# In re Dobbie & In re Taylor

> District of Columbia Court of Appeals · December 7, 2023

URL: https://www.frixlaw.com/law-library/cases/9907851

## Case

- **Court:** District of Columbia Court of Appeals
- **Decided:** December 7, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that frivolous motions “tainted the judicial process in more than a de minimis way,” in part because they “required responsive action from both the Superior Court and this court, as well as from the defendant” (italics omitted)

## Opinion text

Notice: This opinion is subject to formal revision before publication in the Atlantic
and Maryland Reporters. Users are requested to notify the Clerk of the Court of
any formal errors so that corrections may be made before the bound volumes go
to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 21-BG-0024

IN RE MARY CHRIS DOBBIE, RESPONDENT.

A Member of the Bar of
the District of Columbia Court of Appeals
(Bar Registration No. 975939)

IN RE REAGAN TAYLOR, RESPONDENT.

An Attorney Licensed to Practice Law
in the State of Tennessee

On Report and Recommendation
of the Board on Professional Responsibility
(Disciplinary Docket Nos. 2014-D208 & D209)
(Board Docket No. 19-BD-018)

(Argued May 24, 2022 Decided December 7, 2023)

Timothy J. Simeone, with whom Thomas B. Mason and Amy E. Richardson
were on the brief, for respondent Dobbie.

J. Alex Little for respondent Taylor.

Hamilton P. Fox, III, Disciplinary Counsel, with whom Hendrik deBoer,
Assistant Disciplinary Counsel, was on the brief, for the Office of Disciplinary
Counsel.

Donald B. Verrilli, Jr. filed a brief on behalf of the National Association of
Assistant United States Attorneys and Individual Former Assistant United States
Attorneys as amici curiae, in support of respondents.
2

David B. Goodhand, with whom Stacy M. Ludwig, Channing D. Phillips,
Elizabeth Trosman, John P. Mannarino, and Patrice M. Mulkern were on the brief
on behalf of the United States as amicus curiae, in support of respondents.

Samia Fam filed a brief on behalf of the Public Defender Service as amicus
curiae, in support of the Office of Disciplinary Counsel.

Sarah F. Kirkpatrick filed a brief on behalf of the Mid-Atlantic Innocence
Project as amicus curiae, in support of the Office of Disciplinary Counsel.

Before DEAHL and ALIKHAN, Associate Judges, and GLICKMAN, * Senior Judge.

Opinion for the court by Associate Judge ALIKHAN.

Dissenting opinion by Associate Judge DEAHL at page 72.

ALIKHAN, Associate Judge: In Vaughn v. United States, 93 A.3d 1237

(D.C. 2014), this court held that the United States Attorney’s Office for the District

of Columbia had violated its constitutional obligation under Brady v. Maryland, 373

U.S. 83 (1963), to disclose exculpatory information to the defense during the

prosecution of Carl Morton and Alonzo Vaughn. We consequently reversed

Morton’s convictions for aggravated assault and assault on a law enforcement

officer. Vaughn, 93 A.3d at 1244. 1

*
Judge Glickman was an Associate Judge of the court at the time of argument.
He began his service as a Senior Judge on December 21, 2022.
1
For reasons not relevant here, we did not reverse Vaughn’s convictions on
this basis, although we did reverse one of his convictions on other grounds. Vaughn,
93 A.3d at 1266, 1270.
3

After Vaughn, Disciplinary Counsel initiated disciplinary proceedings against

the prosecutors who committed the Brady violation, respondents Mary Chris Dobbie

and Reagan Taylor. This case arises out of those proceedings.

In its Report and Recommendation, the Board on Professional Responsibility

found that respondents had violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of

Columbia Rules of Professional Conduct. Rule 3.8(e), in relevant part, prohibits

prosecutors from “[i]ntentionally fail[ing] to disclose to the defense . . . any

evidence or information that the prosecutor knows or reasonably should know tends

to negate the guilt of the accused or to mitigate the offense.” Rule 8.4(c) proscribes

“conduct involving dishonesty, fraud, deceit, or misrepresentation.” And

Rule 8.4(d) forbids conduct that “seriously interferes with the administration of

justice.” The Board recommended that respondents be suspended from the practice

of law for six months.

We agree with the Board that respondents violated each of these rules, but we

disagree as to the appropriate sanction. In recognition of the inadequate and

ill-advised guidance provided to respondents by their supervisors; the nature of

respondents’ Rule 8.4(c) violation; respondents’ lack of bad faith and otherwise

unblemished records; and our obligation to treat similar cases alike, we instead

impose a six-month suspension, stayed as to all in favor of one year of probation.
4

I. Factual Background and Procedural History

A. The Collins Report

In late 2007, a brawl erupted at the D.C. Jail, resulting in injuries to several

inmates and a guard. Security camera footage of the incident was not very clear, so

the U.S. Attorney’s Office relied on D.C. Department of Corrections (“DOC”)

officers to identify the participants in the incident for purposes of investigation and

potential criminal charges. One such officer was Lieutenant Angelo Childs, who

was not present for the events but claimed to recognize inmates Vaughn and Morton

in the video footage. The U.S. Attorney’s Office indicted Vaughn and Morton for

assault and assigned respondents to prosecute the case.

About six months before the trial, Childs sprayed a chemical agent—think

mace or pepper spray—on an inmate, Ernest Heath, during a search for contraband

at the jail. Heath’s arms were restrained behind his back at the time Childs sprayed

him. After this incident, Childs submitted a disciplinary report charging Heath with

“Assault Without Serious Injury and Lack of Cooperation.” Childs also prepared an

incident report defending his own use of force. This latter report stated that Childs

had sprayed Heath only after he began “kicking at” a drug-sniffing dog involved in

the search. The report also said that Heath had behaved violently and implied—
5

without explicitly stating—that Heath had been unrestrained at the time Childs had

sprayed him. The relevant passage of his incident report read:

On Tuesday, April 7, 2009, at approximately 2:12 p.m., I
was on North Two conducting a shakedown. Inmate
Ernest Heath (309-656) refuses to be search [sic] by the
K-9. K-9 Handler David Thomas attempted to search
Ernest Heath. Inmate Ernest Heath started kicking at the
dog. Because Inmate Ernest Heath’s actions interfered
with the normal operations of the facility, I sprayed one
burst of chemical agent. I then instructed Inmate Ernest
Heath to seize [sic] his disruptive behavior.

Inmate Ernest Heath was placed in restraints, escorted to
male Receiving and Discharge, given a shower, change of
underwear and bed linen. After showering, Inmate Heath
was escorted to the Infirmary to be medically evaluated
and treated. . . .

This incident stemmed from the violent/disruptive
behavior of Inmate Ernest Heath.

Childs’s supervisor was present for the search and, along with another officer,

stated that—contrary to what Childs had claimed in the report—Heath had been

restrained when Childs used force on him. The supervisor subsequently

reprimanded Childs, issuing him a “Letter of Direction” for violating DOC’s

use-of-force policies.

The fallout from Childs’s actions did not end there. DOC opened a formal

investigation into the incident, led by investigator Benjamin Collins. Collins

reviewed security camera footage of the incident, as well as other evidence, and
6

issued a report memorializing his findings (the “Collins Report”). The Collins

Report is 10 pages long with 76 pages of appendices. It includes three substantive

sections: a “Background” section describing the basic facts; an “Investigation”

section describing the video footage Collins reviewed, the reports the officers

involved filed, and any discrepancies between the two; and a “Findings” section with

four formal findings.

The Investigation section makes clear that Childs filed multiple false reports

about the Heath incident. It explains that Childs “composed and submitted a

Disciplinary Report charging inmate Heath with Assault without Serious Injury and

Lack of Cooperation,” but that the “[v]ideo footage of the incident does not support

the allegation that inmate Heath assaulted any Correctional Officer or canine.” It

also recounts how Childs filed an incident report “suggest[ing] that at the time of the

incident, inmate Heath was not restrained, displayed disruptive behavior, and was

‘kicking at’ the canine causing Lieutenant Childs to use chemical agent to restore

‘normal operations.’” But the evidence indicated that in fact “Inmate Heath was in

restraints and not a threat to ‘normal operations’ when he was sprayed with chemical

agent by Lieutenant Childs.” This section also states that, during an interview,

Childs admitted that his incident report “was incorrect and written in error,” and that

he was issued a Letter of Direction reprimand because of his wrongful use of force.
7

Two of the statements in the report’s Findings section also pertain to Childs.

The first is that Childs’s use of chemical agent on a restrained inmate was a violation

of DOC policy. The second restates the Investigation section’s adverse credibility

finding about Childs’s incident report (although not the one about his disciplinary

report): “Lieutenant Angelo Childs submitted a false and or misleading Incident

Report of the facts in stating that the inmate was placed in restraints after being

sprayed with chemical agent.”

