IN TI-IE SUPREM]E COURT OF THE STATE OF DELAWARE

In the Matter of a Member of the Bar
of the Supreme Court of the State of
Delaware

No. 143, 2016

Board Case No. 1l2424-B

ADAM D. GELOF,

)
)
)
)
)
Respondent. )

Submitted: June 8, 2016
Decided: June 10, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

PER CURIAM:

This 10"‘ day of June, 2016, it appears to the Court that the Board on Professional
Responsibility has filed a Report on this matter pursuant to Rule 9(d) of the Delaware
Lawyers’ Rules of Disciplinary Procedure. The Office of Disciplinary Counsel filed no
objections to the Report. Respondent, through counsel, filed objections which this Court
has considered. The Off`1ce of Disciplinary Counsel responded to Respondent’s
objections. Oral argument was held on June 8, 2016.

This Court has reviewed the matter pursuant to Rule 9(e) of the Delaware

Lawyer’s Rules of Disciplinary Procedure and concludes that the Board’s Report should

be approved.
NOW, 'IHER.EFORE, IT IS ORDERED that the Report filed by the Board on

Professional Responsibility on March 23, 2016 (Exhibit A attached) is hereby

APPROVED.

The Court hereby imposes a suspension of 30 days, beginning July 1, 2016. The
Office of Disciplinary Counsel is directed to tile within ten days of the date of this Order
the costs of the disciplinary proceedings Therea{ter, Respondent is directed to have all
costs paid within thirty days. The Office of Disciplinary Counsel is directed to
disseminate this Order in accordance with the Rules of the Board on Professional

Responsibility.

request of Garrison did not immediately believe what had transpired. (Tr. 219).
Withers testified that when she told Respondent shortly thereafter, "dude, that
wasn’t cool," he (Respondent) sat down and "the expression on his face told me he
had no idea what I was talking about. He really didn’t understand what had just
happened.” (Tr. 120-121).

The following morning, February 5, 2015, Det. King emailed Karen Taylor,
Deputy Court Administrator for the Supen`or Court in and for Sussex County to
inform the Court about the incident. (Jt. Ex 2).8 Taylor forwarded the email to the
Honorable Judge Richard F. Stokes and was summoned to the courthouse for a
meeting. (Tr. 33-34). Taylor and Judge Stol<es then met with Garrison at which time
Garrison was relieved of his firearm. (Tr. 34-36; Jt. Ex. 4). President Judge J an R.

Jurden and Linda Car1nichael, Superior Court Staff Attorney, were notified (Tr.

3 In the email to Taylor, Det. King stated, in part:

This obviously alarmed me and I began to react by attempting to get to
my weapon. Before 1 drew my weapon there was a chuckle in the
room and the door closed. l immediately questioned who that was and
was told it was Dell [ z h aili f. Apparently he was playing a joke.
My concern is that had I een in a different position to draw my
weapon it is quite po ible would have fired my weapon in light of
the threat I perceived or had it been a second longer l may have
decided to wrestle the u om this person. My intent is to make
someone aware becau I ee hat he action demonstrated extremely
poor judgment with re ard o the handling of a firearm in the
courthouse. (Jt. Ex. 2).

RLF| ]4]59£35\'_|

37-38). Peggy Marshall, the Sussex County Chief Prosecutor, was contacted. (Tr.
38). Capitol Police were asked to conduct a criminal investigation. On February 6,
2015, Garrison was placed on administrative leave and escorted from the
Courthouse. (Tr. 38-39).

On February 9, 2015, Administrative Order 2015-l was issued by President
Judge Jurden. (Jt. Ex. 8). The Administrative Order was intended to be an internal
documentg but was mistakenly published on Superior Court’s website and then
reported by the press. (Jt. Exs. 6, 7). Respondent was named in that account and
acknowledged that he “involved a bailiff in a practical joke" and was "professionally
and personally embarrassed for all involved that my actions have resulted in the
matter going this far." (Jt. Ex. 6).

On Friday February 13, 2015, at 4:30 pm, Respondent was informed he was
indefinitely suspended. His badge and keys were removed and he was escorted out
of the Department of Justice building. (Tr. 216).

