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Tuesday, September 13, 2005

Ind. Decisions - Supreme Court rules in prosecutor misconduct case [Updated]

On Sept. 9, 2004 the ILB posted an entry quoting from the Louisville Courier Journal. Here is part of the story:

The charges, filed Aug. 4, involve a page of notes written on a legal pad by a defendant and passed to his attorney, who was questioning a police officer in February 2003 in preparation for trial.

Winkler and Goode admit that Goode ripped the page from the legal pad without the knowledge or permission of the defense team after the attorney and his client left the room, leaving the notes face down on a table.

See also this 3/10/05 ILB entry.

Today the Supreme Court issued a per curiam opinion in In the Matter of Cynthia L. Winkler and In the Matter of Blaine Goode (9/13/05), a disciplinary action. The 5-page ruling concludes:

For the violation of the defendant’s rights, for their deceit, and for their violation of the public trust, we find that the respondent, Cynthia L. Winkler, is suspended from the practice of law for one hundred-twenty (120) days, and that the respondent, Blaine Goode, is suspended from the practice of law for sixty (60) days, both with automatic reinstatement thereafter. These suspensions shall commence on a date to be decided by further order of this Court after a tempo-rary prosecuting attorney is arranged.

Costs of these proceedings are assessed against the respondents.


BOEHM, J., concurs as to Winkler, but dissents as to Goode, believing facts justifying discipline more serious than a public reprimand are not established by clear and convincing evidence.

[Updated 9/14/05] The Louisville Courier Journal reports here today:
The high court's opinion, written by Chief Justice Randall Shepard, said "the recommended sanction is not adequate and does not sufficiently reflect the serious nature of Winkler's misconduct." The actions taken by the prosecutors were "blatant ethical violations," according to the Supreme Court. Shepard wrote that the prosecutors, "blinded by their zealous quest to prosecute the defendant … lost sight of basic ethical considerations."

Winkler and Goode were prosecuting Lewis Steward on methamphetamine charges in February 2003 when defense attorney Mark Clark, preparing for the trial, questioned a police officer involved in the case.

Steward communicated with Clark during the deposition by writing on a legal pad passed between the two of them. Steward left the pad face down on a table when he and Clark left the courtroom to confer in private.

Goode, who remained at the table with Winkler, ripped the page of notes from the legal pad and handed it to his boss. Winkler then "concealed them by placing the notes among a stack of files she had before her on the table," according to the Supreme Court.

Winkler wanted to compare Steward's handwriting to that on a methamphetamine recipe being used as evidence in the drug case.

Taking the notes "surreptitiously," instead of getting a search warrant, subpoena or court order, violated the attorney-client privilege, Shepard wrote. "Maintaining the confidentiality of communications between an attorney and a client is a foundational element of our justice system," he wrote.

Winkler said in an interview yesterday that "we apologize for violating Lewis Steward's attorney-client privilege. We were wrong and overzealous in the prosecution of a meth dealer. It will never happen again."

Goode, who had been a lawyer for only eight months before the incident, said he apologized "for my action in seizing the note. There is no excuse for it. I acted like the police officer I had been for 10 years."

Taking the notes violated a rule against obtaining evidence by means that violate a person's rights, the Supreme Court said.

The high court also accepted the hearing officer's finding that the prosecutors violated rules against making false statements and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation when they tried to hide the fact that they had the notes, and that the behavior was "prejudicial to the administration of justice," another violation.

Winkler "even went through the charade of looking through her files and not finding the missing notes she knew were there" after the defense team noticed they were missing, Shepard wrote.

Taking the notes concerns the justices, the opinion said, "but their attempts to conceal their misconduct are even more distressing." In that regard, "the most troubling aspect of this case is Winkler's insistence, even in the proceedings before the hearing officer, that she had done nothing wrong," the opinion said.

It noted the hearing officer's conclusion that Winkler has no understanding of why her actions were wrongful. "It is this lack of insight that leads us to conclude that a significant sanction is necessary to ensure that the seriousness of her misconduct is impressed upon her," it said.

Winkler has been an attorney for more than 20 years, the court noted. "In light of her insistence that she did nothing wrong," it said, "we have grave concerns that similar conduct could be repeated in the future."

Winkler said, however, that it will not. She and Goode said they intend to return to the prosecutor's office after their suspensions. "We accept responsibility for our actions and the punishment administered by the Supreme Court," Winkler said.

The Supreme Court concluded that all lawyers must "understand that it is unacceptable to tolerate litigation premised on 'the end justifies the means.'"

Posted by Marcia Oddi on September 13, 2005 12:16 PM
Posted to Ind. Sup.Ct. Decisions