LOUISIANA ATTORNEY DISCIPLINARY BOARD
IN RE: DAVID R. PADDISON
00-DB-045
RULING OF THE DISCIPLINARY BOARD
This attorney disciplinary matter arises out of formal charges, consisting of one count, filed against, David R. Paddison ("respondent") by the Office of Disciplinary Counsel ("ODC"). In the charges, ODC alleges that the respondent violated Rules of Professional Conduct 3.8(d) and 8.4(a)(c)1 in connection with his work as an assistant district attorney in Orleans Parish. More specifically, the charges allege that, during the 1979 criminal prosecution of defendant Isaac Knapper, the respondent failed to turn over evidence to defense counsel that was favorable to the defendant and material to the issue of the defendant's guilt or innocence ("Brady material")2. The hearing committee recommended the formal charges be dismissed. The board concurs and likewise recommends the formal charges be dismissed.
Formal charges were filed on March 30, 2000, some two decades after the events giving rise to them. The respondent answered the charges on April 20, 2000, denying that he violated the Rules of Professional Conduct and asserting the affirmative defenses of laches and/or estoppel and violation of his due process rights. Respondent also claimed that he was unable to effectively defend against the allegations because of the delay in the bringing of the complaint. 3
The respondent filed an Exception and/or Motion to Dismiss on October 17, 2001 which was opposed by ODC. On October 30, 2001, the hearing committee issued its Ruling on Exception and/or Motion to Dismiss in which it determined that dismissal was not warranted, although delay could be considered a mitigating factor if misconduct was found.
After several continuances, a hearing was held on November 6 and 7, 2001. Respondent filed a Post-Trial Brief on January 31, 2002 and his Proposed Findings of Fact and Conclusions of Law on February 5, 2002. ODC filed its Post-Hearing Memorandum on February 19, 2002. The hearing committee issued its report on April 24, 2002, recommending that the charges be dismissed.
ODC filed a Notice of Objection to the Recommendation of the Hearing Committee and the matter was set for oral argument before a board panel on September 19, 2002. For the following reasons, the board adopts the findings and recommendation of the hearing committee.
The formal charges in this matter read, in pertinent part:
The respondent is David R. Paddison, a former prosecutor with the Orleans Parish District Attorney's Office. The respondent was the prosecutor for the District Attorney's Office and charged with the responsibility of prosecuting a criminal defendant by the name of Isaac Knapper for first-degree murder. Prior to the trial, the respondent was aware of the existence of an investigative report by Detective Dillman in a separate armed robbery investigation where the pistol used by the assailants in the second matter was the same weapon used in the fatal shooting in the first-degree murder trial for which Isaac Knapper was being tried. Additionally, the description of the assailants in the second armed robbery investigation matched closely the description given by one of the surviving victims in the first-degree murder trial. The individuals responsible for the subsequent armed robbery did not include Isaac Knapper.
Despite the fact that the subsequent Dillman report contained evidence both exculpatory and impeachment favorable to the defense, the respondent, as a prosecutor, failed to disclose it to the defense prior to or during trial.
Isaac Knapper was indicted, tried, and convicted of first-degree murder and subsequently sentenced to Angola for life. Twelve years later, the Louisiana Supreme Court reversed its conviction based upon the prosecution's withholding of Brady material.
The respondent's conduct constitutes a failure to make a timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense in violation of Rule 3.8(d);4 should the Committee determine that the information was intentionally or knowingly withheld, his conduct may also constitute engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c); his conduct constitutes a violation or attempt to violate the Rules of Professional Conduct in violation of Rule 8.4(a).
The hearing committee recognized its duty to review the evidence and determine, under a clear and convincing standard, whether or not the respondent violated the Rules of Professional Conduct. The committee set forth the underlying facts, noting that those facts were not in dispute and were reported by the Louisiana Supreme Court in State v. Knapper, 579 So.2d 956 (La.1991). Those facts are as follows.
On April 12, 1979 at about 9:00 p.m., two young men, one holding a revolver, confronted Dr. Ronald Banks and Dr. John Hakola, outside the New Orleans Hyatt Hotel on Loyola Ave. Dr. Banks and Dr. Hakola were history professors from the University of Maine attending a conference in New Orleans. The men demanded money from Dr. Banks and Dr. Hakola. When the murder victim, Dr. Banks, reacted by saying "You've got to be kidding," Dr. Hakola struck out at the unarmed robber who was closest to him, and ran for the hotel entrance. The armed robber then struggled with Dr. Banks and shot him in the head, killing him instantly.