In early March 2015, Garrison returned to work with similar job
responsibilities, but was demoted from Chief of Security to a Court SecurityI with a

corresponding reduction in pay. (Tr. 42-43). Garrison appealed the employment

9 The Administrative Order was withdrawn from the website due to security

concems. (Tr. 46-47).

9
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decision. By letter dated June 4, 20l5, by Stephanie Fitzgerald, the Court of
Common Pleas Administrator, upheld the employment decision. (Jt. Ex. 5).

Alter the Capitol Police investigation, the matter was presented to the
Departrnent of Justice for criminal review and it was determined criminal charges
were not warranted. On or about April 27, 2015, Respondent was approved to return
to work. He served a 2 month paid suspension (effectively prohibiting his practice
of law). Respondent was demoted from a DAG Level 5, Unit Head 2 to a DAG
Level 3, an entry level position he last held 18 years earlier in 1997. (Tr. 92). His
return at Level 3 (a 12 step demotion) carried a more than 2 % pay cut. (Tr. 92, 217).
Respondent was "put on a probationary period of a year." He was not allowed to
prosecute felony cases, which is what he has been doing since 1998, until it was
approved by the Chief Deputy, Respondent’s Court Supervisor and the Attorney
General himself Respondent also was put on a performance improvement plan and
was subject to review periods. (Tr. 93). Respondent took full responsibility for what
occurred'° and accepted these consequences.

Considerable resources were expended on this matter. Attending meetings,
conference calls and hearings, Taylor’s time alone in responding to this incident was
in excess of 50 hours. (Tr. 52). In addition, during Garrison’s suspension, Taylor

‘° Respondent testifted: "I mean I will be the first to say it, if it weren’t for me,

Del wouldn’t have done this." (Tr. at 90).

10
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assumed Garrison’s responsibilities as Chief of Security in addition to her own
administrative duties for approximately five (5) months. (Tr. 41-42, 52). In
executing her duties as Chief of Security, Taylor worked approximately 70-75 hours
of uncompensated 0vertime. (Tr. 52).

The Delaware Capitol Police conducted eleven (ll) interviews, obtained
courthouse surveillance and briefed Dennis Kelleher, Esquire, the DAG responsible
for determining whether criminal charges would be flled. (Jt. Ex. 3; Tr. 45). Capitol
Police expended 85 - - 90 hours on their investigation. (Tr. 53).

III. THE PRESUMPTIVE SANCTION

Attorney discipline is not intended to be punitive. fn re Koyste, 111 A.Bd 581
(Del. 201 5). Rather, the objectives of the Lawyer Disciplinary System are to protect
the public, to protect the administration of justice, to preserve confidence in the legal
profession, and to deter other lawyers from similar conduct. In re Fountaz'n, 878
A.Zd 1167, 1173 (Del. 2005). To "further these objectives and ‘to promote
consistency and predictability in the imposition of disciplinary sanctions,"’ the
Supreme Court looks for guidance to the ABA Standards for lrnposing Lawyer

Sanctions ("ABA Standards"). See id. (citation omitted).

1 l
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A. ABA STANDARDS

In formulating an appropriate sanction, the Court is generally guided by the
ABA Standards and to relevant Delaware precedent when making an initial
determination of an appropriate or presumptive sanction after finding attorney
misconduct. The ABA Standards set out a four-factor test: (1) the ethical duty
violated; (2) the lawyer’s mental state; (3) the extent of the actual or potential injury
caused by the lawyer’s misconduct; and (4) aggravating and mitigating factors. In re
Lassen, 672 A.2d 988, 998 (Del. 1996). The first three factors lead to a preliminary
determination of the appropriate sanction. The fourth factor- -relevant aggravating
and mitigating circumstances  may be considered in determining whether an
increase or decrease in the presumptive sanction is warranted. ABA Standard 3.0.

l. Duties Owed to the Legal System and the Legal Profession

Violations of Rules 3.5(d) and 8.4(d) involve breaches of duties owed to the
legal system and the legal profession. 111 re Murray, 2012 WL 2324172 at *30 (Del.
June 18, 2012). None of the ABA Standards specifically address the type of conduct
at issue here. The ODC relies on ABA Standards 6.22, 6.32 and 7.2. ABA Standard
6.22 addresses abuse of the legal process through violation of a court order or rule.
ABA Standard 6.32 deals with improper communications with individuals in the

legal system and addresses interference with the outcome of a legal proceeding.

