Rape of a Minor, Probation and the "Computer Use" Probation Conditions

This post examines a very recent decision from the California Court of Appeals for the Fourth District:  In re C.G., 2016 WL 853547 (2016).  You may find the title of the case peculiar, in that it does not conform to the usual “State v. Doe” or United States v. Doe” model you usually see in criminal cases (and in the posts on this site).  The reason the title is different is that this is a juvenile case, i.e., it involves a minor who has come under the supervision of the California Division of Criminal Justice.  In re C.G., supra.

The Court of Appeals begins its opinion by explaining that

C.G. (the minor), who was then 11 years old, and his siblings committed sexual offenses against a seven-year-old neighbor. The juvenile court found the allegations against the minor to be true, and made him a ward of the court. The court imposed probation conditions on the minor. On appeal, the minor challenges a number of those probation conditions. 

In re C.G., supra.

The court then went on to outline the facts that led to this juvenile proceeding and the judicial proceedings below:

The minor, who was then 11 years old, lived in the garage of the home in which the seven-year-old victim lived. The minor's older brother thought the victim was annoying. On May 5, 2012, the minor and his two brothers restrained the victim and took him out of his bedroom to an enclosed outdoor shower, where the minor's older brother sodomized the victim. The minor's older brother told the victim they would kill him if he reported what had happened.

The minor's older brother told investigating officers that he had watched pornography sometime before the assault, and was thinking about that pornography while assaulting the victim. The minor's older brother pleaded guilty to charges that he had raped the victim, and served 330 days in juvenile hall. At the minor's adjudication hearing, his older brother denied committing the offense, and claimed he had been lying when he admitted guilt in his own proceedings.

A petition was filed pursuant to Welfare and Institutions Code section 602, alleging the minor had committed rape of a minor under age 14 (California Penal Code § 264.1(b)(1)); sodomy by force of a minor under age 14 (California Penal Code § 286 subd. (c)(2)(B)); forcible lewd act on a child under age 14 (CaliforniaPenal Code § 288 subd. (b)(1)); and assault of a minor with the intent to commit a sexual offense (California Penal Code § 220, subd. (a)(2)). 

After a contested adjudication and disposition hearing, the juvenile court found those counts true beyond a reasonable doubt. The court declared the minor to be a ward of the court, declared the maximum term of confinement to be 14 years, and placed the minor on probation with conditions. The minor filed a timely notice of appeal.

In re C.G., supra.

The Court of Appeals then outlined the “standard of review” it would apply in assessing the propriety of the lower court’s actions:

We review the probation conditions imposed by the juvenile court for abuse of discretion. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) A juvenile court `may impose and require any and all reasonable [probation] conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ (Welfare & Inst.Code, § 730, subd. (b).) A minor may raise for the first time on appeal a challenge to a probation condition based on vagueness, overbreadth, or violation of due process. (In re Sheena K. (2007) 40 Cal.4th 875, 885–887.)

In re C.G., supra.

The Court of Appeals then took up C.G.’s challenge to the

following probation conditions relating to his use of computers and the Internet: `Court will allow minor to have unsupervised computer use, however, probation may monitor minor's usage. [¶] Do not use a computer for any purposes other than school related assignments, and only in the common area of his residence or in a supervised school setting. [¶] Do not password protect any file or computer he uses. [¶] Do not participate in any chat rooms, email, engage in instant messaging, ICQ, or other similar communication programs. [¶] . . . [¶] Do not possess or access any modem or device allowing a computer to connect to another computer or network without permission of the probation officer. [¶] Do not have encrypted files, including any steganographic, or otherwise secured files.’

In re C.G., supra.

It explained that

`[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”  (People v. Lent (1975) 15 Cal. 3d 481, 486 fn. omitted.)

In re C.G., supra.

The Court of Appeals then summarized the initial part of C.G.’s argument on appeal:

The minor cites two cases in which restrictions on the defendants' access to the Internet were upheld because the probation conditions were related to the offenses and necessary to protect the public. In People v. Harrisson (2005) 134 Cal.App.4th 637, 639–640, the defendant pleaded no contest to possession of child pornography.

The probation condition completely banning his use of the Internet was upheld because he had used the Internet to send pornographic images and to solicit sex with a minor; had expressed a desire to seek revenge against the prosecutor; and had violated probation by reviewing pornography online while looking for a job. (Id. at pp. 646–647.)