In sum, the Collins Report concluded that Childs had violated DOC’s use-of-

force policy, had been reprimanded for doing so, had filed a false or misleading

incident report, and had filed a false disciplinary report accusing Heath of an assault

he did not commit. But only the first two of these four conclusions were formal

“findings” in the Findings section (a fact that will be relevant later). Several months

after Collins issued his report, DOC demoted Childs from the rank of lieutenant to

that of sergeant. 2

Aware that the U.S. Attorney’s Office was planning to sponsor Childs in the

Vaughn prosecution, Collins informed respondent Taylor that “there was an issue”

with Childs. He later emailed her his report, although he did not send any of the

2
According to respondent Taylor, Childs took a “voluntary demotion” in lieu
of a harsher sanction for his violation of DOC policy.
8

evidence on which he had relied—i.e., the videotape—or the appendices. Collins

also informed Taylor that DOC had demoted Childs.

Respondents recognized that the Collins Report called Childs’s credibility

into question and sought guidance from their supervisors about how best to proceed.

Jeffrey Ragsdale, Chief of the Felony Major Crimes Section at the U.S. Attorney’s

Office, decided to refer the issue to the Lewis Committee, a committee of senior

prosecutors that determines whether the government can sponsor the testimony of

law enforcement officers with whom there are credibility concerns. Ragsdale

emailed John Roth, the head of the committee, a copy of the Collins Report and a

summary of the concerns regarding Childs. At this point, the Collins Report was the

only information the U.S. Attorney’s Office had about the incident; neither

respondents nor anyone else had reviewed the underlying evidence on which it was

based. 3

3
Shortly after Ragsdale sent the Collins Report to the Lewis Committee,
Taylor conducted a standardized “Oral Request for Giglio Information” interview
with Childs. She asked him: (1) whether there were any findings of misconduct that
reflected upon his truthfulness or possible bias; (2) whether there were any past or
pending criminal charges or investigations against him; and (3) whether there were
any credible allegations of misconduct on his part that reflected on his truthfulness
or bias that were subject to a pending investigation. Childs answered “no” to all
three questions. Childs also informed Taylor that he had taken “a voluntary
demotion because of his excessive force and because he made errors in cutting and
pasting in a report.” According to Taylor, she believed that Childs had answered her
9

Although the Vaughn trial was only five weeks away when Ragsdale first

emailed Roth, the Lewis Committee proved less than forthcoming with its guidance.

Respondents and Ragsdale followed up, eventually prompting a response from Roth

less than two weeks before trial. Roth said that the government could sponsor Childs

and instructed respondents to “disclose the report and litigate its admissibility.” He

also expressed his “personal opinion” that Childs’s report was “simply unclear” and

that he was not sure “that the DOC conclusion that he lied is supported by the

record,” but he left it to respondents to “hash that out.” Roth formed this personal

opinion even though the only “record” before him was the Collins Report, which

had concluded in no uncertain terms that Childs had filed two false reports.

While respondents could have followed Roth’s instructions by disclosing the

Collins Report to the defense directly and then litigating whether it was admissible

at trial, that is not the route they took. Instead, Ragsdale recommended that

respondents file the report with the court ex parte and under seal and summarize its

contents in a motion in limine arguing that the defense should not be permitted to

cross-examine Childs about the report or the incident with Heath. This approach

was not uncommon in the U.S. Attorney’s Office at the time. The purported purpose

questions truthfully to the best of his knowledge, because she assumed he was not
aware of the Collins Report and its conclusions about his false reporting. There is
no evidence that respondents provided any of this information to the Lewis
Committee.
10

of proceeding in this manner—submitting evidence only to the court and

summarizing it in a motion for the defense—was to disclose to the defense

information to which the defense was entitled, while keeping from the defense

information that presented a security risk or was otherwise sensitive. According to

the respondents, the Collins Report contained “sensitive employment information”

and thus needed to be kept from the defense.

B. Motions Practice Concerning the Collins Report

Five days before trial, respondents filed the Collins Report and an

accompanying motion in limine with the court. The stated purpose of the motion in

limine was to “limit the scope of cross examination [of Childs] by the defendant”

and “preclude the defense from referring to the fact [that] DOC Office of Internal

Affairs may have made potentially adverse credibility findings regarding Officer

Child’s [sic] statement regarding when Inmate A was handcuffed.” The motion

explained that DOC’s investigation “resulted in two findings related to Officer

Childs: (1) Officer Childs’[s] use of force violated DOC policy and (2) Officer

Childs submitted a false and or misleading statement in reciting the facts.” The

motion did not, however, mention the Collins Report’s additional conclusion that

Childs submitted a disciplinary report falsely accusing Heath of assault. It also did

not disclose that Childs had been demoted, or that before his demotion or the
11

issuance of the Collins Report, his supervisor had reprimanded him for his use of

force on a restrained inmate. Respondents also included in the motion a block quote

from Childs’s incident report that describes Heath “kicking at the dog” and

“interfer[ing] with the normal operations of the facility,” without clarifying that

Collins had discredited these very assertions.

The motion in limine also cast considerable doubt on the Collins Report’s

conclusions, echoing Roth’s earlier assessment. It declared that the government was

“not conceding that Officer Childs in fact made a false and/or misleading statement.”

It also contended that “even assuming arguendo that Officer Childs made a false

and[/]or misleading statement into an Internal Affairs investigation, that ‘bad act’

does not ‘bear[] directly upon’ his veracity” with respect to the Vaughn trial. Yet

more, the motion stated that “[t]he conclusion that Officer Childs made a false or

misleading statement is at odds with the body of the report and does not appear

evident from the text of Officer Childs’[s incident report].”

This commentary was seriously misleading. The Collins Report

unequivocally states that Childs filed two false or misleading reports, and the “body

of the [Collins] [R]eport” supports those conclusions. In the most generous possible

framing, Childs’s incident report was unclear about whether Heath was restrained at

the time Childs sprayed him. But the incident report also says that Heath was
12

behaving in a “violent” and “disruptive” manner, something the Collins Report

found to be untrue. Respondents also omitted Collins’s conclusion that Childs

falsely charged Heath with assault. And the motion did not explain how Childs’s

alleged misrepresentations would not “‘bear[] directly upon’ [Childs’s] veracity” in

the Vaughn trial.

Respondents also filed an ex parte motion to keep the Collins Report under

seal. This motion expressed the government’s belief that it was unnecessary to

disclose the actual Collins Report to the defense, because the “essential facts” of the

report were “related in the Background section of the Government’s Motion in

Limine.” Based on the record, this was not correct. 4

Making matters worse, the disclosure of the Collins Report itself did not go

as planned. Dobbie attempted to fax it to the court but, due to a faxing error, sent

only the first five pages. The information respondents omitted from the motion in

4
Before the Hearing Committee, respondents offered several explanations for
these drafting decisions. Dobbie, the motion’s primary author, explained that she
started with the Collins Report’s Findings section and worked backward, for the
most part including in the motion only the facts related to the formal findings. She
also testified that she did not think that the government had any obligation to disclose
the fact that Childs had submitted a false disciplinary report. And although she
recognized that Childs’s demotion should have been disclosed, she claimed to have
forgotten about this fact when drafting the motion. Taylor, for her part, said that she
was aware that both the Collins Report’s conclusion about Childs’s disciplinary
report and his demotion were Brady material, but she largely failed to explain why
these facts were left out of respondents’ filings.
13

limine (about Childs’s false disciplinary report and reprimand for using force) began

on the sixth page.

C. Use of the Collins Report and its Consequences

The defense requested the Collins Report before trial, but the government

opposed. During the hearing on this request, the trial court asked respondents

whether Childs had been “put on any probationary status” because of the incident

with Heath. Dobbie replied that Childs had been demoted and she expected him to

testify that “he was demoted related to this incident, but not as to the particulars.”

In that same hearing, the court pressed respondents about why the government

could not simply provide the Collins Report to the defense subject to a protective

order. Dobbie answered that “the government doesn’t believe that there is anything

in the report that wasn’t disclosed in the motion [in limine] that would be necessary

for the defense counselors for the purposes that the Court has allowed the

questioning.” But in the same conversation, she also asked the court whether any

further disclosures were necessary:

The government does not agree that it[’]s required to turn
over the final report. I’ve made representations in the
motion, and the Court has the final report, to be clear. And
if the Court finds that there’s anything in the final report
that should additionally be disclosed to defense counsel, if
there’s anything that I didn’t include that would be
14

useful—and I also want to make clear that the government
is requesting that—I understand the Court’s ruling that the
defense counsel are permitted to ask about the—this event.

The court ultimately ruled that the defense could cross-examine Childs about his

false incident report but denied the defense’s request for the Collins Report itself.

