An Oklahoma prosecutor has been suspended from practicing law for 180 days and ordered to pay nearly $13,000 in court costs. But two Oklahoma Supreme Court judges feel that he should have been disbarred.
Robert Bradley Miller of Oklahoma County was the lead prosecutor in a case involving the drive-by shooting of a 14 year-old girl in 1993. The two men arrested for the crime were Paris Powell and Yancy Douglas. They were later convicted of first-degree murder in two separate trials and spent 20 years on death row until a federal judge overturned their convictions in 2006 on account of prosecutorial misconduct.
The Oklahoma Bar Association subsequently charged Miller with five counts of professional misconduct. The Oklahoma Supreme Court opinion recounts those charges as involving: dishonesty, fraud, unfairness, lack of candor toward the tribunal, a violation of special responsibilities as a prosecutor and the Rules of Professional Conduct, improperly dealing with unrepresented persons, lack of respect of rights for third parties, improper influence of an official, and a lawyer acting as an advocate in a trial and engaging in conduct prejudicial to the administration of justice.
Indeed, 3 pages of the Court’s opinion are taken up by footnotes articulating the specific Rules of Professional Conduct that the Bar Association accused Miller of transgressing.
In its ruling, the Court found that Miller engaged in the following misconduct:
- He used fake subpoenas and arrest warrants to require witnesses to meet and cooperate with him;
- He failed to timely disclose evidence of an interview with an eyewitness, whose testimony could have been used as exculpatory or impeachment evidence against the State’s key witness;
- He attempted to assist the State’s key witness with his pending criminal charges following the murder trials, suggesting there may have been a deal between them; whether or not there was, he the Court found he had a duty to disclose his attempts to aid the witness.
At the time that Miller engaged in the above misconduct, the Oklahoma County District Attorney’s office supposedly had an “open file” policy.
A trial panel of the Bar recommended Miller be suspended for one year and pay the entire cost of proceedings following a three week evidentiary hearing in 2012.
However, considering “comparative disciplinary matters, the time span of the conduct in relation to the disciplinary proceeding, the respondent’s cooperation” and “lack of prior discipline,” the Court only suspended Miller’s license for 180 days and ordered him to pay about one-sixth of the amount recommended by the Bar Association. In its opinion, the Court noted that the function of disciplinary proceedings is not punishment. The purpose of discipline is to gauge a lawyer’s continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and the legal profession.
However, Justice Steven Taylor, joined by Justice Jospeh Watt, dissented from the majority, writing:Whether it was ‘decades ago’ or today, no attorney should ever commit he ‘reprehensible’ conduct in death penalty (or any other) litigation as detailed in the majority opinion and trial panel report. The actions of the respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice.
The Associated Press notes that Miller was an assistant district attorney “under the late Bob Macy, a law-and-order prosecutor known for his aggressive pursuit of the death penalty who won 54 death sentences during his 21-year career.”
The current District Attorney of Oklahoma County has declined to retry Powell and Douglas, citing the unreliability of the witnesses to the crime.