In In re Hudson (2006) 143 Cal.App.4th 1, 4–5, 10–11, the defendant parolee was a convicted child molester who used the Internet to download instructions on what to do if accused of child molestation, and had encrypted his computer while on probation for a previous offense. The court upheld the probation condition prohibiting the defendant parolee from possessing or having access to computers, the Internet, or camera equipment without permission from his parole officer. (Id. at pp. 9–11)

In re C.G., supra.

Next, the court noted that

[t]he minor contends that because he did not use a computer or the Internet in committing the crimes against the victim, it is inappropriate to include probation conditions that restrict his use of computers and the Internet. The minor contends such conditions do not serve a rehabilitative purpose and are not necessary to protect the public. (In re Stevens, (2004) 119 Cal.App.4th 1228, 1234.)

In re C.G., supra.

But the Court of Appeals was not persuaded.  It explained that probation conditions

restricting computer use and Internet access are not reserved exclusively for those convicted of computer-related crimes, however. In In re Victor L.(2010) 182 Cal.App.4th 902, 926–927, the court upheld probation conditions that prohibited Victor from accessing any social networking site, and that required Victor's Internet access to be supervised. Victor had admitted violating Penal Code section 12020, subdivision (a), by possessing an illegal weapon. (In re Victor L., supra, at p. 908.) The court concluded the probation conditions were appropriate because `[t]hey limit Victor's access to the Internet in ways designed to minimize the temptation to contact his gang friends or to otherwise use the computer for illegal purposes by requiring adult supervision whenever he goes online.’ (Id. at p. 926.)

The probation conditions in the present case were reasonably related to the goal of rehabilitating the minor by preventing him from accessing sexual content on the Internet and engaging in acts of `cyberbullying,’ by ensuring that his only access to the Internet would be in situations where there would be adult supervision.

In re C.G., supra.

The court also addressed another argument C.G. included in his appeal:

The minor also argues that the probation conditions listed above are overbroad and must be modified to add a scienter requirement. We disagree. The probation conditions that the minor argues are most in need of a scienter requirement—that the minor not access a modem or connection device, not participate in e-mailing or messaging, not have encrypted files, and not password-protect computers or files—all involve intentional activity, and could not reasonably be inadvertently violated by the minor.

In re C.G., supra.

The Court of Appeals then took up C.G.’s argument with regard to the “probation conditions relating to `sexually explicit materials’ as vague and overbroad.” In re C.G., supra.  More precisely, C.G. challenged

the following probation conditions relating to sexually explicit materials as vague and overbroad: `Minor not to use or possess any sexually explicit material, including but not limited to, CDs, DVDs, video cassettes, magazines, pictures, letters, or drawing, which depict or describe any sexual act, or nudity. [¶] . . . [¶] Minor not to use, subscribe to, or download any sexually explicit content to a personal electronic device. [¶] . . . [¶] Do not possess any pornographic material, including computer files, and disks, nor frequent any area of pornographic activity. [¶] Do not access any adult sexually explicit web site. [¶] Do not frequent any establishment where sexually explicit movies, videos, materials, or devices are viewed or sold.’

In re C.G., supra.

The Court of Appeals explained that

[t]o survive a challenge on vagueness grounds, a probation condition must be precise enough to allow the probationer to determine what is required of him or her, and to allow the court to determine whether the condition has been violated. (In re Sheena K., supra, 40 Cal.4th at p. 890.) The minor contends that the probation conditions restricting possession of and access to sexually explicit and pornographic materials are vague because those terms are `imprecise and capable of various interpretations.’

In People v. Moses (2011) 199 Cal.App.4th 374, 377, another panel of this court concluded the phrase `”sexually explicit . . . devices” is not so imprecise that defendant will be unable to determine whether he is in compliance with the terms of his probation. [Citation.]’ Here, too, we conclude the terms `sexually explicit’ and `pornographic’ are sufficiently clear so as to permit the minor to determine whether he is complying with the terms of his probation.

The minor correctly argues, and the Attorney General concedes, that these probation conditions are overbroad due to the lack of a scienter requirement. We direct the trial court to modify its minute order and the minor's probation conditions to explicitly include a knowledge requirement.

In re C.G., supra.