After Childs testified at trial, the trial judge asked respondents whether they

had provided the entire Collins Report, noting that the version he had been given

was only five pages long. Dobbie had only brought to court a copy of what she had

faxed—that is, an incomplete version of the report—and after consulting it, affirmed

that her copy was also only five pages. She did so despite the fact that the Findings

section on which she purportedly had relied while drafting the motion in limine

began on page nine and thus was not part of the copy she consulted. Although Taylor

had a complete copy of the report with her, she did not consult it or attempt to

supplement Dobbie’s response to the court’s question.

The jury convicted both Morton and Vaughn of aggravated assault and assault

on a law enforcement officer. In post-trial litigation, the court ordered the full

Collins Report disclosed to the defense, at which point it became apparent that the

court had previously received only a partial copy. Morton moved for a judgment of

acquittal or a new trial because the government had not fulfilled its Brady

obligations. Morton pointed out, among other things, that the government’s motion
15

in limine never disclosed that Officer Childs had submitted a false disciplinary

report. The trial court denied the motion and sentenced both Vaughn and Morton to

over 60 months in prison. On appeal, this court reversed Morton’s convictions

specifically because of the government’s Brady violations. Vaughn, 93 A.3d at

1266. The government did not retry Morton.

Because we concluded in Vaughn that respondents had failed to disclose

exculpatory information to the defense, the Office of Disciplinary Counsel charged

them with violating Rule 3.8(e). It also charged them with a violation of Rule 3.4(d),

which makes it professional misconduct to “fail to make reasonably diligent efforts

to comply with a legally proper discovery request by an opposing party,” as well as

violations of Rules 8.4(c), and 8.4(d). 5 The Hearing Committee concluded that

respondents had violated all four rules and recommended a 30-day suspension. The

Board agreed except as to Rule 3.4(d). But despite finding fewer violations than did

the Hearing Committee, the Board recommended a suspension of six months.

5
Disciplinary Counsel additionally charged respondents with violating
Rule 3.3(a)(1), which prohibits knowingly making false statements of fact to a
tribunal or failing to correct such statements, and Rule 3.3(a)(4), which forbids a
lawyer from offering evidence that she knows to be false. These charges relate to
Childs’s trial testimony and are not relevant to this appeal.
16

II. Standard of Review

Disciplinary Counsel bears the burden of proving attorney violations of the

Rules of Professional Conduct by clear and convincing evidence. In re Anderson,

778 A.2d 330, 335 (D.C. 2001). The Board reviews the Hearing Committee’s legal

conclusions de novo and accepts its factual findings if they are supported by

substantial evidence. In re Martin, 67 A.3d 1032, 1039 (D.C. 2013). We in turn

review the Board’s legal conclusions de novo and factual findings for substantial

evidence. In re Kline, 113 A.3d 202, 206 (D.C. 2015).

The Board’s recommended sanction “comes to us with a strong presumption

in favor of its imposition.” In re McClure, 144 A.3d 570, 572 (D.C. 2016)

(per curiam) (quoting In re Baber, 106 A.3d 1072, 1076 (D.C. 2015)). We “shall

adopt the recommended disposition of the Board unless to do so would foster a

tendency toward inconsistent dispositions for comparable conduct or would

otherwise be unwarranted.” D.C. Bar R. XI, § 9(h)(1).

III. Disciplinary Violations

A. Rule 3.8(e)

The Board concluded that respondents violated Rule 3.8(e) by failing to

disclose to the defense both that Childs had filed a false disciplinary report charging
17

Heath with assault and that Childs was demoted. We agree as to the former but not

the latter.

1. Rule 3.8(e)’s State-of-Mind Requirements

Rule 3.8(e) reads in relevant part:

The prosecutor in a criminal case shall not . . . .
[i]ntentionally fail to disclose to the defense, upon request
and at a time when use by the defense is reasonably
feasible, any evidence or information that the prosecutor
knows or reasonably should know tends to negate the guilt
of the accused or to mitigate the offense . . . except when
the prosecutor is relieved of this responsibility by a
protective order of the tribunal.

A Rule 3.8(e) violation thus requires the following: (1) there must be evidence or

information that tends to negate the guilt of the accused or mitigate the offense—

call it exculpatory information; (2) the prosecutor must be aware of this information

and either know that it is exculpatory, or the information must be such that a

reasonable prosecutor would know that it is exculpatory; and (3) the prosecutor must

intentionally fail to disclose this information to the defense upon request.

The parties and their amici devote considerable briefing to Rule 3.8(e)’s

state-of-mind requirement, and we address it at the outset. Properly understood,

Rule 3.8(e) has two such requirements, and our interpretation of the rule must give

effect to both. See Corley v. United States, 556 U.S. 303, 314 (2009). The first is
18

“intentionally,” and it modifies the action (or more likely inaction) element of the

rule: a failure to disclose information to the defense. “Intentionally” is an adverb

that means “on purpose.” Oxford English Dictionary 1080 (2d ed. 1991); Black’s

Law Dictionary 810 (6th ed. 1990) (explaining that a person acts “intentionally” only

if he “desires to cause [the] consequences of his act or he believes [those]

consequences are substantially certain to result”). Consistent with these dictionary

definitions, we have explained that “‘intentional’ requires an element of

purposefulness or deliberateness or, at a minimum, of aggravated neglect.” In re

Kline, 113 A.3d at 213. So, to violate the rule, a prosecutor must act or fail to act

with the purpose that information not be disclosed.

Rule 3.8(e)’s second state-of-mind requirement is knowledge or an

unreasonable lack of knowledge. This mental state applies to the nature of the

information that the prosecutor intentionally fails to disclose. It contemplates two

situations, either of which suffices for a violation. In the first, the prosecutor knows

that the information she intentionally failed to disclose is exculpatory. In the second,

the prosecutor does not know that the information she intentionally failed to disclose

is exculpatory, but this absence of knowledge is unreasonable. Rule 3.8(e) cannot

be read to exclude either scenario. It uses the disjunctive—“knows or reasonably

should know”—meaning that it contemplates either of two mutually exclusive

possibilities: knowledge, or a lack of knowledge that is not reasonable.
19

The way these two states of mind interact in the Rule 3.8(e) context is not

always straightforward, but consider the following examples. In the first example,

a prosecutor is aware of two pieces of information, both of which he knows are

exculpatory. He decides to disclose both of them to the defense and attempts to do

so. But, because of a genuine accident on his part, he fails to attach one of the pieces

of information to his submission and thus the defense never receives it. This

prosecutor has not violated Rule 3.8(e) because his failure of disclosure was not

intentional. It was not his purpose or objective to withhold the second piece of

information. To the contrary, his goal was to disclose it, but because of an accident,

he failed to do so.

In the second example, a prosecutor is aware of two pieces of information,

one of which is objectively exculpatory and one of which is not. She decides to

disclose only the second, non-exculpatory piece of information to the defense, and

she does just that. In this situation, the prosecutor has intentionally failed to disclose

exculpatory information to the defense. Her purpose and objective was to not

disclose the first piece of information, and she accomplished that objective. Has that

prosecutor violated Rule 3.8(e)? It depends. If, at the time she intentionally failed

to disclose the first piece of information, she knew that it was exculpatory, the

answer is yes. If instead she did not know that the information was exculpatory, but

a reasonable prosecutor would have known that it was, the answer is also yes. In
20

that scenario, the prosecutor has intentionally failed to disclose information to the

defense that the prosecutor reasonably should have known was exculpatory. But if

the prosecutor did not know that the first piece of information was exculpatory, and

a reasonable prosecutor also would not have known that the information was

exculpatory, the answer is no. She did not have the requisite state of mind with

respect to the nature of the information she intentionally failed to disclose.

This is how the court interpreted Rule 3.8(e)’s state-of-mind requirements in

In re Kline, our only prior case on this issue. Kline was a prosecutor who failed to

disclose a piece of exculpatory information to the defense because he “did not

believe he had an obligation to turn it over.” 113 A.3d at 206. We held that he had

violated Rule 3.8(e). Id. at 213-14. Kline had acted intentionally, we explained,

because his failure to disclose the information “was a purposeful or deliberate act”

and the product of a “conscious[] deci[sion].” Id. Kline’s conscious, purposeful

inaction was sufficient for a Rule 3.8(e) violation. We could hardly have been

clearer on this point, stating at the end of our analysis that “the evidence is such that

it produces in the mind of the trier of fact a ‘firm belief’ that Kline intentionally

withheld the statement because he did not think it was exculpatory.” Id. at 214

(emphasis added).
21

Respondents and their amici resist this understanding of Rule 3.8(e)’s

state-of-mind requirements. Although they use varying terminology, their positions

amount to the same thing: to violate Rule 3.8(e), a prosecutor must act or fail to act

with the purpose to deprive the defense of exculpatory information. Put another

way, the prosecutor must intend the forbidden result, so her intentionality must

extend not only to the nondisclosure, but also to the nature of the information.