Detective John Dillman was the investigating officer. He interviewed Dr. Hakola the night of the murder and the next day. He also interviewed other witnesses. Subsequently, on April 19, 1979, New Orleans police apprehended the perpetrators of another tourist robbery. A gun was recovered in that arrest that later proved to be the gun that was used to kill Dr. Banks. Based on information gained from the arrest of these suspects, Detective Dillman continued his investigation of the murder of Dr. Banks. Of particular relevance is that Det. Dillman prepared what is called the "Dillman Report," his 31 page written investigation report dated May 1, 1979.
Isaac Knapper and an alleged accomplice, Leroy Williams, were arrested on May 9, 1979 for the murder of Dr. Banks. Both were indicted. Williams, when offered a plea bargain reducing the charge against him to manslaughter, agreed to testify against Knapper.
Through the Public Defender's Office, two experienced capital defense attorneys, Robert Zibilich and Clyde Merritt, were appointed to represent Knapper. The case was assigned to Judge Frank Shea, and the Assistant District Attorney assigned to Judge Shea's division was respondent Paddison.
At the trial in 1979 ultimately Mr. Knapper was found guilty and was sentenced to life in prison without benefit of parole. The conviction was upheld on appeal. Eventually, Knapper began efforts to obtain post conviction relief based upon his contention that the prosecutor withheld the Dillman report, which report contained exculpatory evidence. The trial court denied Mr. Knapper's application without a hearing, but the Supreme Court granted the application and ordered an evidentiary hearing. That hearing took place eleven years after the crime, on March 9, 1990, by which time, Mr. Zibilich had died.5 At the hearing, Paddison testified that his normal routine was to turn over his entire file to Mr. Zibilich. The trial judge denied relief to Mr. Knapper and the Supreme Court granted his application for certiorari, State v. Knapper, 572 So.2d 52 (La. 1991), and granted Knapper's post-conviction relief. State v. Knapper, 579 So.2d 956 (La. 1991).
In so doing, the court determined that the prosecutor had not disclosed the Dillman report to the defense. It stated:
The outset question is whether the prosecutor withheld the evidence. The prosecutor's testimony that he turned over his file to deceased defense counsel is contradicted, not only by the absence in the record of his responding to the discovery request for exculpatory evidence, but also by the presence in the record of his response to the prayer for oyer which denied defendant's entitlement to the requested information. Other circumstances raise substantial doubt that the prosecutor produced the Dillman report for the defense: the prosecutor could not recall when he turned over the file, which raises the question of whether the Dillman report was in the file at the time the prosecutor made it available; the prosecutor's specific questions to Dr. Hakola on the color of the gunman's shirt suggest that he did not expect defense counsel to impeach Dr. Hakola in that regard based on information contained in the report; defense co-counsel denied receiving the file or having any knowledge of the Dillman report which contained extremely useful information relevant to this significant capital case; and the conduct of deceased co-counsel, an experienced attorney in capital cases, in not attempting to utilize any of the significant information contained in the report makes it highly unlikely that he had any knowledge of the contents of the report. It is almost inconceivable that an experienced capital defense attorney would have been given a document in which the arresting officer (who recovered the murder weapon in an armed robbery of tourists near a downtown hotel one week later) said "the general physical description, along with the clothing description, of the three subjects closely matched the description of the two wanted subjects in the Murder of Ronald Banks" and not attempted to get before the jury the information that the officer investigating the Banks murder deemed significant enough to include in his report.
State v. Knapper, 579 So2d at 959-60 (footnote omitted).
Between the March, 1990 evidentiary hearing and the filing of formal charges on March 30, 2000, Judge Shea died.
In performing its duty in these disciplinary proceedings, the committee recognized that the ultimate issue to be determined is whether the respondent gave the Dillman report to Knapper's defense counsel, Mr. Zibilich. Noting the distinct and differing legal standards applied by the Supreme Court with respect to post conviction relief matters and the hearing committee's legal standards in disciplinary proceedings, the committee determined that it was not bound by the factual finding made by the Supreme Court, that is, that respondent failed to turn over the Dillman report to Mr. Zibilich.
The committee proceeded to evaluate the evidence presented at the disciplinary hearing, which included the testimony of Ms. Laurie White, the attorney who represented Mr. Knapper in his quest for post-conviction relief, Mr. Clyde Merrit, co-defense counsel for Mr. Knapper at the criminal trial, Mr. John Dillman, the investigating officer of the Banks murder, Mr. Ralph Capitelli, a defense attorney and former First Assistant District Attorney, Mr.Robert Meyers and Mr. Kirk Sins, former Assistant District Attorneys, Judge Jerome Winsberg, a retired Criminal District Court judge who testified as to procedures at Criminal Court and procedures utilized by Judge Shea and who also testified as to the character of the respondent, Judge Peter Garcia, Judge Brady Fitzsimmons, Father Leon Steven Holsouth, III, and Brother David Sinitiere, all of whom testified as to the respondent's good character. The committee also considered the stipulated testimony of Judges Martin Coady and Larry Green as to the respondent's character.