The Court of Appeals therefore directed

the trial court to modify its minute order and the minor's probation conditions to add the phrase `you know or reasonably should know’ to each and every probation condition that refers to sexually explicit or pornographic materials, activities, or Web sites. In all other respects, the order is affirmed.

In re C.G., supra. 

The Probationer, the Warrantless Search of the Cell Phone and the 4th Amendment

This post examines an opinion from the U.S. Court of Appeals for the 9th Circuit:  U.S. v. Lara, 2016 WL 828100 (2015).  The Court of Appeals is reviewing a U.S. District Court Judge’s denial of Lara’s motion to suppress certain evidence. U.S. v. Lara, supra.

The court begins by explaining that

Paulo Lara appeals his conviction for being a felon in possession of a firearm and ammunition in violation of 18 U.S. Code § 922(g)(1). At the time of his arrest, Lara was subject to a term of probation that required him to submit his `person and property, including any residence, premises, container or vehicle’ to search and seizure `without a warrant, probable cause, or reasonable suspicion.’ Lara contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated when probation officers conducted two warrantless, suspicionless searches of his cell phone. He contends that the exclusionary rule requires the suppression of images, text messages, and GPS data found on his cell phone, as well as a gun and ammunition, as fruits of the illegal searches. We agree.

U.S. v. Lara, supra.

The Court of Appeals began its analysis of Lara’s argument by explaining the circumstances of the search and seizure at issue in the case:

On October 2, 2013, Probation Officers Jennifer Fix and Joseph Ortiz arrived unannounced at Lara's home after he had failed to report to Officer Fix. Lara had recently been placed on probation following a conviction for possession for sale and transportation of methamphetamine in violation of California Health & Safety Code §§ 11378 and 11379(a).

Lara's probation agreement required him to `submit [his] person and property, including any residence, premises, container or vehicle under [his] control, to search and seizure at any time of the day or night by any law enforcement officer, probation officer, or mandatory supervision officer, with or without a warrant, probable cause, or reasonable suspicion.’ As part of his probation agreement, Lara initialed a subsection entitled “Fourth Amendment waiver.” That subsection provided:

`I understand under the Fourth and Fourteenth Amendments to the United States Constitution, I have a right to be free from unreasonable searches and seizures. I waive and give up this right, and further agree that for the period during which I am on probation or mandatory supervision I will submit my person and property, including any residence, premises, container or vehicle under my control to search and seizure at any time of the day or night by any law enforcement officer, probation officer, post-release community supervision officer, or parole officer, with or without a warrant, probable cause, or reasonable suspicion.’

U.S. v. Lara, supra.  The opinion goes on to explain that

Officer Fix stated in a sworn declaration, consistent with her later in-court testimony, that at her first meeting with Lara she read him the search and seizure term and asked whether he had any questions `concerning that term and what it entails.’ She stated that is her normal practice to note if a probationer has any questions about the terms, and she had nothing in her notes indicating that Lara had any such questions. Lara stated in a sworn declaration that when he accepted the terms and conditions of probation, he did not believe the search condition would allow his cell phone or data stored on the phone to be searched without his consent.

Officer Fix stated in her declaration, `It is standard protocol for probation officers to search the cell phones of probationers subject to search terms, especially if the probationer had been convicted of a drug trafficking offense.’ Officer Fix stated that she knew Lara had been convicted of a drug offense when she conducted the search. She stated that she and Officer Ortiz knew, based on their training and experience, that `drug traffickers commonly use cell phones to arrange narcotics sales.’

U.S. v. Lara, supra.  The opinion then outlines what happened with regard to Lara’s cell phone:

After announcing that they were at the house to conduct a probation search, Officer Fix ordered Lara to sit on the couch. Officer Ortiz stated in a sworn declaration that he spotted a cell phone on a table next to the couch and examined it. He stated that he confirmed that the phone belonged to Lara. Cell phone company records showed that the name of the subscriber was `Peter’ Lara, rather than `Paulo’ Lara. The address listed on the subscriber record matched Lara's home address where he was found and where the search was conducted.

Officer Ortiz stated that he did not ask Lara's permission to search the cell phone, but that Lara did not object to his doing so. Officer Fix testified that it is the department's policy to search a cell phone when officers visit a probationer, even if the probationer objects.

