State ex rel. Okla. Bar Ass'n v. Ward

353 P.3d 509

2015 OK 48

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant

v.Farley W. WARD, RespondentandState of Oklahoma ex rel. Oklahoma Bar Association, Complainant

v.Rex Earl Starr, Respondent.

SCBD Nos. 6102

5918.

Supreme Court of Oklahoma.

June 23, 2015.

Debbie Maddox, Tommy Humphries, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

Douglas W. Sanders, Jr., Poteau, Oklahoma, for Respondent Farley Ward.

Charles F. Alden, III, Oklahoma City, Oklahoma, for Respondent Rex Earl Starr.

Opinion

GURICH, J.

¶ 1 On November 14, 2007, the Muskogee County District Attorney's office filed first degree murder charges against two men, Clinton Potts and Chad Pippin, for the 2004 murder of a man named Gregory Clark. Respondent Ward, who was then an assistant district attorney in Muskogee County, was the lead prosecutor at trial. Respondent Starr represented Mr. Potts. The jury trial of Mr. Potts began on July 20, 2009, and lasted until August 3, 2009. The jury found Mr. Potts guilty, and he was sentenced to life in prison without parole. Respondent Starr recommended Mr. Potts retain appellate counsel and proceed with an appeal. In a four-page opinion, the Court of Criminal Appeals reversed his conviction for prosecutorial misconduct and ineffective assistance of counsel. The disciplinary proceedings against Respondent Ward and Respondent Starr stem from such proceedings.

¶ 2 Respondent Farley W. Ward was admitted to the Oklahoma Bar Association in 1980. He was in private practice until 1984, when he became an assistant district attorney in Haskell County. In 1996, Respondent Ward became first assistant district attorney in LeFlore County, and in 2003, Respondent Ward became a special judge for LeFlore, Latimer, and Haskell Counties. After serving as a special judge for almost two years, he was appointed by Governor Henry to serve the remaining two years of the LeFlore County district attorney's term. Respondent Ward sought reelection but lost narrowly in 2006. In July of 2007, he took the position of assistant district attorney for Muskogee County and worked there for three and a half years. He was then elected district attorney for Pittsburg and Haskell Counties and has served in that capacity since January of 2011. Respondent Ward has never been disciplined by this Court.

¶ 3 Respondent Rex Earl Starr was admitted to the Oklahoma Bar Association in 1973 and has been in the practice of law for more than forty years. Respondent Starr began in private practice, worked as an assistant district attorney, and then was an assistant U.S. attorney for the Eastern District of Oklahoma until 1984. Since 1984 he has been in private practice in Stilwell. Respondent Starr primarily practices in the area of criminal defense and has represented hundreds of criminal defendants in both state and federal court. He has tried cases all over the state of Oklahoma, in Louisiana, Arkansas, Texas, Missouri, and Tennessee. Respondent Starr also represents a number of school districts in his area and serves as a municipal judge for Stilwell and West Siloam. Since 1962, Respondent Starr has served in the Navy, Army, and Army Reserves, just recently retiring in 2004. In his forty plus years of practicing law in this state he has never before been disciplined by this Court.

Facts & Procedural History

¶ 4 On December 7, 2004, Greg Clark was found dead in his yard in Wainwright, Oklahoma. The Muskogee County Sheriff's Department worked the case for approximately three years, actively investigating evidence and leads. Although more than seventy-five witnesses were interviewed over the course of the investigation, no suspect was tied directly to the scene through DNA evidence or otherwise, and the evidence obtained as a result of the investigation was largely circumstantial. The district attorney for Muskogee County at the time of the murder, John David Luton, declined to bring charges against anyone for the death of Mr. Clark. In January of 2007, Larry Moore was elected to serve as the new district attorney in Muskogee County.

¶ 5 On November 14, 2007, almost three years after Mr. Clark's death, the Muskogee County District Attorney's office filed first degree murder charges against Mr. Potts and Mr. Pippin, for the murder of Mr. Clark. Mr. Potts and Mr. Pippin were charged in separate cases but the Information filed in each case alleged the two men acted in concert with each other to “effect the death of the victim, Gregory Leon Clark.”¹ Although a Bill of Particulars was filed seeking the death penalty in Mr. Potts' case, the State eventually abandoned this claim. Respondent Starr was hired to represent Mr. Potts. Mr. Pippin was represented by Donn Baker. Testimony presented at the PRT hearing established that First Assistant District Attorney, Jeff Sheridan, was initially assigned both cases, but Assistant District Attorney James Walters was primarily responsible for the cases from November of 2007 until his firing on June 22, 2009.²