12
RLF\ 14159235»/_1

Finally, ABA Standard 7.2 addresses breaches of a legal duty owed to the profession
and "conduct that is a violation of a duty owed as a professional, and causes injury
or potential injury to. . .the public, or the legal system."

Respondent argues that none of the ABA Standards cited by the ODC are
applicable to the Respondent’s conduct. The Panel agrees that while ABA Standard
7.2 most closely fits the conduct here, none of the cited standards specifically apply.
Instead, the Panel has analyzed the conduct under ABA Standard 5.2 which deals
with a "failure to maintain the public trust" and "cases involving public officials
who engage in conduct that is prejudicial to the administration of justice." Under
ABA Standard 5.2, discipline is imposed if the conduct "causes injury or potential
injury to a party or to the integrity of the legal process." ABA Standard 5.2.

The Delaware Supreme Court "takes very serious y a er n
duty to foster public confidence in our Bar and to maintain the integrity of the legal
profession." In re Howard, 765 A.Zd 39, 46 (Del. 2000). Respondent admitted his
conduct in the courthouse was undignified, discourteous and was prejudicial to the
administration of justice. ('l`r. 66). Respondent acknowledged that his actions
affected the integrity of the Office of the Attorney General, explaining, "it’s like
what kind of prosecutors are you hiring that someone thinks it’s funny to play with

guns in the courthouse." (Tr. 85-86). The Panel appreciates the Respondent’s

13
P.LFl 14159235»»__:

candor and acceptance of responsibility, but must conclude that Respondent’s
actions breached the duties he owed to the Court, the legal system and the
profession.

2. Respondent Acted Intentionally, Knowingly and Recklessly

Respondent acted intentionally knowingly and recklessly when he
persistently requested Garrison brandish his firearm in the Courthouse despite
Garrison’s initial refusal to do so. (Tr. 69). Intent is the "conscious objective or
purpose to accomplish a particular result." ABA Standards, Definitions.
Respondent engaged Gan'ison in an ill-conceived prank in the Courthouse.
Respondent’s intent was to make people laugh. (Tr. 7 1 ).

"‘Knowledge’ is the conscious awareness of the nature or attendant
circumstances of the conduct but without the conscious objective or purpose to
accomplish a particular result." ABA Standards, Definitions. Respondent’s request
to Garrison was speciflc: go in the interview room, pull a gun and tell Donahue to get
the eggs out of the office. (Tr. at 68, 70). Respondent pursued Garrison until
Garrison agreed. (Tr. 69).

Respondent was a seasoned prosecutor and former "gun deputy" and should
have been aware of the potential risks of pointing a loaded firearm at an individual in

a courthouse, particularly in a climate where the security of the public, judges, court

14
RLF\ 14159235\».1

personnel and lawyers has been an issue following a fatal shooting in the New Castle
C0unty Courthouse in 2013. Respondent’s disregard of the risk of harm to others

was reckless.

3. Respondent’s Misc0nduct Caused P0tential Injury

"‘Injury’ is harm to a client, the public, the legal system, or the profession
which results from a lawyer’s misconduct." ABA Standards, Definitions. The level
of injury can range from ‘serious’ injury to ‘little or no’ injury; a reference to
‘injury’ alone indicates any level of injury greater than ‘little or no’ injury." ABA
Standards Definitions. Respondent admits his conduct was embarrassing and
degrading to the Court, the DOJ and the profession and resulted in a waste of
resources by the C0urt (Tr. 84~»86, 218-219). See, fn re Vanderslice, l 16 A.3d 1244,
2015 WL 3858865 at *12 (Del. 2015) (Lawyer’s misconduct caused actual harm --
"an exorbitant waste of judicial resources").

"‘Potential injury’ is the harm to a client, the public, the legal system or the
profession that is reasonably foreseeable at the time of the lawyer’s misconduct, and
which, but for some intervening factor or event, would probably have resulted from
the 1awyer’s misconduct." ABA Standards Detinitions. Had Det. King not been
pinned behind the DOJ interview room door and unable to reach his firearm when

Garrison pointed his loaded semi-automatic weapon at Donahue, the potential harm

15
RLF\ 14159235»'1

resulting from Respondent’s solicitation of Garrison could have been fatal.
Respondent created a dangerous situation and placed-his colleagues and others at
risk for injury or even death. (Tr. at 7 1 ).