Officer Ortiz stated in his declaration that he reviewed the most recently sent text messages on Lara's cell phone and discovered messages containing three photographs of a semiautomatic handgun lying on a bed. The pictures had been sent to `Al,’ who responded, asking if the gun was `clean.’ Lara replied, `yup.’ Al followed up by asking, `What is the lowest you will take for it?’ and `How much?’

Officer Ortiz handcuffed Lara, and he and Officer Fix searched Lara's house and car for the gun. They did not find it, but they did find a folding knife, the possession of which violated the terms of Lara's probation. Officers Fix and Ortiz arrested Lara for possessing the knife in violation of his probation and brought the cell phone to the Orange County Regional Computer Forensics Lab.

Lab personnel found GPS data embedded in the photographs of the gun and thereby determined the address where they were taken. Investigation revealed the location to be the home of Lara's mother. Officer Fix testified at the suppression hearing that without the GPS data, she would not have had reason to visit Lara's mother's house.

Officers Fix and Ortiz, along with officers from the local police department, went to Lara's mother's home and showed her the photographs of the gun. She directed them to a bedroom that had bedding matching that in the photographs. In the closet of the bedroom, Officer Fix found a loaded handgun that resembled the gun depicted in the photographs.

U.S. v. Lara, supra. 

The Court of Appeals concludes the prefatory section of its opinion by explaining that

Lara was charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S. Code § 922(g)(1). He moved to suppress the gun and ammunition on the ground that it had been found as a result of illegal searches of his cell phone by Officer Ortiz and the lab.

The [U.S. District Court Judge] held a hearing on the suppression motion and denied the motion. When the district court ruled on Lara's suppression motion, the Supreme Court had not yet decided Riley v. California,134 S.Ct. 2473  (2014). In Riley, the Court held that police generally may not, without a warrant, examine the digital information stored on a cell phone seized incident to arrest. Riley v. California, supra.

After the district judge denied Lara's suppression motion, Lara pled guilty to the § 922(g)(1) charge, but preserved his right to challenge the denial of his motion. Lara timely appealed.

U.S. v. Lara, supra. 

The Court of Appeals began its analysis of Lara’s argument on appeal by explaining that

[t]he government contends that there are three independent reasons to affirm the district court's denial of Lara's motion to suppress. First, the government contends that Lara consented to the initial cell phone data search by accepting the terms of his probation agreement, thereby waiving his Fourth Amendment protection against unreasonable searches and seizures. Second, the government contends that, even if Lara did not waive his Fourth Amendment rights, the warrantless search was lawful because it was reasonable. Third, the government contends that even if the cell phone search was unlawful, the evidence it yielded should not be suppressed because a good faith exception to the exclusionary rule applies. 

U.S. v. Lara, supra. 

The Court of Appeals then went through the government’s three arguments, beginning with the issue of waiver of Lara’s 4^th Amendment rights. It began by noting that

[w]e have already held that a probationer's acceptance of a search term in a probation agreement does not by itself render lawful an otherwise unconstitutional search of a probationer's person or property. In U.S. v. Consuelo–Gonzalez, 521 F.2d 259 (1975) (en banc), we held that probationers do not entirely waive their Fourth Amendment rights by agreeing, as a condition of their probation, to `submit [their] person and property to search at any time upon request by a law enforcement officer.’ We explained that there is a limit on the price the government may exact in return for granting probation. U.S. v. Consuelo–Gonzalez, supra.  Specifically, `any search made pursuant to the condition included in the terms of probation must necessarily meet the Fourth Amendment's standard of reasonableness.’ U.S. v. Consuelo–Gonzalez, supra; see U.S. v. Scott,450 F.3d 863 (U.S. Court of Appeals for the 9th Circuit 2006) (confirming this reading of Consuelo–Gonzalez 's holding).

The issue, therefore, is not solely whether Lara accepted the cell phone search as a condition of his probation, but whether the search that he accepted was reasonable. Lara's acceptance of the terms of probation, including suspicionless searches of his person and property, is one factor that bears on the reasonableness of the search, but it is not in itself dispositive. See U.S. v. Scott, 450 F.3d 863 (U.S. Court of Appeals for the 9^th Circuit 2006) (suggesting a defendant's agreement to a search condition in exchange for relief from prison is `a relevant factor in determining how strong his expectation of privacy is’); accord U.S. v. Knights, 534 U.S. 112 (2001) (declining to decide whether a probationer's acceptance of a probation term authorizing warrantless searches without probable cause constituted consent sufficient to waive his Fourth Amendment rights, and opting instead to evaluate whether the search was reasonable in light of the totality of the circumstances, including the probationer's acceptance of the search condition).