To reach this result, respondents focus on the word “intentionally.” They

begin where we do, with the word’s ordinary meaning. To act intentionally, they

correctly explain, is to act “on purpose; with conscious intent.” But they break with

us regarding exactly what must be done on purpose. In their view, a prosecutor must

not just fail to disclose information on purpose; she must fail to do what Rule 3.8(e)

requires her to do on purpose.

The primary problem with this reading of Rule 3.8(e) is that it fails to account

for the phrase “reasonably should know.” To reiterate, Rule 3.8(e) holds a

prosecutor liable for intentionally failing to disclose information she “knows or

reasonably should know” is exculpatory. This means that a prosecutor can violate

Rule 3.8(e) if she intentionally fails to disclose information she does not know is

exculpatory, so long as this belief is not reasonable. But that result, dictated by the

plain text of Rule 3.8(e), cannot be reconciled with how respondents would read the
22

rule, because in that situation the prosecutor has not violated her disclosure

obligations intentionally. Because she did not know that the information she

intentionally withheld was information she was required to disclose, her purpose was

not to shirk the rule. In other words, her intentionality did not extend to the nature

of the information. Put another way, respondents’ interpretation would make it

impossible for prosecutors to violate the rule accidentally, but unreasonably.

“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon

the whole, to be so construed that, if it can be prevented, no clause, sentence, or word

shall be superfluous, void, or insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). The same is true for

rules of professional conduct. See In re Greenspan, 910 A.2d 324, 335-36

(D.C. 2006). For respondents’ reading of Rule 3.8(e) to prevail, they must offer an

interpretation of “reasonably should know” that is at least as compelling as the

common-sense one offered above.

Their effort to do so falls short. Respondents submit that “reasonably should

know” simply indicates that whether information is exculpatory or not should be

evaluated based on what is known at the time of trial, not what is known

retrospectively during the adjudication of a Rule 3.8(e) charge. That may be true,

but it is unclear how this serves respondents. In theory, if a piece of information’s
23

exculpatory nature was not reasonably apparent or knowable at the time it is

withheld, then a prosecutor cannot be said to have violated the rule. But here, the

withheld information was clearly exculpatory, and its exculpatory value existed

before, during, and after it was withheld.

Nor can we square respondents’ preferred construction of Rule 3.8(e) with In

re Kline. Recall that Kline was held liable under Rule 3.8(e) for not disclosing

exculpatory information that he did not believe he needed to disclose. 113 A.3d at

214. Because we concluded that Kline was simply mistaken as to the evidentiary

significance of the information at issue, we necessarily did not conclude—and could

not have concluded—that he had acted in bad faith or with a purpose to achieve a

wrongful result. Id. That is to say, Kline did not think he was violating his disclosure

obligations, so he did not intentionally violate them. Id. But he was held to have

violated Rule 3.8(e) nevertheless.

Respondents’ efforts to recast In re Kline are not persuasive. They argue that

the court inferred from Kline’s pervasive pattern of nondisclosure that he acted with

the intention to violate Rule 3.8(e). Their amici further suggest that the court in In

re Kline imposed a “bad faith” requirement. Neither contention is correct. The court
24

in fact said that “Kline consciously decided that [the information] did not have to be

produced and thus acted with ‘deliberateness.’” 113 A.3d at 214. 6

Finding little support in text or precedent, respondents and their amici devote

much of their briefing to legislative history. Even if the legislative history strongly

favored respondents’ position, it would not matter, because legislative history cannot

override unambiguous language and binding precedent. Hood v. United States, 28

A.3d 553, 559 (D.C. 2011) (“The primacy of the statutory text means that resort to

legislative history to construe a statute is generally unnecessary (if not, indeed,

disfavored); usually it is appropriate only to resolve a genuine ambiguity or a claim

that the ‘plain meaning’ leads to a result that would be absurd, unreasonable, or

contrary to the clear purpose of the legislation.”). But the legislative history on

which respondents rely has little to offer. To support their understanding of

“intentionally,” respondents cite to a 1986 joint report from the D.C. Bar’s Model

6
Respondents and their amici also cite two concurrences in Miller v. United
States, 14 A.3d 1094 (D.C. 2011), for support, but these separate writings add little
to our analysis. It is true that Judge Ruiz’s solo concurrence suggests in passing that
a violation of Rule 3.8(e) requires bad faith. Id. at 1134-35 n.1 (Ruiz, J., concurring).
But a solo concurrence is just that—a solo concurrence. And even if Judge Ruiz’s
solo concurrence was a majority opinion, her comment on Rule 3.8(e) would be
dictum because Miller did not involve a Rule 3.8(e) charge, only a Brady violation
in the context of a direct criminal appeal. Id. at 1097. The U.S. Attorney’s Office’s
appeal to Judge Schwelb’s concurrence is also unconvincing because that opinion
does not even purport to address the scope of liability under Rule 3.8(e). Id. at 1135
(Schwelb, J., concurring).
25

Rules of Professional Conduct Committee (the “Jordan Committee”) and the D.C.

Bar Board of Governors, which made recommendations to this court regarding the

Rules of Professional Conduct, and the various materials on which the drafters of

that report relied in making their recommendations. See Proposed Rules of

Professional Conduct and Related Comments, Showing the Language Proposed by

the American Bar Association, Changes Recommended by the District of Columbia

Bar Model Rules of Professional Conduct Committee, and Changes Recommended

by the Board of Governors of the District of Columbia Bar (“Jordan Report”) 171-76

(1986). The recommendations contained in this report provided the foundation for

the District’s current rules. Respondents explain that when writing Rule 3.8(e), the

drafters drew from several other similar rules, and only one of these, Standard

3-3.11(a) of the ABA Standards for Criminal Justice, includes the word

“intentionally.” Jordan Report, supra, at 175; ABA Standards for Criminal Justice,

The Prosecution Function, Standard 3-3.11(a) (Am. Bar Ass’n 2d ed. 1980). Other

ABA materials in turn define the mental state of “intent” as “when the lawyer acts

with the conscious object or purpose to accomplish a particular result.” ABA

Standards for Imposing Lawyers Sanctions § II (Am. Bar. Ass’n 1986). Thus,

respondents conclude, the drafters of Rule 3.8(e) sought to incorporate this ABA

definition and therefore to give “intentionally” its ordinary meaning: on purpose.
26

We take no issue with any of that, but we also do not find it particularly

probative of the answer to the critical question: what must be done on purpose? On

that score, respondents’ argument boils down to the somewhat circular contention

that because the drafters of the report included the word “intentionally,” it must bear

the meaning respondents ascribe to it—a violation, not just a failure to disclose

information, must be intentional. But as we have already explained, the answer to

that question must be such that “reasonably should know” also has a reasonable

meaning. And the legislative history respondents offer in support of their

interpretation of “reasonably should know” is unpersuasive.

Respondents insist that a set of notes summarizing the discussion in a meeting

of the D.C. Bar’s Board of Governors regarding the proposed Rule 3.8(e)

demonstrates that “reasonably should know” addresses issues of temporality. D.C.

Bar Board of Governors, Minutes of March 11, 1986, Attachment D (Notes

Summarizing the Board’s Discussion of Rule 3.8) (“Board of Governors’ Notes”).

But they candidly do “not pretend . . . that it is crystal-clear from the Board of

Governors’ Notes that this is what the Board was trying to achieve with the addition

of ‘knows or reasonably should know.’” These notes indicate that a single Board

member, Charles F.C. Ruff, was concerned about the retrospective vantage point

from which prosecutors’ actions would be evaluated in disciplinary proceedings.

Board of Governors’ Notes, supra, at 4-5. And they show that certain Board
27

members, including Ruff, endorsed adding “knows or reasonably should know” to

the rule. Id. at 2. But the notes provide no indication that this linguistic change was

related to the separate concern about temporality. Id. at 2, 4-5. The discussions are

distinct, and no member proposed adding “reasonably should know” as a way to

prevent prosecutors from being judged unfairly in hindsight. That is unsurprising,

because inserting “reasonably should know” would be a confusing and

counterintuitive way to accomplish that result.

