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Long-time readers of The Open File have often heard us lament that, despite Justice Thomas’s insistence that state bars are the proper avenue for dealing with prosecutorial misconduct, bar complaints are rarely filed against prosecutors and even more rarely lead to meaningful findings and punishment of misconduct.

Which makes a recent story out of Santa Fe, New Mexico, all the more intriguing. The Santa Fe District Attorney’s Office has filed an ethics complaint against one of its own – former prosecutor-turned-judge Jason Lidyard, for failing to disclose exculpatory information in a second-degree murder trial.

From the Albuquerque Journal:

Calandro, 36, was charged for killing Rustin Radcliffe in a downtown Santa Fe city parking lot in December 2016. On Monday, Calandro pleaded no contest to one charge of involuntary manslaughter for shooting Radcliffe… [and] was sentenced to four years in prison…

Lidyard was assigned to be the prosecutor in the case in February 2017 and was appointed as a judge by former Gov. Susana Martinez in March 2018. Assistant District Attorney Blake Nichols was later assigned to prosecute the case in August 2018.

In October 2018, Nichols received a box with documents associated with the Radcliffe murder case. Inside was a packet of documents with a post-it note saying “DO NOT DISCLOSE.” The packet had a report from the Santa Fe Police Department where Radcliffe allegedly beat a man so badly that he needed to be hospitalized. “Clearly exculpatory in nature, ADA Nichols immediately contacted defense counsel, Thomas M. Clark, who confirmed he did not have this packet,” Padgett Macias wrote.

In May, while preparing for trial, Nichols and a couple [of] summer interns checked to make sure all the information in the box had been disclosed, the complaint states. They found more police reports where Radcliffe was the suspect or defendant that had not been disclosed to the defense attorney.

The post-it note containing the directive “DO NOT DISCLOSE” is reminiscent of Shelby County District Attorney Amy Weirich’s sticky note, “Do not show defense,” that she left on a file in another high-profile murder case.

The Albuquerque Journal didn’t make the bar complaint available online, but included this direct quote from its author, an assistant district attorney in the office:

“While the DA’s office will not go so far as to stipulate that all of this information would have been deemed admissible at trial, it does appear that most of the information contained in these packets is exculpatory and should have been disclosed…”

The DA’s office gave two reasons for filing the complaint against Lidyard:

  • It was forced to offer a lenient plea deal to Calandro because Lidyard had failed to turn over evidence that supported the defense team’s theory of self-defense,
  • The duty to inform the state bar when a lawyer violates his ethical duties is mandatory in New Mexico, which is not true in all states.

A relevant advisory opinion from the state bar on the question of whether to report a lawyer’s ethical violation raises interesting questions about how serious the violation need be to report and notes the profession’s general unease with such an obligation. It’s not clear in this instance whether the Santa Fe DA’s office was compelled by the bar rules to file the complaint or whether it was glad to – the fact that it released a copy of the complaint to the Albuquerque Journal suggests the latter – but it’s a win for public accountability that the state’s ethics guidelines encouraged it.

The subject of the complaint, former prosecutor Jason Lidyard, is now a District Court judge. We’ll follow developments as the state bar considers the complaint against him and decides whether to refer it to the state supreme court.

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