The Everyone-Did-It Defense: Oklahoma Supreme Court Refuses To Disbar Former Prosecutor Who Withheld Evidence in Capital Cases and Used False Subpoenas

yvonnekauger-busThe Oklahoma Supreme Court has rejected a request from the state bar association to disbar Robert Bradley Miller, former assistant district attorney for Oklahoma County, and given him just a suspension from practicing law for 180 days and court costs for egregious misconduct in two capital cases twenty years ago. We have often discussed the lack of deterrence for prosecutors who are rarely disciplined for conduct leading to reversals or false convictions. In this case, the bar wanted Miller out of its ranks for hiding a key deal with a witness and using falsified subpoenas to coerce cooperation from other witnesses. The novel defense — accepted by the state Supreme Court — was that lots of prosecutors acted abusively back then. The shocking opinion was written by Oklahoma Justice Yvonne Kauger (left).

The controversy began with a drive by shooting. On June 24, 1993, gang member Derrick Smith, 17, and Shauna Farrow, 14, were walking home from a party in Oklahoma City around 11:00 p.m. when a car pulled up and opened fire. Farrow was killed and Smith wounded. Smith’s rival gang members, Yancy Lyndell Douglas and Paris LaPriest Powell were each convicted of first degree malice murder and shooting with intent to kill. They were tried separately roughly two years apart by Miller.

Miller was charged with hiding a deal with the Smith:

Count 1 of the misconduct centers around the surviving drive by victim, Derrick Smith, and it contains two primary allegations: 1) that Smith and the respondent “cut a deal” for Smith to identify Douglas and Powell as the gunmen in exchange for favorable treatment on Smith’s own pending criminal charges, but neglected to disclose such a deal to the jury as required by law; and 2) that the respondent interjected himself into Smith’s criminal cases in an attempt to secure favorable treatment for Smith as per their “secret” agreement.

Later, Miller did intervene to help Smith with his pending charges.

He is also accused of using false documents to coerce the testimony of another witness. Smith had three cousins known as the Laster sisters including 14-year-old Jackie, 12-year-old Andrea, and 9-year-old Tiffany. Andrea testified at both trials that she had seen Douglas the day before the shooting in a car identified as the vehicle involved in the shooting. She stated that he was at a nearby apartment complex in the car and waving a gun around.

Miller used false subpoenas to force the cooperation of the sisters:

[F]ake subpoenas which are not authorized by statute but were apparently, routinely issued under the direction of the District Attorney, were utilized to require the girls meet with the prosecutor. Writs of Attachments issued for Jackie and Andrea were based on incorrect information, and arrest warrants were issued in an attempt to force them into cooperating with the respondent. The girls were held in custody of the Oklahoma County Sheriff at one point during the Powell proceeding, and were admonished by the respondent and trial judge about their obligation to testify without the presence of defense attorneys. . . .

[Miller] prepared an Application for a Writ of Attachment for Andrea during the Douglas trial to be brought before the trial judge without delay, even though the writ was based upon her failure to appear pursuant to a proper subpoena, and there is no evidence that such a subpoena was ever issued. A subpoena duces tecum was issued to the principal of Tiffany’s school, even though she was without any personal knowledge of the events. Andrea and Jackie were arrested for failure to appear on subpoenas that are not evidenced in the court records.

Even though these girls were minors, Miller did not notify their parents.

In count III, Miller was found to have withheld evidence of a key witness Linda Greer who told Miller a few weeks before the Douglas trial that, contrary to Derrick Smith’s account of the suspect car pulling into a driveway and changing drivers, Linda Greer did not see the vehicle stop or pull into a driveway. This information was never shared with the defendant.

In count IV, Miller is accused of again withholding important information of a deal with a witness from the defense.

In count V, Miller was found to have withheld evidence on the vehicle.

That is a remarkably disturbing and damning record, but the Oklahoma Supreme Court seemed more concerned with the background of the witnesses than the conduct of the prosecutor. It forgave Miller under a type of “they were all doing it” defense:

Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension.40 Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though Miller’s conduct may have been, and even if such misconduct is punished more harsly[sic] when it occurs now, Miller’s actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place. Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.

The court makes it sound like this occurred during the Middle Ages. This was outrageous conduct when it occurred and the failure to punish such conduct was largely due to courts identifying with and protecting prosecutors, as it did in this case. The Oklahoma Supreme Court has made a history of abuse an excuse for the unethical conduct of prosecutors. I am curious if criminal defendants will be able to use the same defense in their own proceedings going forward.

Some justices are not so relativistic on ethical matters. Justices Taylor and Watt dissented. They could not have put the problem more succinctly or accurately:

Whether it was “decades ago” or today, no attorney should ever commit the “reprehensible” conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.

So the Oklahoma bar wanted his disbarred for good reason, but the Oklahoma Supreme Court gave Miller a laughable suspension from practicing law for 180 days and ordered him to pay more than $12,800 in court costs.

So much for legal ethics in Oklahoma. The text and spirit of the ethical rules have been replaced by a standard based on the lowest common denominator of prosecutor.

Source: ABA