The committee commented that the testimony of Judge Shea and Mr. Zibilich would have been the most important evidence, however both men died years prior to the filing of formal charges. It therefore weighed heavily the testimony of the respondent, whom the committee described as the "sole surviving witness" of the matter.
The committee also reviewed the documentary evidence including, but not limited to, the Dillman report (ODC Exhibit 5), the Application for Bill of Particulars and Motion for Discovery and Inspection with handwritten responses (ODC Exhibit 8) the Prayer for Oyer with handwritten responses (ODC Exhibit 9), the State's Answer to Prayer for Oyer with handwritten amendment (ODC Exhibit 10), the State's Answer to Application for Bill of Particulars and Motion for Discovery and Inspection (ODC Exhibit 11), the Docket Master and Minute Entry for State v. Knapper (ODC Exhibit 6A), the actual minutes of the Knapper criminal proceeding (Respondent Exhibit 2), the transcript of the criminal trial (ODC Exhibit 12), the statement of Dr. Hakola (ODC Exhibit 4), the statement of Leroy Williams, (ODC Exhibit 6), the transcript of the March 9, 1990 hearing (ODC Exhibit 20), and the decision of the Supreme Court in State v. Knapper, supra.
In evaluating the evidence, the committee applied a "clear and convincing" standard. It correctly noted that the clear and convincing standard can be met by circumstantial evidence, nevertheless, it found that the evidence presented by ODC was insufficient. Specifically, the committee noted that ODC relied upon the testimony of Ms. White and Mr. Clyde Merritt to prove its case. The committee recognized that Ms. White had no first hand knowledge concerning whether the Dillman report was turned over to Mr. Zibilich and could only speculate from a review of the murder trial transcript (particularly the questions asked by Mr. Zibilich) as to whether or not he had reviewed the report. The committee further noted that the court records indicated that Mr. Merritt did not participate in the pre-trial hearing concerning discovery and the request for production of Brady materials. This was handled by Mr. Zibilich who indicated that he was satisfied with the State's response to the Prayer for Oyer. 6
Although it thoroughly examined the evidence relative to what Mr. Knapper may have been wearing on the night of Dr. Banks' murder, and noted the discrepancies,7 the committee refused to reach a determination of whether Mr. Zibilich was provided with a copy of the Dillman report through "an ex post facto look at Mr. Zibilich's trial tactics."
The committee found it significant that the respondent had not prepared for the 1990 hearing and cited his testimony: "They sent me a subpoena and I showed up cold." (Tr. p. 211). In contrast, the committee found that the respondent's testimony at the disciplinary hearing to be "more certain . . . than his testimony at the evidentiary hearing [concerning Knapper's post-conviction relief motion] in March, 1990 [before Judge Shea]."
Considering the record and evidence, the committee found that ODC failed to carry its burden of proof and recommended that the charges be dismissed.
The powers and duties of the disciplinary board are defined in Section 2 of the Louisiana Supreme Court Rule XIX, Rules for Lawyer Disciplinary Enforcement. Subsection (G)(2)(a) states that the board is "to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges . . . and prepare and forward to the court its own findings, if any, and recommendations."
Inasmuch as the board is serving in an appellate capacity, the standard of review applied to findings of fact is that of "manifest error." In re Caulfield, 96-1401 (La. 11/25/96); 683 So.2d 714. The board conducts a de novo review of the hearing committee's application of the Rules of Professional Conduct. In re Hill, 90-DB-004.
The hearing committee's findings of fact are not manifestly erroneous. Indeed, the evidence presented at the hearing supports the committee's conclusion that ODC did not establish by clear and convincing evidence that the respondent failed to produce the Dillman report to Mr. Zibilich. Further, at the hearing before the hearing committee, the respondent offered an explanation for each of the issues raised by the Supreme Court in State v. Knapper, supra. He testified as to the following:
1. Prior to the hearing in March 1990 before Judge Shea, he had not reviewed the Knapper record. Tr. p. 211. Prior to the hearing before the hearing committee in November of 2001, he had reviewed the record, including the criminal transcript, and remnants of the D.A.'s file. Tr. p. 188-189, 195-196, 241-242.
2. Respondent described his response to the prayer for oyer in which he denied the defendant's entitlement to exculpatory material, as "somewhat embarrassing" (Tr. p. 201), "a mistake" (Tr. p. 204), an "oversight" (Tr. p. 207). He explained that many of the discovery requests and answers contained boilerplate language and he either did not read the whole request or did not answer it properly. Tr. p. 204. His D.A. file notes indicate that he had made a notation to "amend to read Brady." Tr. p. 201-202. There was a shortage of stenographers at the D.A.'s office, which may have explained why no formal amendment was made. Tr. p. 204-207. He did not deny the defendant's entitlement to Brady material in his response to the bill of particulars filed by Mr. Zibilich. Tr. p. 207. In fact, when counsel for Knapper's co-defendant asked for the same information, he told him that he was entitled to it. Tr. p. 207. The co-defendants adopted each other's pleadings in the case. Tr. p. 209.
