Prosecutor Who ‘Played with Fire’ Isn’t Punished

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By Jordan S. Rubin

A prosecutor who failed to disclose a witness statement before trial wasn’t unethical, the Georgia Supreme Court held May 1 ( In re Lee , 2017 BL 143227, Ga., No. S16Y0832, 5/1/17 ).

Prosecutors “play with fire” when they delay disclosure, but the court nonetheless ruled unanimously in Demone Wyatt Lee’s favor.

The Georgia state bar failed to show a “clear-cut” violation of U.S. Supreme Court precedent and a Georgia state ethics rule, both of which demand disclosure of favorable defense evidence, the court said.

Lee didn’t act intentionally or in “bad faith,” so attorney discipline wasn’t warranted, the court said.

An attorney assigned as a “special master” to review the case argued Lee should receive a “formal admonition"; the state bar urged a more severe “public reprimand.”

Failure to Disclose Before Trial

Lee prosecuted a defendant charged with anal and oral sodomy of a child. He was assigned to the case a few weeks before trial.

About a week before trial, the child victim made a statement to Lee that was arguably inconsistent with the child’s previous anal sodomy claim.

Lee didn’t disclose this potentially inconsistent statement before trial, but it came out during the child’s trial testimony. The defense lawyer only learned about the pre-trial statement by overhearing Lee telling a juror about it after trial.

The defendant was convicted of oral sodomy and acquitted of anal sodomy.

The verdict showed the defendant wasn’t prejudiced by Lee’s failure to disclose the arguably inconsistent statement before trial, the court said.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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