In the excerpt from the notes most helpful to respondents, Ruff notes that “the

Subcommittee [on Rules for Prosecutors of the D.C. Bar Model Rules of

Professional Conduct Committee] was in agreement that [what is now Rule 3.8(e)]

should express the concept that a prosecutor knew or reasonably should have known

that he was in violation of his obligation to disclose mitigating information.” Id. at

2. Even if we read this statement as favoring respondents’ proffered interpretation

of Rule 3.8(e), it has little persuasive value. It is a note describing the way a single

Board member understood the sense of a subcommittee, and third-hand synopsis

cannot make the text of a rule mean something it does not say. This also points to a

larger problem: even if the subcommittee wanted to “express the concept” that a

violation of Rule 3.8(e) must be intentional—something it easily could have done—

that is not the concept expressed by the words comprising Rule 3.8(e). Simply put,

legislative history and speculation about the desires of those who contributed to a
28

text cannot override the clear language of that text. In any event, this excerpt is

unconnected to any discussion of when a prosecutor must be aware that information

is exculpatory. It is a separate comment about a separate issue. In short, nothing in

the legislative history causes us to second-guess our reading of the rule’s text and

our precedent. 7

Respondents’ appeals to public policy and those of their amici are likewise

unavailing. They first contend that it is simply unfair to discipline prosecutors who

have not acted in bad faith. But standards of reasonableness—standards that do not

require bad faith—pervade the Rules of Professional Conduct. 8 And we routinely

7
Still another excerpt of the notes states that Ruff “observed that what the
Jordan Committee was trying to do was to step back from Brady and simply state
that, where the prosecutor knowingly failed to meet some minimum standard of
disclosure, he had committed an ethical violation.” Board of Governors’ Notes,
supra, at 4. We find this third-hand statement even less probative than the others we
have discussed, because Ruff refers to a state of mind—knowingly—found nowhere
in Rule 3.8(e).
8
See, e.g., D.C. R. Pro. Conduct 2.3(b) (“When the lawyer knows or
reasonably should know that [an] evaluation [of a matter affecting a client provided
for the use of someone other than the client] is likely to affect the client’s interests
materially and adversely, the lawyer shall not provide the evaluation unless the client
gives informed consent.” (emphasis added)); id. Rule 2.4(b) (“A lawyer serving as
a third-party neutral shall inform unrepresented parties that the lawyer is not
representing them. When the lawyer knows or reasonably should know that a party
does not understand the lawyer’s role in the matter, the lawyer shall explain the
difference between the lawyer’s role as a third-party neutral and a lawyer’s role as
one who represents a client.” (emphasis added)); id. Rule 3.4(a) (“A lawyer shall
not . . . [o]bstruct another party’s access to evidence or alter, destroy, or conceal
29

affirm serious penalties for behavior without requiring a showing of bad faith. To

take just one example, this court has often meted out lengthy suspensions to

attorneys who negligently comingled or misappropriated client funds. 9 We see no

reason why prosecutors, who wield tremendous power and exercise broad discretion

over the lives of others, should not be held to a similar standard. We would also be

remiss to overlook the manifest unfairness in the other direction: Brady violations

can cause innocent people to lose their liberty, whether those violations were

committed merely unreasonably or instead with ill intent. Rule 3.8(e) quite properly

evidence, or counsel or assist another person to do so, if the lawyer reasonably
should know that the evidence is or may be the subject of discovery or subpoena in
any pending or imminent proceeding.” (emphasis added)); id. Rule 3.6 (“A lawyer
engaged in a case being tried to a judge or jury shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be disseminated by
means of mass public communication and will create a serious and imminent threat
of material prejudice to the proceeding.” (emphasis added)).
9
See, e.g., In re Robinson, 74 A.3d 688, 697-98 (D.C. 2013) (noting that “[a]
six-month suspension is the norm as a starting point for negligent misappropriation
cases” and suspending an attorney for seven months for negligent misappropriation
of client funds); In re Herbst, 931 A.2d 1016, 1017 (D.C. 2007) (“[A] six-month
suspension is the norm for attorneys who have negligently misappropriated client
funds.”); In re Davenport, 794 A.2d 602, 605 (D.C. 2002) (suspending an attorney
for six months for negligent misappropriation of client funds); In re Anderson, 778
A.2d 330, 342 (D.C. 2001) (same); In re Chang, 694 A.2d 877, 878 (D.C. 1997)
(same); In re Reed, 679 A.2d 506, 509 (D.C. 1996) (same); In re Evans, 578 A.2d
1141, 1143 (D.C. 1990) (same); In re Hessler, 549 A.2d 700, 703 (D.C. 1988)
(same).
30

imposes discipline in both circumstances. 10 Finally, we note that the District’s rule

is more lenient with prosecutors than the comparable rules of nearly every other

state, which at least by their terms do not apply an elevated standard of culpability

like “intentionally” to any component of a prosecutor’s failure to disclose

exculpatory information. 11

10
We use “Brady violations” here as a shorthand, and we do not mean to imply
that all Rule 3.8(e) violations are Brady violations, or vice versa. As we explained
in In re Kline, that is not the case. 113 A.3d at 209-11.
11
See, e.g., Alaska R. Pro. Conduct 3.8(d); Ariz. R. Pro. Conduct 3.8(d); Ark.
R. Pro. Conduct 3.8(d); Cal. R. Pro. Conduct 3.8(d); Colo. R. Pro. Conduct 3.8(d);
Conn. R. Pro. Conduct 3.8(d); Del. R. Pro. Conduct 3.8(d)(1); Fla. R. Pro.
Conduct 4-3.8(c); Ga. R. Pro. Conduct 3.8(d); Haw. R. Pro. Conduct 3.8(b); Idaho
R. Pro. Conduct 3.8(d); Ill. R. Pro. Conduct 3.8(d); Ind. R. Pro. Conduct 3.8(d);
Iowa R. Pro. Conduct 32:3.8(d); Kan. R. Pro. Conduct 3.8(d); Ky. R. Sup.
Ct. 3.130(3.8(c)); La. R. Pro. Conduct 3.8(d); Me. R. Pro. Conduct 3.8(b); Md. R.
Att’ys R 19-303.8(d); Mass. R. Pro. Conduct 3.8(d); Mich. R. Pro. Conduct 3.8(d);
Minn. R. Pro. Conduct 3.8(d); Miss. R. Pro. Conduct 3.8(d); Mo. R. Pro. Conduct 4-
3.8(d); Mont. R. Pro. Conduct 3.8(d); Neb. Ct. R. Pro. Conduct § 3-503.8(d); Nev.
R. Pro. Conduct 3.8(d); N.H. R. Pro. Conduct 3.8(d); N.J. R. Pro. Conduct 3.8(d);
N.M. R. Pro. Conduct 16-308(D); N.Y. R. Pro. Conduct 3.8(b); N.C. R. Pro.
Conduct 3.8(d); N.D. R. Pro. Conduct 3.8(d); Ohio R. Pro. Conduct 3.8(d); Okla. R.
Pro. Conduct 3.8(d); Or. R. Pro. Conduct 3.8(b); Pa. R. Pro. Conduct 3.8(d); R.I. R.
Pro. Conduct 3.8(d); S.C. R. Pro. Conduct 3.8(d); S.D. R. Pro. Conduct 3.8(d);
Tenn. R. Pro. Conduct 3.8(d); Tex. R. Pro. Conduct 3.09(d); Utah R. Pro.
Conduct 3.8(d); Vt. R. Pro. Conduct 3.8(d); Va. R. Pro. Conduct 3.8(d); Wash. R.
Pro. Conduct 3.8(d); W. Va. R. Pro. Conduct 3.8(d); Wis. R. Pro. Conduct 20:3.8(f);
Wyo. R. Pro. Conduct 3.8(d). Almost every jurisdiction besides the District phrases
its rule as a command—“[a] prosecutor shall make timely disclosure”—rather than
a prohibition. Nevertheless, the rules of these other jurisdictions do not on their face
give any indication of a culpability requirement besides that a prosecutor have
knowledge of the information that she does not timely disclose.
31

Respondents’ amici also argue that only bad-faith Brady violations can be

deterred through professional misconduct sanctions, so penalizing non-bad-faith

violations accomplishes nothing in practice. We reject that proposition. The specter

of discipline can and should motivate prosecutors’ offices to institute the kind of

training, review, and procedural safeguards that make such violations less likely.

Finally, respondents’ amici insist that the level of disclosure required by our reading

of Rule 3.8(e) would put witnesses at risk. But they have given us no reason to

believe that devices like protective orders will be inadequate to address such

concerns in almost every case.

2. Rule 3.8(e): The Collins Report

Having explained Rule 3.8(e)’s requirements, we now apply them. No one

disputes before this court that the Collins Report contained information that

“tend[ed] to negate the guilt of the accused” in the Vaughn prosecution. While the

duties Rule 3.8(e) imposes on prosecutors are not in every respect identical to those

the Constitution does under Brady and its progeny, see In re Kline, 113 A.3d at

209-11, we agree with the Hearing Committee and the Board that the two overlap

here. In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court held that,

under Brady, prosecutors must disclose to the defense material information that
32

impeaches the prosecution’s witnesses. Id. at 153-54. Rule 3.8(e) incorporates that

principle, absent the materiality requirement.

We can think of few things more powerfully impeaching of Childs—whose

task was to tell the jury that certain D.C. Jail inmates had committed assault—than

that he had previously falsely accused an inmate of assault. So too that he had

violated DOC’s use-of-force policies, filed a false incident report after the fact, and

been disciplined for his use of force. This last piece of information is important

because DOC demoted Childs after he was reprimanded for his unauthorized use of

force. While the record is murky about the exact reason for this demotion, that

Childs was previously reprimanded for his use of force at least allows the inference

that he was demoted for some additional infraction—namely, his untruthful

reporting. Indeed, we made this very inference in Vaughn. See 93 A.3d at 1255.