1v. ANALYSIS
in applying ABA standard 5.2" in the facts of this tnaner, the Panel

concludes that the presumptive sanction is suspension where Respondent’s actions
"caused injury or potential injury to a party or to the integrity of the legal process."

While the Delaware Supreme Court is significantly guided by prior Delaware
disciplinary decisions, the Panel has found the current situation to be unprecedented.
Both the ODC and Respondent have pointed the Panel to fn re Sclzaejer, 2012 WL
1859887 (Del. May 21, 2012). Schaeffer was involved in a legal dispute with an
attorney who left his firm. When that attorney returned to the law offices against
instruction and in the company of others, there was a confrontation Schaeffer
reacted by calling 91 l, first to report an "altercation” and subsequently called to

19

report a "hostage situation. The result of the calls was the arrival of an armed

police SWAT team and the departing attorney and his staff (which included women

and children) being detained at gunpoint.

" The Board notes that the presumptive sanction would be the same under

ABA Standards 6.22, 6.32, or 7.2.

16
RLF\ 141 smsv.l

Schaeffer was found to have violated Rule 8.4(b) (criminal act), (c) (conduct
involving dishonesty, fraud, deceit or misrepresentation and (d) (conduct prejudicial
to the administration of justice) by falsely reporting to the police that a "hostage
situation" was taking place. The panel in Sclzaej’er concluded that the appropriate
sanction was a public reprimand. That sanction was approved by the Court. The
panel arrived at that recommendation based on the conclusion that the presumptive
sanction was suspension. In determining the appropriate sanction, the Sclzae_fi"er
panel applied ABA Standard 5.0 dealing with violations of duties owed to the
public. Specitically, the panel found Standard 5.l to be the most applicable, which
provides for sanctions in cases involving the commission of a criminal act that
reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in
other respects, or in cases involving dishonesty, fraud, deceit or misrepresentation.
The panel concluded that the presumptive sanction was suspension under Standard
5.12.

Here, there was no charge in the Petition, charges filed, nor evidence
presented that Respondent’s conduct criminal, Respondent’s rnisconduct, however,
occurred in a courthouse, a place where the Court and members of the public expect
professionalism in the resolution of their cases before the Court. Respondent’s

misconduct involved the Chief of Security, the person in the Superior Court then

17
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EXHIBIT A

armed with a gun for the protection of the public. Respondent’s misconduct cast a
shadow over the public’s perception of the DOJ, the State’s chief of law
enforcement agency charged with enforcement of the criminal law_ Respondent’s
misconduct wasted more than one hundred and forty-five (145) hours of Taylor’s
and Capitol Police’s time and resources.

While Sclzae)j“ez' and other Delaware disciplinary decisions involving conduct
degrading to a tribunal and prejudicial to the administration of justice have resulted
in public reprimands, the Panel concludes that suspension is warranted here.'z
Respondent contends that the appropriate focus should be on the actual or potential
injury to the party related to his charged offenses. Respondent acknowledged that
the evidence of such harm to the Court presented was the substantial administrative
inconvenience and that an investigation occurred. Respondent acknowledges that
waste of judicial resources has been recognized as a measure of harm. In re
Vanderslice, 116 A.3d 1244 (Del. 2015). Respondent also argues that reliance on

‘2 See, In re Abbott, 925 A.Zd 482 (Del. 2007)(public reprimand appropriate
for undignified, discourteous and degrading statements against opposing counsel
and the Court in violation of 3.5(d) and 8.4(d)); In re Ra)nunno, 625 A.Zd 248 (Del.
l993)(public reprimand for violation of what is now 3.5(d), insulting and vulgar
language to opposing counsel and the Court); In re Guy, No. 138, 1995 (Del.

l995)(public reprimand for discourteous, degrading and disrespectful remarks about
the Court); and In re Miu~rqv, 2012 WL 2324172 (Del. June 18, 20l2)(public

reprimand for undignified, discourteous and degrading statements to the Court in an

effort to avoid Family Court appointments).