¶ 6 The combined preliminary hearing for Mr. Potts and Mr. Pippin began on April 1, 2008. ADA Walters conducted the portion of the hearing held in April. ADA Sheridan conducted the remainder of the hearing on August 21, 2008. Although ADA Walters testified before the PRT in Respondent Ward's case that Respondent Starr “had my entire case up to that point in time,” which he stated consisted of “investigative reports, witness statements and the pictures,” he later backtracked and testified that at the time of the preliminary hearing, Respondent Starr was only given the ME report and the OSBI lab reports.³

¶ 7 On September 8, 2008, Respondent Starr filed Defendant's Motion for Discovery in Mr. Potts' case and requested, among other standard requests:

[a]ll agreements between the State and any of its witnesses reflecting that said witnesses has or will obtain special or lenient treatment in pending or potential criminal cases in exchange for testimony in this case and any and all consideration or promises of consideration given to any witness by the State or its attorney, including but not limited to immunity, witness fees, assistance to the witness's family or associates of the witness, assistance to or favorable treatment in respect to any criminal action, or anything else which could arguably create an interest or bias in a witness in favor of the State or against the Accused.⁴

The record indicates that on or before February 4, 2009, Shelly Sumpter, ADA Walters' legal assistant gave a copy of the State's discovery notebook to Respondent Starr in person at the Muskogee County District Attorney's office.⁵ Ms. Sumpter testified discovery was not yet complete when she gave Respondent Starr the discovery notebook because additional information kept coming in, and as she would get it, she would send it to Respondent Starr.

¶ 8 The trial against Mr. Pippin was scheduled to go first. But shortly before trial, Mr. Pippin's attorney, Mr. Baker, presented ADA Walters with a notice of alibi.⁶ Because it was so close in time to trial, ADA Walters testified he thought it was the most prudent decision at the time to dismiss the case and further investigate the alibi. Mr. Pippin's case was dismissed without prejudice on February 18, 2009.

¶ 9 Near the time of the dismissal of Mr. Pippin's case, the District Attorney's office received information that an inmate by the name of Peter Williams, who was being held at the Muskogee County jail, had information about two murders, one of which was the murder of Mr. Clark. Jeff Smith, a Muskogee County deputy sheriff, interviewed Mr. Williams on February 3, 2009, wherein, Mr. Williams described a purported confession by Mr. Potts to Mr. Williams, while in jail together, regarding the murder of Mr. Clark. Mr. Williams was then interviewed by ADA Walters and ADA Sheridan. After interviewing Mr. Williams, ADA Walters testified he did not immediately endorse Mr. Williams as a witness in the Potts case because he had misgivings about the truthfulness of Mr. Williams' information.⁷

¶ 10 On June 12, 2009, ADA Walters appeared on behalf of the State at a disposition docket, wherein Respondent Starr was present, and informed the court that Mr. Potts' case was ready to proceed to jury trial on the next docket.⁸ Ten days later, on June 22, 2009, ADA Walters was terminated from the Muskogee County District Attorney's office.⁹ On June 25, 2009, approximately three weeks before trial was set to begin, ADA Sheridan assigned Respondent Ward to the Potts case and advised him the jury trial was set to begin on July 20, 2009. The record reflects that although Respondent Ward had been with the Muskogee County District Attorney's office since July of 2007, up to this point, Respondent Ward had not participated in the investigation or preparation of the Potts case. It was not until ADA Walters was terminated that Respondent Ward began his review of the case.¹⁰

¶ 11 Respondent Ward testified that upon being assigned the case he asked both ADA Sheridan and Ms. Sumpter if discovery had been completed and both assured him it had. He also called Respondent Starr and asked if he had everything he needed, to which Respondent Starr responded “yes.” With less than a month before trial, Respondent Ward testified he spent just about every spare moment he had preparing for trial. He testified he still carried his entire case load in addition to the Potts case and was still being assigned new cases.

¶ 12 As part of his preparation, Respondent Ward interviewed Peter Williams again and decided to endorse him for trial.¹¹ On July 9, 2009, Ms. Sumpter sent a letter to Respondent Starr advising him of additional discovery in the case. Enclosed with the letter was Peter Williams' Muskogee County booking sheet and a recorded interview with Mr. Williams. On July 10, 2009, the State filed its Witness and Exhibit list for the Potts trial. Respondent Starr filed the Defendant's Notice of Witnesses and Exhibits on July 15,...