Summary
In Cuyahoga County Bar Ass'n v. Gerstenslager, 45 Ohio St.3d 88, 543 N.E.2d 491 (1989) the respondent attorney was determined in the contempt proceeding to have deliberately suppressed plainly exculpatory evidence that had the effect of allowing the criminal proceedings against the defendant to extend over many months when the case would probably have been dismissed had the records been produced when originally requested.
Summary of this case from People v. MucklowOpinion
No. 89-252
Submitted May 30, 1989 —
Decided August 16, 1989.
Attorneys at law — Misconduct — Public reprimand — Failure to provide full disclosure of exculpatory information as requested by defense counsel — Failure to comply with court order requiring full disclosure of hospital records to defense counsel.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 47-86-B.
In a complaint filed September 25, 1986, relator, the Cuyahoga County Bar Association, charged that respondent, William E. Gerstenslager, had violated DR 7-103(B) (duty of a public prosecutor to make timely disclosures to defendant of evidence that tends to negate the guilt of the accused) and DR 1-102(A)(5) (engaging in conduct that is prejudicial to the administration of justice). Respondent, throughout the course of the proceedings, denied the violations.
The evidence in support of the complaint established that the respondent, while assistant county prosecutor for Cuyahoga County, failed to provide full disclosure of exculpatory information in accordance with Crim. R. 16 (discovery and inspection) as requested by counsel for the defendant in State v. Khong, Cuyahoga C.P. No. CR 186386. The respondent further was charged with contempt of court for failure to comply with a court order for full disclosure of hospital records to the counsel for the defense. The trial court found respondent guilty as charged. The judgment of the trial court was affirmed in State v. Khong (1985), 29 Ohio App.3d 19, 29 OBR 20, 502 N.E.2d 682. The conviction was ordered expunged by the trial court on November 12, 1987.
The hearing panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court (one of three members dissenting) found that respondent did not, knowingly, refuse to turn over hospital records to defendant's counsel in violation of DR 7-103(B). However, the panel concluded that respondent's grossly negligent and "sloppy" actions did rise to the level of egregiousness so as to constitute a violation of DR 1-102(A) (5). The panel duly noted that Khong was at risk for an extended period of time when the case would, in all probability, have been dismissed were the records produced when first requested. The panel recommended a public reprimand.
On December 16, 1988, the board adopted the findings of fact and conclusions of law of the panel. The board recommended that respondent be publicly reprimanded and taxed the costs of the proceedings.
Spangenberg, Shibley, Traci Lancione, Peter H. Weinberger, Sindell, Rubenstein, Einbund, Pavlik Novak and William J. Novak, for relator.
Ward, Marein Gillette, Patrick J. Carroll, Weston, Hurd, Fallon, Paisley Howley and Thomas C. Buford, for respondent.
We concur with the board's findings and recommendations. Respondent is hereby publicly reprimanded. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.