U.S. v. Lara, supra. 

The Court of Appeals then took up the issue of the “reasonableness of the search.”  U.S. v. Lara, supra.  It began by explaining that

[a]t the outset, we reject the government's suggestion that our decision in United States v. King, 736 F.3d 805 (2013), fully resolves this issue. In King, the police conducted a suspicionless search of a violent felon's residence, pursuant to a condition of probation that clearly authorized such a search. We upheld the search but `h[e]ld only that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment.’ U.S. v. King, supra. We expressly limited our holding to violent felons, writing, `We need not decide whether the Fourth Amendment permits suspicionless searches of probationers who have not accepted a suspicionless-search condition, or of lower level offenders who have accepted a suspicionless-search condition, because those cases are not before us.’ U.S. v. King, supra (emphasis added). King had been convicted of the violent crime of willfully inflicting corporal injury on a cohabitant. U.S. v. King, supra. Lara, in contrast, had been convicted of a nonviolent drug crime.

Because King does not fully provide the answer, we must, as we did in King, evaluate the circumstances of the particular case before us to determine if the search was reasonable. In doing so, we balance, “on the one hand, the degree to which [the search] intrudes upon an individual's privacy and, on the other, the degree to which [the search] is needed for the promotion of legitimate governmental interests.” U.S. v. Knights, supra (quoting Wyoming v. Houghton, 526 U.S. 295 (1999)). We consider each side of the balance in turn.

U.S. v. Lara, supra. 

The court began with “Lara’s privacy interest”, e.g., the “extent to which the search intruded on Lara's privacy depends on several factors, the most important of which are his status as a probationer, the clarity of the conditions of probation, and the nature of the contents of a cell phone.” U.S. v. Lara, supra.  After considering various factors, and the government’s argument to the contrary, the Court of Appeals concluded that

Lara had a privacy interest in his cell phone and the data it contained. That privacy interest was substantial in light of the broad amount of data contained in, or accessible through, his cell phone. We recognize that his privacy interest was somewhat diminished in light of Lara's status as a probationer. But it was not diminished or waived because he accepted as a condition of his probation a clear and unequivocal search provision authorizing cell phone searches (he did not) or because he subscribed to cell phone service using a different first name (he did).

U.S. v. Lara, supra.  The court went on to find that

[g]iven the ubiquity of cell phones, almost any crime involving more than a single person (and indeed many crimes involving just one person) would entail the use of cell phones, which can be used not only for placing calls and sending text messages, but also for sending emails, looking up directions, and conducting internet searches on various topics. This ubiquity cuts against the government's purported heightened interest in conducting suspicionless searches of the cell phones of probationers with controlled substances convictions.

U.S. v. Lara, supra.  It therefore held that “[b]ecause of his status as a probationer, Lara's privacy interest was somewhat diminished, but that interest was nonetheless sufficiently substantial to protect him from the two cell phone searches at issue here.” U.S. v. Lara, supra. 

Finally, the Court of Appeals noted that

[a]t the end of its fifty-five page brief to this court, the government spends two-and-a-half pages arguing that even if the two searches of Lara's cell phone violated the Fourth Amendment, a good faith exception to the exclusionary rule should apply. The government did not make this argument in the district court, and consequently it has failed to preserve this argument on appeal. Even if we were willing to assume that the government did not waive this argument, we would reject it on the merits.

U.S. v. Lara, supra. 

It therefore held that

the initial search of Lara's cell phone data was unlawful and that the exclusionary rule bars the admission of the evidence that was the fruit of that unlawful search. Because the second search of Lara's cell phone was itself the product of the initial unlawful search, the evidence from that search should also have been excluded. We therefore reverse the district court's denial of Lara's motion to suppress and remand for further proceedings consistent with this opinion.

U.S. v. Lara, supra.  

The Prosecutor, the Fictitious Facebook Account and the Alibi Witness

This post examines an opinion recently issued by the Supreme Court of Ohio in a “[l]awyer disciplinary proceeding.”  Disciplinary Counsel v. Brockler, 2016 WL 744412 (2016). If you are interested, you can read more about the rules of professional conduct that govern lawyers in the state of Ohio and the process of filing a complaint against a lawyer (or a judge) here.  And you can read more about the Ohio Office of Disciplinary Counsel here.