18
RLF\ t¢lzzs?.:s»~.l

potential injury to the participants and bystanders to this conduct is misplaced given
that Respondent was not charged with any violations related to any risks posed to
those parties. The Panel disagrees

Respondent intentionally, knowingly and recklessly created a potentially very
dangerous situation in the Sussex County Courthouse which could have resulted in
injury or even death. Respondent’s "practical joke" caused actual harm to the
Superior Court’s administration of justice by diverting the oourt’s resources to
handle the aftermath of Respondent’s misconduct Additionally, Taylor’s
assumption of Garrison’s duties as Chief of Security required Taylor work
seventy-five (75) uncompensated hours. The DOJ also expended resources in its
investigation determining whether to file criminal charges and in handling
Respondent’s personnel matter. Finally, Respondent’s colleagues were burdened

with Respondent’s caseload upon his suspension. (Tr. at 32).

V. MITIGATING FACTORS

The mitigating factors proven at the Hearing include the following:

A. Absence of a Prior Disciplinary Record

Respondent has no prior disciplinary record after over 20 years of practice,

most spent in public service. (Tr. 222).

RLFI l4l59235v.l

B. Absence of a Dishonest or Selfish Motive

This mitigating factor is inapplicable.

C. Personal or Emotional Problems

This mitigating factor is inapplicable. The testimony at the hearing was that
Respondent was experiencing a stressii.ll day; handling multiple, complicated and
important matters; shuttling between two courtrooms (Tr. 21 l-2l4); and that he was
responding to an instigating pranl<. Respondent and his co-worlcer witnesses
provided uncontroverted testimony as to the stress and methods of coping with stress
experienced by prosecutors. Nevertheless, Respondent did not use stress as an

excuse, only an explanation for his conduct.

D. Timely Good Faith Effort to Make Restitution or to Rectify
Consequences of His Misconduct

The record is replete with Respondent’s efforts to apologize to everyone
directly and remotely affected by his conduct. His efforts to apologize extended to
affected members of the judiciary, and Respondent testified as to the gracious
acceptance and support he received in response. Respondent has also accepted the
professional consequences of his actions and completed a Perforrnance

Improvement Plan with the Department of Justice.

RLFl l4l$')23$v,l

E. Full and Free Disclosure to the Disciplinary Board or a
C0operative Attitude Toward Proceedings

The record reflects that Respondent admitted to both Counts of the
proceeding. Respondent has fully and candidly admitted his conduct during the
investigation conducted by the Department of Justice, the Court and the Oftice of
Disciplinary Counsel. Respondent admitted again his responsibility during the
hearing before the Panel. Disciplinary Counsel acknowledged that cooperation at

the hearing. (Tr. 237).

F. Inexperience in the Practice of Law

This mitigating factor is inapplicable.

G. Character and Reputation

The uncontroverted evidence presented during the Hearing by numerous
witnesses which included DAG’s, Respondent’s wife (and fellow member of the
Bar), defense counsel, a lay person and current and former police officers clearly
established his good character and excellent reputation. Respondent is highly
regarded as a prosecutor and for his service in his community as the founder of a
youth baseball program in Sussex County.

H. Physical or Mental Disability or Impairment

Respondent did not make a claim of i1npainnent.

I. Delay in Disciplinary Proceedings

Respondent consented to the rescheduling of this matter, but testified that this
matter has weighed heavily on him, causing much anxiety and the Department of
Justice delayed his return to his previous assignment pending the outcome of the
disciplinary matter.

J. Interim Rehabilitation

Respondent successfully completed the Perfonnance Improvement Plan
imposed by the DOJ. (Tr. 218). Respondent also demonstrated his remorse and
recognition of the wrongfulness of his conduct. (Tr. 228).

K. Imposition of Other Penalties or Sanctions

Respondent was suspended for two months by the DOJ. (Tr. 91). He was
demoted in rank with a significant loss in pay. (Tr. 217). He was reassigned to other
duties upon his return to work. Respondent had to complete a Performance
Improvement Plan. (Tr. 218). Respondent was put on employment probation for a
year. He was not allowed to prosecute felony cases, which he had been doing since
1998, until such time as approved by the Chief Deputy, Respondent’s Court

Supervisor and the Attomey General himself.

l-.d
l'-J

RLF| 14159235\».1

L. Remorse

Respondent offered his uncontroverted expressions of remorse and regret.
Those expressions of remorse predated the hearing as Respondent and his numerous
witnesses consistently testified as to his previous apologies for his conduct.