The ability to make this inference, of course, would have been useful to the defense.

Respondents’ conduct also satisfies both of Rule 3.8(e)’s state-of-mind

requirements. A reasonable prosecutor would have known that the information just

described was Giglio information. Vaughn, 93 A.3d at 1266 (“[W]hether the

government had an obligation to accurately and completely disclose the contents of

the [Collins Report] and the DOC’s consequent decision to demote Officer Childs

should not have been a hard call for the government.”). Respondents make no
33

argument to the contrary, and Taylor testified that she knew all of this material

needed to be disclosed.

Respondents also intentionally failed to disclose some (but not all) of this

information to the defense. The motion in limine they filed—the only disclosure of

the Collins Report’s substance they made available to the defense—did not disclose

that Childs had submitted a false disciplinary report wrongfully accusing an inmate

of assault. And it did not disclose that he had been reprimanded for improperly using

force on an inmate. Crafting the motion that way was the product of a conscious

decision and an intentional act on respondents’ part. As the Board put it:

“Respondents disclosed everything they intended to,” because they “included

everything in the motion in limine that they intended to include.” Much like the

prosecutor in In re Kline, respondents “consciously decided” not to include certain

portions of the Collins Report in their motion “and thus acted with deliberateness.”

113 A.3d at 214 (internal quotation marks omitted). Nothing more is required.

All of that, though, does not quite settle the issue. There is a further question

whether, despite the defects with the motion in limine, respondents nevertheless

adequately disclosed the exculpatory information from the Collins Report by

submitting (part of) the report to the court and asking during trial whether any

additional disclosure was necessary. It is undisputed that it was relatively common
34

at that time for prosecutors who had Brady questions to submit evidence to the court

and ask whether it needed to be provided to the defense. And both the Hearing

Committee and the Board declined to find a Rule 3.8(e) violation based solely on

respondents’ decision to disclose the Collins Report to the court instead of directly

to the defendants.

We agree, in the abstract, that in certain circumstances it may be unfair to

penalize prosecutors for following a practice that was accepted and apparently

approved by the courts. In theory, if respondents had submitted a clear request for

Brady guidance to the trial court, and if the trial court had subsequently held

disclosure to be unnecessary, we might be less inclined to find a Rule 3.8(e)

violation. But that is not what respondents did. Begin with the fact that neither the

motion in limine nor the ex parte motion even mentions Brady or any case in the

Brady line. Nor does either motion ask the court to identify any information not

summarized therein that should be disclosed. To the contrary, the ex parte motion

says: “The government does not believe that disclosure of the Final Report is

necessary for resolution of the Government’s Motion in Limine. The essential facts

are related in the Background section of the Government’s Motion in Limine.” The

argument section of the motion in limine is also devoted to explaining why the

contents of the Collins Report should be excluded from the scope of

cross-examination. It strains credulity to suggest that these motions were actually,
35

despite all appearances, meant to put the court on notice that respondents wanted to

make sure their disclosures were sufficient.

But there is more. The motion in limine casts groundless aspersions on the

Collins Report’s conclusions, which surely counts against the argument that the

motion was a straightforward request for Brady guidance. It is important to

remember that at the time respondents wrote this motion, they had not viewed any

of the underlying evidence on which the Collins Report was based, so they had no

basis to doubt whether Collins’s conclusions were reasonable or not. But that

unfortunately proved no barrier to their disputing those conclusions. Respondents

wrote that “[t]he government is not conceding that Officer Childs in fact made a

false and/or misleading statement,” despite the report’s identification of three such

statements made in two separate reports. 12 Respondents also said that “[t]he

conclusion that Officer Childs made a false or misleading statement is at odds with

the body of the report.” We cannot identify any reasonable justification for that

statement. If anything, respondents sought to downplay the potential Giglio

significance of even the aspects of the Collins Report that they disclosed, arguing

that the finding that Childs filed a false incident report did not “‘bear[] directly upon’

12
These false statements are the false assault charge, the statement that Heath
was acting violently, and the strong implication that Heath was not restrained when
Childs sprayed him with a chemical agent.
36

his veracity with respect to this trial.” This was hardly a reliable means of flagging

to the trial judge that there may have been more Brady material for him to consider

asking the government to release.

Respondents are nevertheless correct that the evidence is not one-sided.

Starting with the motions themselves, a footnote in the motion in limine states that

the Collins Report contains “sensitive employment information” and requests that

the court “review the report in camera prior to disclosing it to defense counsel.” The

ex parte motion similarly says that “[e]ven if the court determines that defense

counsel is entitled to the Final Report or a portion of the Report, the government

requests that this disclosure be made via discovery letter.” These passages suggest

that respondents at least contemplated that the court would review the report and

might order it disclosed to the defense. But these asides do not count for much. For

one, neither passage says anything about reviewing the adequacy of the

government’s Brady disclosures. For another, both statements aim to keep the report

away from the defense and specify procedures to be followed if the court ultimately

disagrees with the government’s arguments. Their goal is clearly to limit disclosure

to the greatest extent possible.
37

More significant are two statements that Dobbie made during trial, one shortly

after the other. As mentioned earlier, when arguing to the court that the government

was not obligated to share the Collins Report with the defense, Dobbie stated:

The government does not agree that it[’]s required to turn
over the final report. I’ve made representations in the
motion, and the Court has the final report, to be clear. And
if the Court finds that there’s anything in the final report
that should additionally be disclosed to defense counsel, if
there’s anything that I didn’t include that would be
useful—and I also want to make clear that the government
is requesting that—I understand the Court’s ruling that the
defense counsel are permitted to ask about the—this event.

Dobbie then reiterated her position that the government had disclosed everything it

was obligated to: “[T]he government doesn’t believe that there is anything in the

report that wasn’t disclosed in the motion that would be necessary for the defense

counselors for the purposes that the Court has allowed the questioning.”

The first statement contains what is absent from the motions: a request for

guidance about whether the government needed to turn additional information over

to the defense. The second statement somewhat undercuts the first, although there

is nothing inconsistent about Dobbie (1) believing that respondents had disclosed

everything they were obligated to but also (2) asking the court whether more was

necessary.
38

While we credit Dobbie’s belated effort to ask the court whether further

disclosures were necessary, we do not think it obviates respondents’ Rule 3.8(e)

violation. Too much went wrong for that. As a refresher, respondents (1) filed a

misleading and factually incomplete motion to exclude evidence; (2) incorrectly

represented that the body of that motion contained all necessary disclosures;

(3) succeeded in getting the evidence excluded, likely in part because of their

misrepresentations; and (4) inadvertently failed to share the underlying evidence

with the court, and at the very least negligently failed to accurately and adequately

respond to the court’s question about whether it had all such evidence. Rule 3.8(e)

cannot abide that course of conduct, even if Dobbie eventually asked in passing

whether the government needed to disclose additional information. One brief

remark cannot turn respondents’ misleading and ultimately successful effort to

exclude evidence into good-faith compliance with their disclosure obligations.

Respondents make much of the fact that they attempted to share the entire

Collins Report with the trial court and were stymied by what appears to have been

an uncooperative fax machine. But we do not think that Dobbie’s faxing mishap

makes much difference to the disposition of the Rule 3.8(e) charge. Because the

record indicates that Dobbie’s failure to fax the full report was a genuine accident,

let us pretend for the purpose of analysis that no such accident occurred and that

Dobbie did manage to fax the entire Collins Report at the appropriate time. That
39

does not convert respondents’ motion in limine into a request for Brady guidance,

make up for the fact that its summary of the relevant facts was incomplete despite

respondents’ repeated assurances to the contrary, or erase the misleading gloss

respondents put on the Collins Report’s conclusions. It is of course possible that

everything else notwithstanding, the trial court could have taken it upon itself to

scrub the Collins Report, compare it to the motion in limine, identify the Brady

material that had been withheld, and order that material disclosed at an early enough

time to be useful to the defense. But this counterfactual is speculative and unlikely,

even assuming that the trial court had the full report. We might view the situation

differently if respondents had made a clear and timely request for Brady guidance.

In that scenario, respondents’ only real error may well have been a botched faxing

job. But that scenario is not this one. Here, respondents’ errors were substantive

and numerous. And here, supposition about how the trial court could have bailed

respondents out if equipped with all of the information cannot be dispositive.

We are also unconvinced by respondents’ assertion that, despite what the

motion in limine said, the trial court understood it as a request for Brady guidance.

In his testimony before the Hearing Committee, the trial judge, Judge Robert E.