Getting back to the case at hand, the opinion this post examines was issued by the Ohio Supreme Court on February 25 of this year. Disciplinary Counsel v. Brockler, supra. The court issued the opinion in the disciplinary proceeding that was instituted against “Aaron James Brockler of Lakewood, Ohio”.  Disciplinary Counsel v. Brockler, supra. The opinion begins by outlining how, and why, that proceeding was instituted:

Respondent, Aaron James Brockler of Lakewood, Ohio, Attorney Registration No. 0078205, was admitted to the practice of law in Ohio in 2004. In an April 7, 2014 complaint, relator, disciplinary counsel, charged Brockler with engaging in professional misconduct while he served as the assistant Cuyahoga County prosecutor assigned to a murder case. 

Specifically, relator alleged that while investigating the shooting death of Kenneth `Blue’ Adams, Brockler created a fictitious Facebook account and used it to contact the alibi witnesses of Damon Dunn, who had been indicted for the murder.

The parties entered into stipulations of fact and submitted 15 stipulated exhibits. After a two-day hearing, a panel of the Board of Professional Conduct issued a report finding that Brockler's use of the fictitious Facebook account to contact the alibi witnesses involved dishonesty, fraud, deceit, or misrepresentation, and that it prejudiced the administration of justice. It recommended, however, that we dismiss an alleged violation arising from certain statements that Brockler made to the media.

Disciplinary Counsel v. Brockler, supra.

The Supreme Court’s opinion goes on to explain that

[b]efore he was indicted, Dunn denied any involvement in Adams's death and told Cleveland police that at the time of the murder, he was with his girlfriend, Sarah Mossor, and her friend Marquita Lewis. Brockler did not believe Dunn's alibi was true, but Mossor and Lewis refused to talk with him on numerous occasions when he identified himself as the assistant prosecutor assigned to the case.

As part of his investigation, Brockler listened to recordings of telephone calls Dunn had made from the Cuyahoga County Jail. On the morning of December 14, 2012, he listened to a recording of a heated conversation in which Dunn and Mossor argued over Dunn's fear that Mossor would not be a reliable witness and Mossor's belief that Dunn had not been faithful to her. Mossor suspected Dunn had had a romantic relationship with a woman named `Taisha’ and indicated that if her suspicion was true, she would end her relationship with Dunn. Believing Mossor's relationship with Dunn was near a breaking point, Brockler saw an opportunity to exploit her feelings of distrust and get her to recant her support for Dunn.

Disciplinary Counsel v. Brockler, supra.

The court’s opinion goes on to explain that,

[r]ecalling a Facebook ruse he had used in a prior case, Brockler planned to create a fictitious Facebook identity to contact Mossor. He attempted to obtain assistance from several Cleveland police detectives and the chief investigator in the prosecutor's office, but they were not available. Believing time was of the essence, Brockler decided to proceed with the Facebook ruse on his own approximately one hour after he heard the recording of Mossor and Dunn's conversation. He created a Facebook account using the pseudonym `Taisha Little,’ a photograph of an African–American female he downloaded from the Internet, and information he gleaned from Dunn's jailhouse telephone calls. He also added pictures, group affiliations, and `friends’ he selected based on Dunn's telephone calls and Facebook page.

Posing as Little, Brockler simultaneously contacted Mossor and Lewis in separate Facebook chats. He falsely represented that Little had been involved with Dunn, that she had an 18–month–old child with him, and that she needed him to be released from jail so that he could provide child support. He also discussed Dunn's alibi as though it were false in an attempt to get Mossor and Lewis to admit that they were lying for Dunn (or would lie for him in the future) and to convince them to speak with the prosecutor.

After chatting for several hours, Brockler sensed that Mossor and Lewis were suspicious, so he shut down the chat and deleted the fictitious account. He testified that he printed copies of the chats and placed them in a file—with the intent to provide copies to defense counsel—before he deleted the account, but those copies were never found. He attended five pretrial conferences from January through April 2013 but did not disclose the circumstances or content of his conversations with Mossor or Lewis.

Disciplinary Counsel v. Brockler, supra. You can, if you are interested, read more about Brockler’s tactic in the news stories you can find here, here and here.

