Summary: Separate disciplinary hearings were held by the Oklahoma Bar Association against Farley Ward and Rex Earl Starr pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP). Both hearings related to the actions of Ward as prosecutor and Starr as defense attorney during the 2009 murder trial of Clinton Potts. Potts was convicted of murder. On appeal of the conviction, an evidentiary hearing was held before the Oklahoma Court of Criminal Appeals where Potts alleged that Starr had ineffectively assisted him as legal counsel and Ward had wrongfully withheld information regarding a witness at the trial. Neither Starr nor Ward testified or presented evidence at that hearing, with Ward being wrongfully released from his subpoena and Starr remaining available for testimony but never being called. The Oklahoma Court of Criminal Appeals overturned Potts conviction based upon prosecutor Ward’s alleged suppression of favorable evidence and defense attorney Starr’s alleged failure to provide effective legal counsel.
Legal Issues:
Prosecutor’s duty to disclose: Prosecutors hold a special role in the justice system. Prosecutors have unique control over the evidence and witnesses produced as a result of a police investigation. They are required to timely disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or which mitigates the offense. (ORPC 3.8(d)). The OBA alleged that Ward withheld information regarding a witness which, if presented at trial, could have had a material impact on the outcome. The Court found that there was not clear and convincing evidence that Ward knew the information, nor that he could have learned about it by further investigation. As such, the charges against Ward were dismissed.
Defense attorney’s duties of competence and diligence: Every attorney is required to act with competence and diligence in the representation of his client (ORPC 1.1, 1.3). The charges against Starr result from his failure to call seven witnesses which Pott’s appellate attorneys alleged he should have and his failure to interview the more-than seventy state witnesses prior to trial. The Court ruled that there was no evidence in the record to support a finding that Starr acted incompetently or with a lack of diligence. Starr reviewed the police records of their interviews with each of the state’s witnesses and elected to not call the other witnesses as a matter of considered trial strategy. The Court noted that while Starr may not have defended his client in the same way that the appellate attorneys or other attorneys might have, this was not of itself evidence of a failure on Starr’s part.
Starr’s Affidavit: The appellate attorneys interviewed Starr and drafted an affidavit for Starr’s signature based on that interview. Starr signed the affidavit with only a cursory review of the document. The affidavit, while truthful in all of its particulars, had been drafted in such a way as to suggest that Starr’s representation of Pott had been less-than-sufficient. The OBA argued that Starr’s signature of the affidavit amounted to committing a fraud on the court. The PRT ruled that while the affidavit was not fraudulent, Starr was negligent in his signature of the affidavit and should be censured as a result. The Court concurred that Starr was negligent but declined to censure him.
Discussion: The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma. This is accomplished through the Oklahoma Bar Association and its enforcement of the Oklahoma Rules for Professional Conduct for Attorneys ("ORPC"). If an attorney is alleged to have violated the ORPC, the Oklahoma Bar Association investigates as outlined in the Rules Governing Disciplinary Proceedings ("RGDP").
Because the change of status, or challenge to the status, of an attorney from 'good standing' is of public significance, all attorney licensure matters are published, regardless of whether a novel legal question is involved.
The Court declined from adopting a more strenuous level of discovery requirement for prosecutors as urged by a formal opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility and recently adopted by North Dakota. As such, the Court delegates discovery issues in criminal matters to the competence of the trial courts and the appellate criminal courts. The Court ruled that its role in criminal discovery is limited to those "cases in which conduct occurs that reflects upon the character of the prosecutor: conduct that cannot be fully addressed by orders relating to the underlying case." This would imply that a showing must be had that the prosecutor’s actions stemmed from some flaw in that prosecutor’s character, and not merely an ordinary lapse of diligence.
The Court repeatedly noted Mr. Starr’s forty years of experience as an attorney without prior discipline from the Court. One can but wonder if an attorney of lesser stature would receive similar treatment.
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