Matter Of Larsen

2016 UT 26 (2016)


D was a prosecutor and was charged with two sets of violations of the Utah Rules of Professional Conduct in 2012. One alleged a misstatement of fact in violation of rule 3.3. The other alleged a failure of a prosecutor to make a timely disclosure of exculpatory evidence to the defense under rule 3.8. The district court found that D had violated both rules. It imposed a sanction of suspension for seven months-thirty days for the rule 3.3 violation and six months for the rule 3.8 violation. The rule 3.3 charge arose out of a 2009 proceeding involving a woman on probation for a DUI conviction. Defense counsel asserted that his client had been charged probation fines that were excessive. Craig Webb, an investigator with the Davis County Attorney's Office, collected receipts from the probation agent and recorded data in a spreadsheet. Webb's spreadsheet showed that she had paid $3,797. D requested a sidebar with Judge Allphin, where he indicated that he had a spreadsheet showing that she had paid $6,000. D also stated that his boss, the Davis County Attorney, did not want that information to be disclosed. In the disciplinary proceedings, the district court found that D had misstated the facts in that there was no spreadsheet reflecting a payment of $6,000 at the time of the underlying hearing. It concluded that 'D's statement was a misstatement that a reasonably diligent inquiry would have avoided.' The district court found that D had violated rule 3.3. It also imposed a thirty-day suspension based on that violation. The rule 3.8 charge arose out of a 2010 felony robbery.  The defendant was accused of robbing two stores, Kim's Fashions and Baskin-Robbins, in 2006. No physical evidence connected the defendant to the robberies, but two eyewitnesses from each robbery were called to identify the defendant as the robber. Ten days before trial D and a police officer met with the witnesses to discuss the upcoming trial. D showed the witnesses a single photograph of the defendant and asked the witnesses if they would be able to identify him as the robber at trial. No other photographs were shown. All of the witnesses indicated that they would be able to make the identification. Seven days before the trial, W met with the defendant's attorney and said the prosecution's 'witnesses had ID’d [the defendant].' The attorney did not ask D any more questions about the identification. D did not disclose that he had shown a photograph of the defendant to the witnesses. At trial the first witness testified that he had not seen a photograph of the defendant. D did not correct this false testimony on redirect. The second witness admitted that D had shown her and the first witness a single photograph of the defendant about ten days before trial. D's attorney then moved for a mistrial. When Judge Allphin indicated a willingness to proceed on the second charge D did not volunteer at the time that he had shown the photos to the other victims. D appealed the suspensions.