Getting back to the Supreme Court’s opinion, it goes on to explain that Brockler was

scheduled to take an extended medical leave beginning April 16, 2013, and assistant prosecutor Kevin Filiatraut was assigned to handle the Dunn case in his absence. Brockler gave his file to Filiatraut, reviewed the case with him, and attended a pretrial conference with him. Brockler also disclosed that he might need to be a witness at trial because both Mossor and Lewis had told him they would not support Dunn's alibi, although they were afraid to say so in court. Brockler did not disclose how he obtained that information.

Disciplinary Counsel v. Brockler, supra (emphasis in the original).

The opinion then goes on to explain what happened next:

On the second day of Brockler's leave and less than one week before Dunn's trial, a police detective gave Filiatraut several documents, including a transcript of Lewis's chat with `Taisha Little’ (obtained from Lewis) and Lewis's written statement about the chat. Filiatraut immediately made the documents available to defense counsel and began to investigate Little.

Although Filiatraut quickly informed Brockler about this new information, Brockler waited nearly three weeks to disclose that he was `Taisha Little.’ Upon learning of Brockler's ruse, Filiatraut reported this information to his superiors. The prosecutor's office withdrew from the case and the court appointed the attorney general to serve as a special prosecutor. Shortly after Brockler returned from his medical leave in June 2013, his employment was terminated.

Soon thereafter, Brockler spoke with reporters from the Cleveland Plain Dealer and a local television affiliate in response to Cuyahoga County Prosecuting Attorney Timothy McGinty's statements that Brockler was fired for his unethical conduct in creating false evidence, lying to witnesses and another prosecutor, and damaging the prosecution's chances in a murder case in which an innocent man was killed at work.

The subsequently published article and broadcasted interview included statements by Brockler—which he does not dispute—to the effect that (1) prosecutors have long engaged in ruses to obtain the truth, (2) his firing was an overreaction because he only did what the police should have done, (3) he engaged in an investigative ruse to uncover the truth and keep a murderer behind bars, (4) the public was better off because of his actions, (5) if he had not taken these actions, a murderer might be walking the streets, (6) he promised the victim's mother that he would not let a horrible killer walk out of the courthouse to kill someone else, and (7) McGinty chose to follow the technical rules of ethics, while he chose to protect the public.

Disciplinary Counsel v. Brockler, supra.  The opinion also notes that “[a]pproximately one year after Brockler's termination, Dunn was convicted of aggravated murder, murder, felonious assault, and having weapons while under disability.”  Disciplinary Counsel v. Brockler, supra. 

The Supreme Court’s opinion then returns to the legal ethics issue, noting that

Brockler admitted that the Facebook ruse violated the plain language of [Ohio Professional Conduct Rule] 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), but he urged the board to carve out an exception for `prosecutorial investigation deception.’

Noting that a comment to Professional Conduct Rule 8.4 already recognizes an exception for lawyers who supervise or advise nonlawyers about lawful covert investigative activities, and that this court has found in two cases that lawyers in private practice violated the analogous provisions of DR 1–102(A)(4) by personally engaging in investigatory deceptions, the board refused to carve out a broader exception to the rule. See Professional Conduct Rule 8.4, Comment 2A; Columbus Bar Assn. v. King, 84 Ohio St.3d 174, 702 N.E.2d 862 (1998) (finding that two attorneys engaged in dishonest conduct by conspiring for one of them to place a phone call while posing as someone else in order to generate evidence in furtherance of a client's case); Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 800 N.E.2d 1117, ¶ 17 (finding that an attorney engaged in dishonesty, fraud, deceit, or misrepresentation when she intimidated a deposition witness by creating the false impression that she possessed compromising personal information that could be offered as evidence).

Instead, the board found that Professional Conduct Rule 8.4(c) requires an assistant prosecutor to refrain from dishonesty, fraud, deceit, or misrepresentation when personally engaging in investigatory activity and that Brockler's Facebook ruse therefore violated the rule.

Disciplinary Counsel v. Brockler, supra. 

(You can, if you are interested, find the Ohio Rules of Professional Conduct, which are the rules that govern ethical lawyer conduct and that define improper conduct, here.)