Morin, said that it was “not unusual for the government at that time to

submit . . . materials that they wanted me to review and determine whether or not it

should be turned over to the defense.” But he did not say that is what happened here.
40

Instead, he said that the motion in limine “came up in a little different posture . . . in

the sense that . . . it was an ex parte motion by the government to prevent

cross-examination.” Judge Morin made clear that he was “not trying to convey an

opinion one way or the other,” but also described the motion as “proactive” and “in

line with what had happened before, in other cases.” We think this testimony means

what it says: Judge Morin correctly understood respondents’ motion not as a request

for Brady guidance but rather as a proactive motion to prevent cross-examination, a

kind of motion the government had made in other cases. And even if it is not

perfectly clear what Judge Morin intended to convey, we still do not think that the

motion in limine can be treated as a request for Brady guidance. The best evidence

of the motions’ intended purposes comes from the motions themselves. At the risk

of belaboring the point, neither had any indicia of a request for Brady guidance.

They were efforts to keep information away from the defense and out of the trial.

Speculation about what implicit understandings Judge Morin might or might not

have had, but left unstated before the Hearing Committee, does not disturb this

conclusion.

Finally, respondents argue that their conduct fell within Rule 3.8(e)’s safe

harbor that exempts prosecutors from making disclosures they otherwise would be

required to make if they are “relieved of this responsibility by a protective order of

the tribunal.” They contend that because they filed the Collins Report with the court
41

and the court denied the defense access to it, there was the equivalent of a protective

order in place that relieved them of their obligation to disclose the contents of the

report. It is debatable whether the trial court imposed some form of protective order.

While the court did not order respondents to provide the Collins Report to the

defense during trial, it did order the report disclosed after trial subject to an express

protective order. So, the court knew how to impose a protective order in direct terms,

and it did not do so during the trial.

But even if we accept that the court implicitly put in place a protective order

for the duration of trial, we have no trouble concluding that it did not cover the Brady

information that respondents had failed to disclose to the defense. Whatever

protective order respondents obtained was obtained at least in part through omission

or misrepresentation. 13 They claimed that the motion in limine contained all

“essential facts” from the Collins Report. But they failed to disclose key conclusions

from the report, most significantly that Childs had filed a false disciplinary report.

13
We recognize that even when the trial court had all of the information before
it post-trial, it affirmed its earlier rulings with respect to the Collins Report. Vaughn,
93 A.3d at 1253. But as we explained in Vaughn, when the entire record is
considered from the outset, it becomes apparent that “the trial court was misled and
that its adoptive fact-finding was clearly wrong.” Id. at 1255. We thus agree with
the suggestion in Vaughn that “[h]ad the defense and the court known the full details
of the OIA’s actual findings and of the discipline meted out by DOC as a result—
and had the government known the defense knew—we think it likely that this case
would have played out very differently.” Id. at 1263.
42

They also cast doubt on and mischaracterized the findings they did disclose. And

they again inaccurately represented in court that they had disclosed all information

to which the defense was entitled. It was only after these actions that the trial court

declined to let the defense access the report.

We therefore understand the trial court’s actions as follows: because the

defense had, so far as the trial court understood, received all the information to which

it was entitled, the trial court simply allowed the prosecution to withhold the rest of

the report—that is, information to which the defense had no entitlement. In other

words, because the trial court was acting on the understanding that all Brady

disclosures had been made, to the extent it imposed a protective order, that order

should be understood only to have covered non-Brady information. By the same

token, it should not be understood to have covered the Brady information that the

government had not disclosed. Respondents thus cannot avail themselves of the

protective order safe harbor with respect to the exculpatory information they left out

of the motion in limine.

Closing out this issue, we emphasize the following: respondents chose—albeit

at the suggestion of their supervisor—not to follow the typical and advisable practice

of disclosing Brady evidence to the defense directly. While we question the wisdom

of using the trial court as a Brady backstop, we do not hold that doing so inherently
43

breached Rule 3.8(e). But we do hold that pursuing this alternative course in the

way respondents did was a violation of the rule. When prosecutors proceed in a

manner inconsistent with Rule 3.8(e)’s text—when they do not disclose exculpatory

information “to the defense”—they assume the risk that their alternative measures

will be inadequate and that they will be held responsible for their actions.

3. Rule 3.8(e): Childs’s Demotion

The Board concluded that, in addition to respondents’ Rule 3.8(e) violation

with respect to the contents of the Collins Report, they committed another, distinct

Rule 3.8(e) violation by failing to disclose that Childs had been demoted. We

disagree for the simple reason that respondents did disclose that Childs had been

demoted. On the first day of trial, the court asked whether Childs had been “put on

any probationary status,” and Dobbie responded that he had been demoted and she

expected him so to testify.

According to the Board, Dobbie’s statement was inadequate, largely because

it was unaccompanied by two additional disclosures: first, that Childs had filed a

false disciplinary report, and second, that Childs had been separately reprimanded

for his use of force through a Letter of Direction. As we have explained, this latter

fact allows the inference that Childs was demoted for his false reporting. See

Vaughn, 93 A.3d at 1255 & n.20. The Board reasoned that without this additional
44

context, Dobbie’s disclosure of Childs’s demotion was not meaningful in the Brady

and Giglio sense because the significance of the demotion to Childs’s credibility was

not apparent.

That is all fair enough, but these important contextual facts were missing only

because of respondents’ inadequate disclosure of the Collins Report, not their

inadequate disclosure of the fact that Childs had been demoted. Had the Collins

Report or all of the material facts therein been provided to the defense, the defense

would have been able to draw the same inferences Disciplinary Counsel, the Board,

and the Vaughn court did—namely, that Childs was likely demoted for his

dishonesty—and make use of those inferences at trial. It was thus respondents’

failures related to the Collins Report that prevented their disclosure of Childs’s

demotion from being meaningful. Unlike the Board, we do not find two Rule 3.8(e)

violations—one for inadequately disclosing the report and another for inadequately

disclosing the demotion. We instead find one violation: the failure to disclose all

Brady information in the Collins Report. 14

14
For this reason, we decline to pass on the Board’s express factual finding
that respondents knew that Childs had been demoted “because of the conclusions in
the Collins Report, including the false disciplinary charge.”
45

B. Rule 8.4(c)

We agree with the Board that respondents violated Rule 8.4(c) by acting with

reckless dishonesty, although we depart from the Board slightly as to the particulars.

We note at the outset that while we by no means condone respondents’ conduct, we

consider it at the low end of culpability as far as Rule 8.4(c) misconduct goes.

“[C]onduct involving dishonesty” is not a precise standard, but we must draw the

line somewhere. We think a fair reading of our cases constrains us to hold that

respondents crossed that line. But we do not think that respondents acted with the

kind of malign intent often associated with those words. Rather, they were

inexperienced, poorly supervised, and made serious mistakes that we have no reason

to believe they will make again.

Rule 8.4(c) makes it professional misconduct for a lawyer to “[e]ngage in

conduct involving dishonesty, fraud, deceit, or misrepresentation.” Id.

“[D]ishonesty, fraud, deceit, and misrepresentation are four different violations, that

may require different quantums of proof.” In re Romansky (“Romansky I”), 825

A.2d 311, 315 (D.C. 2003). Dishonesty is the most capacious of the four, id., and

the only violation relevant here.

We have explained that sanctionable dishonesty “does not always depend on

a finding of intent to defraud or deceive.” Id. (quoting In re Estate of Corriea, 719
46

A.2d 1234, 1242 (D.C. 1998)). Conduct that demonstrates a “reckless disregard of

the truth” can therefore sustain a charge of dishonesty, In re Ukwu, 926 A.2d 1106,

1113-14 (D.C. 2007), although mere negligence cannot, see In re Romansky

(“Romanksy II”), 938 A.2d 733, 742 (D.C. 2007). Recklessness is a “state of mind

in which a person does not care about the consequences of his or her action.” Id. at

740 (quoting Romansky I, 825 A.2d at 316). “To show recklessness, Bar Counsel

must prove by clear and convincing evidence that [an attorney] ‘consciously

disregarded the risk’” that her conduct was untruthful or that it would lead to a

misapprehension of the truth. Id. (quoting In re Anderson, 778 A.2d at 339).

Whether an attorney’s conduct amounted to recklessness is a legal question, not a

factual one, so this court reviews the Board’s conclusion on the issue de novo.

Romansky II, 938 A.2d at 739.