M. Remoteness of Prior Offenses

This Standard is inapplicable since Respondent has no prior disciplinary

record.

VI. AGGRAVATING FACTORS

ABA Standard 9.2 sets out the factors which may be considered in
aggravation. The Panel concludes that only one aggravating factor is present. ABA
Standard 9.22(i) lists substantial experience in the practice of law as an aggravating
factor. Respondent has been a member of the bar of the Supreme Court of Delaware
since 1995 and has been employed as a DAG for nearly 20 years. Respondent had
previously been designated the Sussex County DOJ "gun deputy" responsible for the
prosecution of high profile, serious violent felony cases involving firearms
Although, Respondent argues that this Standard is inapplicable since the conduct
occurred independent of or unrelated to the practice of law, the Panel disagrees.

Respondent’s experience and position in the DOJ must be taken into account.

RLFl |4|59235\:.|

CONCLUSION

The Panel has considered the aggravating and mitigating factors. The Panel
agrees that the sole aggravating factor far outweighs the numerous mitigating factors
and concludes that the presumptive sanction of suspension is appropriate
Respondent’s practical joke could have had very serious consequences for the
individuals in the DOJ room that day as well as others in the Courthouse. However,
the Panel does recognize that Respondent has taken responsibility for his actions,
accepted the professional consequences and apologized to all impacted by his
actions. Thus, the Panel has taken the mitigating factors into account in
recommending that the Respondent should only be suspended for a period of 30

days.

RLFI 14159235\/.1

A;Q¢_, C€- _§_A¢¢,_.,_‘,_¢&M’

Llsa A. Schmidt"(Bar No. 3019)

Daled: March 22, 2016

Lisa A. Schmidt (Bar No. 3019)

 

 

Earlc C. Dcmpsey

Dated: March 22, 2016

RLFI |411|}376\¢,1

' - '_.";__._ ."...¢

Lisa A. Schmidt (Bar No. 3019)

Dated: March 22, 2016

BOARD ON PROFESSIONAL RESPONSIBILITY OF THE
SUPREME COURT OF DELAWARE

In the Matter of a Member of the Bar )

of the Supreme Court of the State of ) Board Case No. 112424-B
Delaware

ADAM D. GELOF,
Respondent.

\_/\_/\_J\J

BOARD REPORT AND RECOMMENDATION
This is the report of the Board on Professi0nal Responsibility of the Supreme

Court of the State of Delaware (the "Board") setting forth its findings and
recommendations in the above captioned matter.

The members of the panel of the Board (the "Panel") are Theresa V.
BroWn-Edwards, Esquire, Earle C. Dempsey and Lisa A. Schmidt, Esquire (the
"Chairperson"). The Officc of Disciplinary Counsel (the "ODC") was represented
by Jennifer-Kate Aaronson, Esquire. The Respondent Adam D. Gelof, Esquire (the
"Respondent") was represented by Charles Slanina, Esquire.

I. PROCEDURAL BACKGROUND.
The ODC filed a Petition for Discipline on August l5, 2015 (the "Petition").

The Petition alleged violations of Delaware Lawyers’ Rules of Professional Conduct
Rule 3.5(d) which states, "a lawyer shall not. . .engage in undignified or discourteous
conduct that is degrading to a tribunal," and Rule 8.4(d) which states, "[i]t is

professional misconduct for a lawyer to engage in conduct that is prejudicial to the
RLFI |4|59235\'.1

administration of justice." Both counts of the Petition were admitted by Respondent
in his answer filed on August 25, 2015 (the "Answer"). A hearing was held before
the Panel on November 23, 2015. Post hearing memoranda were requested by the
Panel and submitted on January 22, 201 6.

Testimony and evidence was offered by the parties to provide a factual basis
for a finding of violations of Rules 3.5(d) and 8.4(d) and to assist the Board in
recommending an appropriate sanction.

II. FINDINGS OF FACT

Respondent has been a member of the bar of the Supreme Court of Delaware
since l995. (Petition and Answer 1| l). He has been employed for approximately 20
years as a Deputy Attorney General ("DAG") with the Sussex County Department
of .l ustiee ("DOJ"), with the majority of his career spent in the felony trial unit. (Tr.
63-64). During his career, Respondent has tried more than 60 jury trials, including
capital murder cases and other high profile felony cases. (Tr. 65-66). Respondent
had previously been designated the Sussex County DOJ "gun deputy" responsible
for the prosecution of high profile, serious violent felony cases involving fireanns.
(Tr. 65-66). Respondent was described by a co-worker as "tenacious, diligent and
hardworking" and that "his devotion to the case and getting the job done are

extraordinary." (Tr. lll). Respondent has no prior disciplinary record. (Tr. 222).