3. It was respondent's practice to share police reports with Mr. Zibilich. Tr. p. 191. In fact, Judge Shea would direct him to show his police reports to Mr. Zibilich. Tr. p. 195. The minutes in the Knapper case reflect that on July 3, 1979, Mr. Zibilich stated in court that he was satisfied with all of his responses to discovery. Tr. p. 196. Specifically with regard to the Knapper case, he let Mr. Zibilich read the police report. Tr. pp. 196, 228. He could not recall the specific date he gave the report to Zibilich, but testified that Mr. Zibilich would have never said he satisfied unless he had looked in his file. Tr. p. 197.
4. At the time of the March 9, 1990 hearing, respondent did not know whether the Dillman report was in the D.A. file when it was made available to defense counsel. Tr. p. 228. At the disciplinary hearing, he testified that the report was in the file. Tr. p. 228-229. Further, it was obvious that Mr. Zibilich had seen the report, because he and Mr. Zibilich discussed it with Judge Shea. Tr. p. 229.
5. Respondent would not have allowed Mr. Merrit to review his file. He did not have the same type of relationship with Mr. Merritt as he did with Mr. Zibilich and did not routinely show him his files. Discovery with Mr. Merritt was very formal. Tr. p. 199-200. Mr. Merritt did not appear in court until the trial date and did not participate in the July 3, 1979 discovery hearing. Tr. p. 220.
6. Respondent's specific questions to Dr. Hakola concerning the color of the shirt were not significant because Dr. Hakola could not conclusively state what the color of the shirt was or identify anyone. Tr. p. 216-217. Mr. Zibilich knew this from the beginning, established this through examination of Dr. Hakola, and used this in his closing argument. Tr. p. 216-217. Dr. Hakola was a sympathetic witness whom Mr. Zibilich wanted off the stand and whom he did not want to "beat up." Tr. p. 220. Mr. Zibilich did not want to introduce evidence of the unrelated armed robbery because his defense was alibi and it could futher taint Knapper. Tr. pp. 224, 226-228. Respondent had been cautioned by Judge Shea not to bring up the issue of the separate armed robbery or he would mis-try the case. Tr. p. 224. The key to the case from the prosecution's standpoint was the testimony of the accomplice, Leroy Williams, not Dr. Hakola. Tr. pp. 217-20.
While it may appear that the hearing committee's findings conflict with the findings of the Supreme Court in State v. Knapper, 579 So.2d 956 (La. 1991), the Supreme Court based its decision on the testimony adduced at the post-conviction hearing held in 1990. The hearing committee heard additional evidence to which it applied a clear and convincing standard. Considering the record and evidence, the hearing committee's findings of fact are not manifestly erroneous and it correctly determined that ODC did not carry its burden of proof by clear and convincing evidence.
Considering the foregoing, the board adopts the findings of fact of the hearing committee and, accordingly, the Louisiana Attorney Disciplinary Board recommends that the formal charges against David R. Paddison be dismissed.
LOUISIANA ATTORNEY DISCIPLINARY BOARD
Judy Y. Barrasso
John G. Beckwith, Sr.
Reginald R. Brown, Sr.
Wanda A. Davis
Peter T. Dazzio
Robert E. Leake, Jr.
James L. Pate
Jack O. Whitehead, Jr.
BY:____________________________________________
DAVID R. FROHN
FOR THE ADJUDICATIVE COMMITTEE
1 Those rules provide, in pertinent part:
RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
(d) Make timely disclosure to the defense of all evidence or information known to the prosecutor that 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.
RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
3 The trial in the Knapper matter occurred in 1979. The respondent's alleged misconduct was discovered in 1990 by Laurie White, Mr. Knapper's then-attorney, but a complaint was not filed by Ms. White until 1998, after she was unsuccessful in Knapper's behalf to secure a civil money judgment against respondent. See Knapper v. Connick, 96-0434 (La. 10/15/96); 681 So. 2d 944.
4 ODC charged the respondent under Rule 3.8(d) of the Rules of Professional Conduct. See, footnote 1. The alleged violation occurred in 1979. In 1979, the Code of Professional Responsibility was in effect. DR7-103 addressed the responsibilities and duties of public prosecutors or other government lawyers in nearly identical terms as Rule 3.8(d) of the Rules of Professional Conduct. DR7-103(B) provided:
A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.
5 ODC Exhibit 20, p. 22.
6 Hearing Committee Report, p. 3-4.
7 Hearing Committee Report, p. 8.