concurring in part and dissenting in part.
I agree with every part of the majority opinion except for the referral of the prosecutor’s conduct to the Professional Conduct Committee to “determine whether any disciplinary action is warranted” without an explanation as to why this is being done.
The prosecutor’s lapse in this case in not turning the second statement of Chad Green over to counsel for Billy Dale Green was very serious. For that reason, Billy Dale Green has Babeen awarded a new trial as the remedy for this Brady violation. Brady violations occur whether the prosecutor’s conduct in failing to disclose evidence is inadvertent or intentional. Newman v. State, 2009 Ark. 539, at 13, 354 S.W.3d 61, 69.
The prosecutor admitted that his failure to disclose was a Brady violation but then said “as an officer of the Court” that the failure was “a slip up” and “inadvertent” and was not intentional. The trial judge then found that he did not believe the prosecutor “hid the evidence.”
Later, a second prosecutor told the judge that when he read the second Chad Green statement, “it did not comport with his previous versions of the case” and was not helpful to the prosecution of Billy Dale Green. The prosecutor said once the proffer was made by Chad Green’s attorney, he “simply forgot about it” and “it went out of my mind.” The trial judge then repeated that Billy Dale Green’s motion to dismiss was denied.
Rule 3.8 of the Arkansas Rules of Professional Conduct provides as a special responsibility that prosecutors should make a timely disclosure to the defense of all evidence that tends to negate guilt. That encapsulates the Brady obligation. What is unclear about today’s opinion, however, is whether the majority is referring this matter to the Professional Conduct Committee for discipline due to an intentional hiding of evidence or because of an inadvertent failure to disclose, which equates more to negligence. The trial judge in the instant case, of course, found the prosecutor’s conduct was not an intentional hiding. And there is no suggestion in today’s decision that the judge’s finding was clearly erroneous. See, 1 Henderson v. State, 349 Ark. 701, 708, 80 S.W.3d 374, 378 (2002) (“A trial court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous.”).
Comment 1 to Rule 3.8 provides, in part: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense.
The ABA Standard of Criminal Justice Relating to the Prosecution Function 3-3.11 provides:
A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.
(Emphasis added.)
In analyzing Colorado Rule of Professional Conduct 3.8, which contains the same language as our Rule 3.8 and has the same commentary, the Colorado Supreme Court concluded that intentional conduct of the prosecutor was required:
Because we do not wish to interfere with the discretion of trial courts to handle discovery disputes in the way dictated by the facts of the case, and because we do not wish the possibility of a grievance proceeding to permeate every discovery dispute in criminal cases, we choose to read the rule itself as including the mens rea of intent.
In re Attorney C, 47 P.3d 1167, 1174 (Colo.2002).
The majority’s opinion opens the door to referrals to the Committee for disciplinary action even for unintentional mistakes made by prosecutors during investigations. If the 1^majority is referring the two prosecutors in this case to the Committee for negligence, will this court, henceforth, be referring all prosecutors involved in Brady violations to the Committee for discipline, even when the conduct equates only to negligence?
I dissent on this single point because it is an important one. Referring conduct to the Committee is a serious matter. The point needs to be clarified.
BAKER, J., joins this opinion.