2
lu.l-'l 141s923sv.1

On February 4, 2015, Respondent was at work in the Sussex County
Courthouse handling 16 criminal case reviews on a split calendar balanced between
two courtrooms. (Tr. 211-212). ' This was a final case review day and described as
one of the most stressful days for DAG’s. (Tr. 116). Respondent’s predominate
workspace when not in a courtroom was a small witness room ("DOJ roorn")z
between the two courtrooms. (Tr. 32, 82). Respondent was using the DOJ room that
day along with co-workers -- Laurel Braunstein, a DOJ social worker, DAG
Melanie C. Withers, Esquire, DAG David I~Iume IV, Esquire, DAG Casey Lynne
Ewart, Esquire and DAG John W. Donahue IV, Esquire. (Tr. 10).

' Respondent and Donahue have a close personal and professional relationship
going back to when Donahue was assigned to the Sussex office in 2004. (Tr. 122).
That relationship included relying on each other for trial advice in difficult felony
cases, friendship outside the work place and periodically included kidding with each
other to relieve workplace stress. (Tr. 181-184). The DAG’s in Sussex County were

'Final criminal case reviews are attended by the assigned DAG, defense
attorney and defendant. (Tr. 31-32). There were fifty-seven (57) criminal case
reviews on the Superior Court’s calendar on February 4, 2015. (Tr. 30). In addition
to Courtroom l, criminal case reviews were also being held in Courtroom 2, which is

also on the second floor of the Courthouse. (Tr. 30~31). Judge T. Henley Graves was

presiding over a hearing in Courtroom 4 on the first floor at the time of the incident
as well. (Tr. 29).

3 Karen Taylor, the deputy court administrator for the Superior Court in

Sussex County testified that the DOJ room is 10 feet by ll!-‘z feet. (Tr. 32).
3

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described as a "band of brothers" who sometimes tease or "torture" each other to
relieve stress. (Tr. 118). On this day there was a sense that Respondent was having
a particularly bad day based upon the assigned work load and his colleagues viewed
this as an opportunity to torture him. (Tr. 117-118,137-138).

At around 10:00 am that day, Respondent briefly exited the DOJ room.
Donahue was aware that Respondent had an aversion to the smell of hard boiled
eggs (causing him to gag) which had been the source of previous back and forth
jokes. (Tr. 183-184, 119). Respondent’s co-workers saw that Respondent was
particularly stressed so they encouraged Donahue to continue the "hardboiled egg
feud." (Tr. 119). Donahue made a point to eat the eggs over a box of Respondent’s
files as part of the running j oke. (Tr. 67-68, 1 17-l 19). Upon Respondent’s return to
the DOJ room, he observed Donahue eating an egg over his files with additional
eggs sitting in his box of files. (Tr. 67-68). Respondent had a predictable adverse
reaction which led to laughter by everyone including Respondent in the DOJ roorn.:‘
(Tr. 119).

Respondent left the DOJ room laughing and immediately ran into Delbert
Garrison ("Garrison"), Chief of Security of the Superior Court in and for Sussex

County in the hallway outside the DOJ room. (Jt Ex. l (Video 10:24:12)). Without

3 At that time, Detective Jon B. King ("Det. King") was not in the DOJ room.

4
au=i 14159235\».1

any evidence of pre-planning or thought, (Tr. 78-79), Respondent asked Garrison to
go into the witness room with "guns drawn" and tell Donahue to "keep the eggs
away from his files" (Jt. Ex. 10 at 5»6; Tr. 68). Garrison initially refused stating,
"yeah that’s not going to happen." (Tr. 68). Respondent persisted trying to get
Garrison to go in the room and "mess with Donahue." (Tr. 68 -70). Respondent
opened his wallet and offered Garrison $20. (Jt. Ex. l; Jt. Ex. 10 at 6; Tr. 69).
Garrison repeatedly declined stating, "We’re not doing that, keep your money." (Tr.
69; Jt. Ex. 10 at 7,16)4 When Garrison walked away, Respondent followed him into
the bailiff’s office. (Tr. 69). Garrison finally agreed. (Jt. Ex. 10 at 7-8).5 As
Respondent and Garrison exited the Bailiff’s Offlce, Respondent told Garrison:
"Remember, guns [sz'c] drawn.” (Id. at l6). The complete interchange between
Respondent and Garrison prior to the incident took 40 seconds in its entirety. (Jt. Ex.
1 (Video 10:24:28 to 10:25:08)).

