In Re Stuart

KRAMER, Associate Judge,

concurring:

I write separately to express my agreement with the view of my colleague, Judge Nebeker, that a prosecutor who, in response to a question from the court, falsely denies having knowledge of the location of a witness with information possibly exculpatory to a defendant deserves more than a three-year sanction and serious consideration of disbarment. This is particularly true when the prosecutor has previously been cautioned about similar improprieties. Indeed, as the Opinion and Order of the New York Appellate Division of the State Supreme Court (attached to the Board’s Report) relates, Stuart received a Letter of Caution from a New York Grievance Committee in 1999 for prosecutorial misconduct that resulted in the reversal of convictions for murder, robbery and weapons possession. The details of that case are outlined in People v. Walters, 251 A.D.2d 433 , 674 N.Y.S.2d 114 (1998). The misconduct involved Stuart’s (1) “insinuation [to the jury] that the gun which had been recovered from the defendant two weeks after the crime in an unrelated arrest [ ] may have been the gun which was used to shoot the victim,” despite Stuart’s “knowledge that the ballistics test performed by police conclusively established that the gun had not been used in the crime,” id. at 116; (2) improper inflammatory remarks that he “persisted] in making” that were “designed to appeal to the jury’s sympathy,” including his statement that “the victim was left ‘on the street to die, to die like a dog1,” that “but for the crime, [the victim] ‘was probably going to be a brilliant artist’,” and that the jury should “ ‘imagine what a shock it was to [the victim’s] wife, who’s eight months pregnant’,” id.; (3) suggestion to the jury that the defendant, not the State, bore the burden of proof; and (4) description, in closing argument, of “the defendant’s testimony as ‘continued lies on top of lies, on top of lies’,” id.

As Judge Nebeker articulates, such conduct by a prosecutor undermines the public’s confidence in the criminal justice system. Yet, as Judge Ruiz correctly points out, the law of this jurisdiction gives great deference to the sanction imposed by the original disciplining jurisdiction. Because of that deference, firmly imbedded in our disciplinary system, see, e.g., In re Childress, 811 A.2d 805, 807 (D.C.2002) (noting that “imposition of identical discipline *1122 should be close to automatic” (internal quotation marks omitted)), I feel compelled to join the opinion. Nonetheless, while that rule may be a sound one in the majority of cases, we need to take care not to follow it automatically in cases in which doing so could result in substantially undermining the public’s confidence in the criminal justice system.