documents/INVITATION_TO_COMMENT_RULE_3_
8(d).pdf); see also Order to Amend Rule 3.8(d) of the Louisiana Rules of Professional Conduct
(available at http://www.lasc.org/rules/orders/2006/Rule_3_8(d).pdf).
3
  The Bagley Court began its opinion by reciting: “In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 1196, 10 L.Ed.2d 215 (1963), this 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 punishment.’” Bagley, 473 U.S. at 669.

                                                 2
      The majority of this court declares that Rule 3.8(d) is “coextensive” with the

Brady rule. In re: Ronald Seastrunk, 2017-0178, slip op. at 17 (La. 10/ 18/17). The

majority’s comparison of Rule 3.8(d) to the Brady rule is useful, but only to a point.

By its very nature, the Brady rule is applied with the benefit of hindsight, i.e., after

the trial. See Bagley, 473 U.S. at 682 (indicating that the materiality of exculpatory

evidence is evaluated in reference to whether “the result of the proceeding would

have been different.”).

      I fully agree with the majority that a prosecutor’s responsibility in evaluating

what to disclose is weighty, and the majority aptly indicates that a prosecutor has a

“solemn duty” to meet “a high ethical standard.” In re: Ronald Seastrunk, slip op.

at 15. However, Rule 3.8(d) is not structured such that a prosecutor must have

omniscient or clairvoyant powers to meet those demands.

      Instead of requiring a prosecutor to unerringly predict the future of a trial,

complete with all strategies that might be employed by the defense, Rule 3.8(d)

requires a case-by-case examination of the prosecutor’s conduct, primarily in the

context of when it occurred. Here, a narrative to the effect that Kristyn at one time

kept a .22 cal. gun was not information that the prosecutor “reasonably should know,

either tends to negate the guilt of the accused or mitigates the offense.” Rule 3.8(d).

As noted earlier, the respondent knew Kristyn’s husband was killed by a weapon of

a different caliber. Should the respondent have, therefore, known that the gun

possession narrative could be exculpatory? The mere fact Kristyn may have kept a

gun in her closet, years before the murder, does not establish that she ever fired the

gun or knew how to fire the larger caliber weapon used to kill her husband. In fact,

the detective who learned of the gun possession narrative also learned from Kristyn’s

mother that her mother took the gun from Kristyn’s closet and that Kristyn did not

                                           3
even know how to uncock the gun. These facts do not undermine Kristyn’s trial

testimony that she was not familiar with guns.

      In sum, too many leaping inferences would be required to transform the

narrative of Kristyn keeping an unrelated gun in her closet several years before the

murder, into evidence that “tends to negate the guilt of the accused or mitigates the

offense.” Rule 3.8(d). The prosecution actually used the gun possession narrative

in the third trial, which resulted in a conviction, underscoring that the narrative was

not exculpatory. Although I do not want to detract from the focus of Rule 3.8(d)

being on what the prosecutor reasonably should know at the time, this court does

have the unique benefit of evaluating respondent’s conduct in the hindsight context

of three trials, and observing that it was only the third trial, in which the gun

possession narrative was adduced, that resulted in a conviction. Thus, I find from

both the vantage of the circumstances before the third trial and with the benefit of

hindsight (which is essentially the inquiry presented by the majority), that there was

no reason the respondent “reasonably should know” that the gun narrative was

exculpatory for purposes of Rule 3.8(d).

      To reiterate, a prosecutor’s responsibility to identify information that must be

disclosed to the defense is a weighty responsibility. Fundamental fairness and due

process within the criminal justice system depend on prosecutors meeting this

responsibility. See Brady, 373 U.S. at 87 (“We now hold 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.”). In a criminal case, to meet the demands

of our state and federal constitutions, “[t]his means, naturally, that a prosecutor

anxious about tacking too close to the wind will disclose a favorable piece of

                                           4
evidence.” Kyles v. Whitley, 514 U.S. 419, 439 (1995). Lawyer disciplinary

proceedings have a related, but slightly different-set of concerns, inasmuch as

“disciplinary proceedings are designed to maintain high standards of conduct, protect

the public, preserve the integrity of the profession, and deter future misconduct.” In

re Fahrenholtz, 17-0261, p. 7 (La. 4/7/17), 215 So.3d 204, 208. For purposes of

lawyer discipline, I find the text of Rule 3.8(d) sets a sufficiently descriptive standard

for evaluating a prosecutor’s conduct, requiring disclosure of what the prosecutor

actually “knows” or “reasonably should know” at the time to be exculpatory material.

Here, I agree with the majority that the respondent did not violate Rule 3.8(d).




                                            5
10/18/17


                     SUPREME COURT OF LOUISIANA


                                 No. 2017-B-0178

                        IN RE: RONALD SEASTRUNK

                ATTORNEY DISCIPLINARY PROCEEDING


Hughes, J., concurs and assigns reasons.

      I concur in the result. There were others more culpable in this case than

respondent and I do not believe any discipline is appropriate.
