In In re Demone Lee, the prosecutor was assigned to a child molestation case involving charges of oral and anal sodomy. A week prior to trial, the prosecutor interviewed the child, who denied that the accused had ever touched his butt, but the prosecutor did not disclose this information to the defense.
At trial, the prosecutor presented previously recorded testimony of the child where the child stated that the accused subjected him to both oral and anal sodomy. The child also testified at the trial about the alleged oral sodomy, but denied any other sexual contact. In closing, the prosecutor acknowledged the inconsistent statements and conceded that the defendant should be acquitted of the anal sodomy charge. The jury convicted the defendant on just the oral sodomy offense.
After the trial, the prosecutor spoke with a juror regarding his interview with the child the week prior. Defense counsel overheard this conversation and filed a motion for new trial based on a Brady violation. Under the U.S. Supreme Court’s decision in Brady v. Maryland, the State is required to disclose prior to trial any evidence that is either exculpatory or favorable to the defense. As a result, the State consented to the granting of a new trial.
The State Bar formally charged the prosecutor with violating the Georgia Code of Professional Conduct. While the Review Panel and special master recommended that the prosecutor receive a formal admonition, the State Bar pushed for a public reprimand.
The Georgia Supreme Court found that the evidence failed to show a clear-cut violation of Brady or the Georgia Rules of Professional Conduct. The Court noted that Brady did not always require pretrial disclosures. It held that in some cases, a prosecutor could satisfy his obligation by simply introducing the exculpatory evidence at trial.
Here, the Court found that the prosecutor elicited testimony from the child that was tantamount to a recantation of the alleged anal sodomy. The Court found this evidence more exculpatory than the child’s denial in his interview with the prosecutor. Further, defense counsel had an opportunity to cross-examine the child, and the prosecutor made no attempt to rehabilitate the child witness.
The Court further noted that the inconsistent statements were apparent to the jury, and the State Bar did not show prejudice to the defendant for the late disclosure. Acknowledging that the situation was peculiar, the Court declined to impose discipline because the State Bar did not show a clear-cut violation of the Code of Professional Conduct.