A bit of good news on the accountability front emerged late last month out of Indiana. The Indiana Supreme Court Disciplinary Commission recently handed down an order suspending former Porter County deputy prosecutor Trista Hudson from the state bar following allegations that she withheld key exculpatory evidence in the trial of a man accused of child molestation. The former prosecutor’s suspension is the culmination of a story that has features both all-too-common and all-too-rare.
The common features of the prosecutor’s misconduct will not surprise regular readers. In the course of the State’s major child molestation prosecution, Hudson interviewed one of the child accusers just days before the trial. At that interview, the child explained that the accusation that served as the basis for one of the criminal counts against the defendant was a lie. The child’s biological father encouraged the child to tell this lie against the defendant, the child’s step-father. Remarkably, Hudson went forward with the prosecution without notifying the defense or the judge, and without dropping the relevant charge. According to the Disciplinary Commission’s opinion, the truth came out when defense counsel questioned the child and other witnesses.
Here is where the story begins to depart from the normal course, the one in which unethical prosecutors face no consequences for their actions. After it became clear the prosecution withheld critical exculpatory evidence from the defense, the trial court acquitted the defendant on all counts. Within a few weeks, Porter County Prosecutor Brian Gensel fired Hudson, noting that prosecutors are held to a higher standard than other lawyers. The consequences continue to flow; nearly two years after losing her job in the prosecutor’s office, the disciplinary commission suspended her from the bar for 18 months, without automatic reinstatement.
Hudson’s behavior is also noticeably different than most prosecutors who were caught in the act of committing misconduct. Rather than sneering at proponents of accountability or shifting the blame, she took some measure of responsibility for her actions. During the commission’s investigation, she admitted that her ethical missteps were “ridiculous.” And, after being suspended, she—unlike some high-profile prosecutors—actually expressed regret and remorse: “I am disappointed in myself and deeply sorrowful that my conduct in this matter fell short of my high ideals. I did not act maliciously but failed to recognize an important issue,” she said. “I look forward to the day in the future when I am able to resume my profession as an Indiana lawyer.”
Still, some of the arguments Hudson made in her defense in front of the commission are head-scratchers, at the least. For example, she claimed that the child witness’s recantation did not need to be disclosed to the defense lawyer because it was impeachment evidence, and impeachment evidence is not covered by Rule 3.8(d). As the commission found, Hudson not only misunderstands impeachment, but she also misunderstands the basic ethical rule. Impeachment evidence certainly must be disclosed under 3.8(d). Yet, more importantly, evidence that the accuser was encouraged to lie by the biological father is not just impeachment evidence. It does not simply call into question the witness’s credibility—it literally demonstrates that the specific proposition to which the witness testified is false. Hudson’s seeming inability to understand that basic premise is cause for concern.
While the thrust of this story is largely positive in terms of misconduct being treated seriously, the commission’s opinion reveals that the system has not been saved. In a not-very-self-aware moment, the body wrote: “Quite thankfully, we have not previously had occasion to consider the question of an appropriate sanction for a Rule 3.8(a) or Rule 3.8(d) violation.” It appears the commission has been oblivious to the country’s epidemic of prosecutorial misconduct. At The Open File, we do not purport to collect every story of this kind of wrongdoing, but over the years we have gathered multiple reports of Rule 3.8(d) issues in Indiana. If the commission needs help identifying these cases, it can start here and here.