Respondent then went to Courtroom 1, where the Honorable I\/I. Jane Brady
was presiding over final case reviews. (Jt. Ex. 1 (photo)). Garrison walked back

"Garrison did not testify at the Hearing.

5 According to Garrison, Respondent then offered the $20 to "Tony" (Charles
A. Sumrners, Jr., a Superior Court bailift). (Jt. Ex. 10 at 7-8). Summers’s
contradictory testimony was not provided to the Panel at the Hearing. The ODC
elicited hearsay testimony from Ms. Taylor regarding Mr. Summers’s invo1vement.

(Tr. 50). Respondent’s request to strike that testimony is granted. The Panel does

not believe the facts surrounding Summers are germane to its analysis.
5

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toward the DOJ room. Just before the door to the DOJ room came into Gan"ison’s
view (Jt. Ex. l(Video 10:25: 12 to 10:25:17)), Det. King opened the door and entered
the DOJ witness room and moved to a position which was behind the door when
0pened.6

Garrison entered the DOJ room, drew his firearm? and pointed it toward
Donahue stating: "Gel0f says keep the eggs away from the files." Immediately
people in the room started laughing. (Tr. 17, 120, l25, 126, 185; Jt. Ex. 10 at 10).
Det. King was jammed in the comer behind where the door swings open and was
only able to see the black semi-automatic handgun and a hand come past the edge of
the door. (Tr. 12). In his position behind the door, Det. King was not able to see that
the individual in question was a bailiff and was unable to see the reaction of the
majority of people in the room. He did not hear Garrison say, "Gelof says keep your
eggs out of his files." (Tr. l1-l2). There was a split second in which Det. King
perceived a threat, but it occurred so quickly that before he could reach for his
weapon or react, he heard a chuckle from the people in the room and Garrison
backed out of the room and the door closed. (Tr. 12).

6 ODC and Respondent agree the individual seen entering the room is in fact
Det. King.

?Garrison stated that his automatic weapon had a loaded clip but was not
loaded with a live round in the chamber. (Jt. Ex. 10 at 8-10.) Garrison stated that

without his finger on the trigger and without a round in the chamber he believed his

conduct in the prank was fully safe. (Jt Ex. 10 at 8- 9, 12).

6
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The people in the DOJ room understood that Garrison’s actions were a prank.
Det. King testified, "Yes, I think at some point, I don’t recall who, but someone said
it was the bailiff and there was some type of joke going on." (Tr. 18). Garrison,
indicated in his statement there was an immediate "big laugh" multiple times. (Jt.
Ex. 10 at l0). "I heard laughing everywhere." (Jt. Ex. 10 at 15). Donahue testified,
"And you know, people started laughing. He said something along the lines of
Adam said get those damn eggs out of here... but people started laughing." (Tr.
185). Withers: "I interpreted it immediately as a joke... I was laughing." (Tr. 125).
Hume: "I realized it was a joke immediately." (Tr. l70). "I’ve known Mr. Garrison
for quite some time. I knew he is the chief bailiff in the Superior, or was at that time,
I knew he wouldn’t do anything to harm any of us. So, when Garrison said it and the
way he said it, I took it as a joke." (Tr. 171). "I-Ie mentioned the eggs that Mr.
Donahue had, so I knew what that was in reference to. I knew that had been a
running joke for some time." (Tr. 171).

Shortly after the incident, Garrison walked to Courtroom 1 and got
Respondent’s attention. Garrison is seen giving Respondent a "thumbs up" across
the courtroom and Respondent looks up and exchanges the gesture. (Jt. Ex. l (Video
and photo)). At some point after completing his final case review in Courtroom l,

Respondent learned partial details of what occurred and despite having made the

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