In re Dobbie

305 A.3d 780

IN RE Mary Chris DOBBIE, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 975939)

In re Reagan Taylor, Respondent.

An Attorney Licensed to Practice Law in the State of Tennessee

No. 21-BG-0024

District of Columbia Court of Appeals.

Argued May 24, 2022

Decided December 7, 2023

On Report and Recommendation of the Board on Professional Responsibility (Disciplinary Docket Nos. 2014-D208 & D209), (Board Docket No. 19-BD-018)

Timothy J. Simeone, Washington, DC, with whom Thomas B. Mason and Amy E. Richardson, Washington, DC, were on the brief, for respondent Dobbie.

J. Alex Little for respondent Taylor.

Hamilton P. Fox, III, Disciplinary Counsel, with whom Hendrik deBoer, Assistant Disciplinary Counsel, was on the brief, for the Office of Disciplinary Counsel.

Donald B. Verrilli, Jr., Washington, DC, filed a brief on behalf of the National Association of Assistant United States Attorneys and Individual Former Assistant United States Attorneys as amici curiae, in support of respondents.

David B. Goodhand, with whom Stacy M. Ludwig, Channing D. Phillips, Elizabeth Trosman, Washington, DC, John P. Mannarino, and Patrice M. Mulkern were on the brief on behalf of the United States as amicus curiae, in support of respondents.

Samia Fam filed a brief on behalf of the Public Defender Service as amicus curiae, in support of the Office of Disciplinary Counsel.

Sarah F. Kirkpatrick, Washington, DC, filed a brief on behalf of the Mid-Atlantic Innocence Project as amicus curiae, in support of the Office of Disciplinary Counsel.

Before Deahl and AliKhan, Associate Judges, and Glickman,^* Senior Judge.

Dissenting opinion by Associate Judge Deahl at page 815.

AliKhan, Associate Judge:

In Vaughn v. United States, 93 A.3d 1237 (D.C. 2014), this court held that the United States Attorney’s Office for the District of Columbia had violated its constitutional obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose exculpatory information to the defense during the prosecution of Carl Morton and Alonzo Vaughn. We consequently reversed Morton’s convictions for aggravated assault and assault on a law enforcement officer. Vaughn, 93 A.3d at 1244.¹

After Vaughn, Disciplinary Counsel initiated disciplinary proceedings against the prosecutors who committed the Brady violation, respondents Mary Chris Dobbie and Reagan Taylor. This case arises out of those proceedings.

In its Report and Recommendation, the Board on Professional Responsibility found that respondents had violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of Columbia Rules of Professional Conduct. Rule 3.8(e), in relevant part, prohibits prosecutors from "[i]ntentionally fail[ing] to disclose to the defense … any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense." Rule 8.4(c) proscribes "conduct involving dishonesty, fraud, deceit, or misrepresentation." And Rule 8.4(d) forbids conduct that "seriously interferes with the administration of justice." The Board recommended that respondents be suspended from the practice of law for six months.

We agree with the Board that respondents violated each of these rules, but we disagree as to the appropriate sanction. In recognition of the inadequate and ill-advised guidance provided to respondents by their supervisors; the nature of respondents’ Rule 8.4(c) violation; respondents’ lack of bad faith and otherwise unblemished records; and our obligation to treat similar cases alike, we instead impose a six-month suspension, stayed as to all in favor of one year of probation.

I. Factual Background and Procedural History

A. The Collins Report

In late 2007, a brawl erupted at the D.C. Jail, resulting in injuries to several inmates and a guard. Security camera footage of the incident was not very clear, so the U.S. Attorney’s Office relied on D.C. Department of Corrections ("DOC") officers to identify the participants in the incident for purposes of investigation and potential criminal charges. One such officer was Lieutenant Angelo Childs, who was not present for the events but claimed to recognize inmates Vaughn and Morton in the video footage. The U.S. Attorney’s Office indicted Vaughn and Morton for assault and assigned respondents to prosecute the case.