The Supreme Court then took up the issue of the sanction(s) that should be imposed on Brockler for his violation of Rule 8.4(c).  Disciplinary Counsel v. Brockler, supra.  It began that analysis by explaining that

[w]hen imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties that the lawyer violated and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in Gov.Bar R. V(13).

As an aggravating factor, the board found that Brockler's deceptions and misrepresentations in his contacts with Mossor and Lewis resulted in multiple violations of Prof.Cond.R. 8.4(c) and (d), though it treated them as a single instance of misconduct. See Gov.BarR. V(13)(B)(4). The board also found that his extrajudicial statements to the media, deflecting blame for his own misconduct to the police department and the prosecutor's office, undermined the public's confidence in the criminal-justice process. See Gov.Bar R. V(13)(A) (requiring the board to consider all relevant factors in determining the appropriate sanction for a lawyer's misconduct).

In mitigation, the board found Brockler did not have a prior disciplinary record, made a full and free disclosure and cooperated in the disciplinary process, submitted numerous letters attesting to his good character and reputation for honesty, and acknowledged that the loss of his “dream job” was a form of penalty. See Gov.Bar R.V(13)(C)(1), (4), (5), (6). Although Brockler's use of deception violated core ethical values, the board also found he was not motivated by self-interest, because he honestly—albeit erroneously—believed that his covert use of Facebook was an effective and acceptable tactic akin to more traditional investigative tactics such as staged drug buys and the use of undercover informants. See Gov.BarR. V(13)(C)(2).

Disciplinary Counsel v. Brockler, supra. 

The Supreme Court went on to explain that

[d]espite advocating for a public-policy exception for deceptive prosecutorial investigation tactics, Brockler admitted that his conduct violated the plain language of Prof.Cond.R. 8.4(c) and argued for no more than a stayed six-month suspension. Relator, in contrast, argued that Brockler should serve an actual suspension from the practice of law, though he did not suggest any specific duration.

The board acknowledged that misconduct involving dishonesty, fraud, deceit, or misrepresentation generally warrants an actual suspension from the practice of law. See, e.g., Disciplinary Counsel v. Karris, 129 Ohio St.3d 499, 954 N.E.2d 118, ¶ 16; Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus.

But the board also recognized that we may deviate from that rule in the presence of significant mitigating evidence. See Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 930 N.E.2d 307 (absence of a prior disciplinary record, efforts to rectify the consequences of the misconduct, full cooperation in the investigation, self-reporting, and evidence of good character and reputation apart from the charged misconduct sufficient to stay 12–month suspension for violating fiduciary duty as the executor of an estate); Disciplinary Counsel v. Niermeyer, 119 Ohio St.3d 99, 892 N.E.2d 434 (absence of prior misconduct, self-reporting, cooperation in the disciplinary process, acceptance of responsibility for misconduct, and evidence of good character and reputation sufficient to stay 12–month suspension for altering a document to make it appear that it had been timely filed). See also King, 84 Ohio St.3d 174, 702 N.E.2d 862 (imposing a fully stayed one-year suspension based upon the presence of significant mitigating evidence); Statzer, 101 Ohio St.3d 14, 800 N.E.2d 1117(imposing a fully stayed six-month suspension based upon the presence of significant mitigating evidence).

Disciplinary Counsel v. Brockler, supra. 

The court then outlined the sanction to be imposed on Brockler:

Noting the substantial mitigating factors present in this case—including the board's finding that the misconduct was an isolated incident in an otherwise notable legal career—the board recommends that we suspend Brockler for one year, fully stayed on the conditions that he engage in no further misconduct and that he pay the costs of this action.

Having determined that the board's findings of fact and conclusions of law are supported by the record and the law, we adopt the board's report, find that Brockler's use of a deceptive investigative technique to contact Dunn's alibi witnesses violated Prof.Cond.R. 8.4(c) and (d), and dismiss the alleged violation of Prof.Cond.R. 3.6(a). We also find that a one-year suspension, fully stayed on the conditions recommended by the board, is the appropriate sanction for Brockler's misconduct.

Accordingly, Aaron James Brockler is suspended from the practice of law in Ohio for one year, fully stayed on the conditions that he engage in no further misconduct and pay the costs of this proceeding. If he fails to comply with the conditions of the stay, the stay will be lifted, and he shall serve the full one-year suspension. Costs are taxed to Brockler.

Disciplinary Counsel v. Brockler, supra.