About six months before the trial, Childs sprayed a chemical agent—think mace or pepper spray—on an inmate, Ernest Heath, during a search for contraband at the jail. Heath’s arms were restrained behind his back at the time Childs sprayed him. After this incident, Childs submitted a disciplinary report charging Heath with "Assault Without Serious Injury and Lack of Cooperation." Childs also prepared an incident report defending his own use of force. This latter report stated that Childs had sprayed Heath only after he began "kicking at" a drug-sniffing dog involved in the search. The report also said that Heath had behaved violently and implied—without explicitly stating—that Heath had been unrestrained at the time Childs had sprayed him. The relevant passage of his incident report read:

On Tuesday, April 7, 2009, at approximately 2:12 p.m., I was on North Two conducting a shakedown. Inmate Ernest Heath (309-656) refuses to be search [sic] by the K-9. K-9 Handler David Thomas attempted to search Ernest Heath. Inmate Ernest Heath started kicking at the dog. Because Inmate Ernest Heath’s actions interfered with the normal operations of the facility, I sprayed one burst of chemical agent. I then instructed Inmate Ernest Heath to seize [sic] his disruptive behavior.

Inmate Ernest Heath was placed in restraints, escorted to male Receiving and Discharge, given a shower, change of underwear and bed linen. After showering, Inmate Heath was escorted to the Infirmary to be medically evaluated and treated….

This incident stemmed from the violent/disruptive behavior of Inmate Ernest Heath.

Childs’s supervisor was present for the search and, along with another officer, stated that—contrary to what Childs had claimed in the report—Heath had been restrained when Childs used force on him. The supervisor subsequently reprimanded Childs, issuing him a "Letter of Direction" for violating DOC’s use-of-force policies.

The fallout from Childs’s actions did not end there. DOC opened a formal investigation into the incident, led by investigator Benjamin Collins. Collins reviewed security camera footage of the incident, as well as other evidence, and issued a report memorializing his findings (the "Collins Report"). The Collins Report is 10 pages long with 76 pages of appendices. It includes three substantive sections: a "Background" section describing the basic facts; an "Investigation" section describing the video footage Collins reviewed, the reports the officers involved filed, and any discrepancies between the two; and a "Findings" section with four formal findings.

The Investigation section makes clear that Childs filed multiple false reports about the Heath incident. It explains that Childs "composed and submitted a Disciplinary Report charging inmate Heath with Assault without Serious Injury and Lack of Cooperation," but that the "[v]ideo footage of the incident does not support the allegation that inmate Heath assaulted any Correctional Officer or canine." It also recounts how Childs filed an incident report "suggest[ing] that at the time of the incident, inmate Heath was not restrained, displayed disruptive behavior, and was ‘kicking at’ the canine causing Lieutenant Childs to use chemical agent to restore ‘normal operations.’" But the evidence indicated that in fact "Inmate Heath was in restraints and not a threat to ‘normal operations’ when he was sprayed with chemical agent by Lieutenant Childs." This section also states that, during an interview, Childs admitted that his incident report "was incorrect and written in error," and that he was issued a Letter of Direction reprimand because of his wrongful use of force.

Two of the statements in the report’s Findings section also pertain to Childs. The first is that Childs’s use of chemical agent on a restrained inmate was a violation of DOC policy. The second restates the Investigation section’s adverse credibility finding about Childs’s incident report (although not the one about his disciplinary report): "Lieutenant Angelo Childs submitted a false and or misleading Incident Report of the facts in stating that the inmate was placed in restraints after being sprayed with chemical agent."

In sum, the Collins Report concluded that Childs had violated DOC’s use-of-force policy, had been reprimanded for doing so, had filed a false or misleading incident report, and had filed a false disciplinary report accusing Heath of an assault he did not commit. But only the first two of these four conclusions were formal "findings" in the Findings section (a fact that will be relevant later). Several months after Collins issued his report, DOC demoted Childs from the rank of lieutenant to that of sergeant.²

Aware that the U.S. Attorney’s Office was planning to sponsor Childs in the Vaughn prosecution, Collins informed respondent Taylor that "there was an issue" with Childs. He later emailed her his report, although he did not send any of the evidence on which he had relied—i.e., the videotape—or the appendices. Collins also informed Taylor that DOC had demoted Childs.

Respondents recognized that the Collins Report called Childs’s credibility into question and sought guidance from their supervisors about how best to proceed. Jeffrey Ragsdale, Chief of the Felony Major Crimes Section at the U.S. Attorney’s Office, decided to refer the issue to the Lewis Committee, a committee of senior prosecutors that determines whether the government can sponsor the testimony of law enforcement officers with whom there are credibility concerns. Ragsdale emailed John Roth, the head of the...