Romansky II governs our approach to analyzing reckless dishonesty in the

Rule 8.4(c) context. In that case, a law firm partner overcharged several clients for

the firm’s services, using a billing methodology out of step with the engagement

letters the firm had with those clients. 938 A.2d at 736-37. The firm had just

transitioned to a new set of billing practices, and the firm’s agreements with the

clients in question reflected the prior policy. Id. at 736. It was apparent that the

attorney had not overbilled his clients knowingly, but we still had to decide whether

he had acted recklessly and therefore violated Rule 8.4(c). Id. at 740.
47

To answer this question, the court weighed the evidence for and against a

finding of recklessness. In the former camp were the following facts: the attorney

admitted that when he had billed the clients he had not consulted the relevant

engagement letters or even considered whether the firm’s old or new billing policy

applied, despite his awareness of the recent policy change. Id. at 741. He was also

responsible for a disproportionate number of billings at the firm, something that

arguably should have put him on high alert about the need for diligence during a

period of flux. Id. But several pieces of evidence cut the other way. The firm’s

recent change in policy made mistakes more likely, and the billings in question were

sent out shortly after the firm adopted a new model engagement letter implementing

the revised policy—something that could have led the attorney to assume that this

new letter governed billings with the clients in question. Id. And in fact, two

attorneys at the firm testified that these circumstances could have caused confusion

as to what approach to take. Id. In addition, the attorney’s responsibility for a large

number of billings cut both ways: a mistake was simply more likely given his

significant book of business. Id. Finding the evidence “virtually in equipoise,” we

could not “conclude . . . by the requisite ‘clear and convincing’ evidence that the

[attorney] was reckless rather than negligent.” Id. at 742. We therefore held that he

had not violated Rule 8.4(c). Id.
48

Before applying Romansky II here, we must determine what specific conduct

by respondents may have been dishonest. The Board identified respondents’ failure

to include in the motion in limine that Childs had falsely charged an inmate with

assault. We can think of another, better candidate: respondents’ mischaracterization

of the Collins Report’s conclusions in the motion in limine and related decision not

to “conced[e]” that Officer Childs “had made a false and/or misleading statement.”

We do not believe that there is clear and convincing evidence that respondents

acted with reckless dishonesty by omitting from the motion in limine that Childs had

falsely accused an inmate of assault. Dobbie testified that she did not think that this

information needed to be disclosed, and the Hearing Committee and Board did not

make an adverse credibility finding with respect to this testimony. Admittedly, it is

hard to understand how she could have thought that. And if this were the only

evidence before us, we would be hard-pressed to conclude that she had not been

reckless. But there is other evidence we must consider as well. Respondents

attempted—unsuccessfully, as it turned out—to fax the entire Collins Report to the

trial court, which is not the kind of thing one would do if one truly did not care

whether its contents were disclosed. Dobbie also asked the court whether anything

further needed to be disclosed to the defense and testified that she was trying to get

her disclosures correct. There are facts on both sides for Taylor as well. She testified

that she knew that the false assault charge was Brady material, suggesting a higher
49

level of culpability than exists for Dobbie. At the same time, Dobbie, not Taylor,

was the primary drafter of the motion and might therefore reasonably bear more

responsibility for its omissions. Ultimately, we do not perceive any material

difference between the respondents when it comes to culpability. And as to both,

we find ourselves where the Romansky II court did: on the fence between

recklessness and negligence and therefore unwilling to uphold a charge of reckless

dishonesty.

We have no such ambivalence, however, about respondents’ refusal to

concede that Childs had made a false statement and mischaracterization of the

Collins Report’s conclusions. There is simply no justifying the former. As Taylor

testified, at the time respondents filed the motion in limine, they had not reviewed

any of the video or documentary evidence on which the Collins Report was based.

All they had to go on was the report itself and Taylor’s pro forma Giglio interview

with Childs that did not call the Collins Report into question so much as indicate that

Childs was not aware of it. The Collins Report says:

Lieutenant Childs’[s] narrative suggests that at the time of
the incident, inmate Heath was not restrained, displayed
disruptive behavior, and was “kicking at” the canine
causing Lieutenant Childs to use chemical agent to restore
“normal operations.”

Upon review of the facts and circumstances of the
incident, it is evident that Inmate Heath was in restraints
50

and not a threat to “normal operations” when he was
sprayed with chemical agent by Lieutenant Childs.

During his interview with OIA investigators, Lieutenant
Childs stated that the Incident Report he prepared
regarding this matter was incorrect and written in
error. . . .

Lieutenant Childs also composed and submitted a
Disciplinary Report charging inmate Heath with Assault
without Serious Injury and Lack of Cooperation. Video
footage of the incident does not support the allegation that
inmate Heath assaulted any Correctional Officer or canine.

The report does not just explain that Childs made several false or misleading

statements; it says that he admitted to making one of them. We do not understand

how respondents could have read this text and yet refused to concede that Childs had

made a false or misleading statement unless they had some amount of indifference

about whether their motion was truthful. The same is true for their contention that

“[t]he conclusion that Officer Childs made a false or misleading statement is at odds

with the body of the report and does not appear evident from the text of Officer

Childs’[s incident report].” On the contrary, “[t]he conclusion that Officer Childs

made a false or misleading statement” is completely consistent with the body of the

report.

There is not enough evidence going the other way to justify these actions as

anything but reckless. To be sure, the motion in limine does acknowledge one of
51

the Collins Report’s adverse credibility determinations; it just takes issue with the

accuracy of that determination. But that admission does little for respondents.

Although it indicates that they were not entirely hiding the ball with respect to the

contents of the report, it does not ameliorate their disregard for the truth of what

actually happened, given that the only evidence they had for the truth was the report

itself. While respondents’ attempt to disclose the underlying report to the trial court

mitigates any inference of reckless dishonesty with respect to the court, it does not

do so with respect to the defense. Respondents’ stated goal was to keep the Collins

Report from the defense and thereby force the defense to rely entirely on the

government’s summary of the report in the motion in limine. Respondents

succeeded. But as we have explained, the motion in limine both omitted key facts

and put a misleading spin on the facts it included. Respondents therefore exhibited

reckless disregard for whether the defense would ever know the truth about Childs’s

conduct. Turning the report over to the court with the well-founded expectation that

the defense would never see it does not change any of this. 15

15
While we consider respondents’ attempt to provide the Collins Report to
the court in assessing both (1) whether respondents acted with reckless dishonesty
in failing to include Childs’s false assault charge in the motion in limine and
(2) whether they acted with reckless dishonesty by casting doubt on the Collins
Report in that motion, we reach different results in each case due to the balance of
the other evidence. Dobbie’s apparent confusion about the government’s obligation
to disclose the false assault charge mitigates the culpability of her decision not to
52

A final consideration is the conduct of respondents’ superiors, in particular

John Roth, head of the Lewis Committee. Roth cast doubt on the Collins Report’s

findings, stating in an email that he was “[n]ot sure that the DOC conclusion that

[Childs] lied is supported by the record.” Dobbie testified that she was influenced

by Roth’s view when writing the motion. But while Roth’s email indicates that

respondents were not operating in a vacuum, it does little to show that respondents

were not acting recklessly. It is not as though Roth actually told respondents what

representations and arguments to make to the court. Instead, he said he was leaving

it to respondents to “hash . . . out” how to characterize the report.

Respondents hashed things out in a manner ultimately attributable to them.

Dobbie testified that she had conducted a detailed reading of the Collins Report after

receiving Roth’s email and, based on that reading, had decided that she agreed with

Roth. Moreover, it should have been apparent to respondents that Roth had not

viewed any of the evidence on which the Collins Report was based, so his doubts

about what the “record” supported lacked foundation. Nor were the views of senior

attorneys in the U.S. Attorney’s Office in lockstep. In his initial email to the Lewis

include that charge in the motion in limine. There is no similar mitigating fact
related to respondents’ refusal to concede that Childs had made any false or
misleading statement and their assertion that the body of the report did not support
the conclusion that Childs made such a statement. We also find it easier to discern
recklessness with respect to affirmative statements respondents made in the motion,
versus omissions of facts they ought to have included.
53

Committee, on which respondents were copied, Ragsdale said that DOC had

“concluded that [Childs] lied.” We also cannot lose sight of a fundamental point:

respondents were federal prosecutors. They were vested with tremendous authority

and discretion, and that comes with tremendous responsibility for their actions.

Ultimately, we hold that there is clear and convincing evidence that

respondents acted with reckless dishonesty. To illustrate, we return to Romansky II.

At bottom, Romansky II involved an attorney’s failure to verify that his firm’s new

billing practices applied to particular clients. 938 A.2d at 741-42. Respondents

argue that because they carefully reviewed the Collins Report, they are less culpable.

We see things differently. Even after studying the Collins Report, respondents still

wrote a motion that was obviously inaccurate in numerous ways. Their intimate

familiarity with the truth makes it all the more apparent that they disregarded it. The

attorney in Romansky II also made his mistakes at a time when such mistakes were

most likely, because of his firm’s recent changes to its billing practices. 938 A.2d

at 741. There is no reason to believe that respondents suffered from any similarly

understandable confusion; they simply read a report and then wrote a motion about

that report without sufficient regard for whether their motion was accurate. We do

not think the evidence shows that these misrepresentations were willful or

intentional, but it does support the conclusion that they were reckless.
54

C. Rule 8.4(d)

We next affirm the Board’s conclusion that respondents violated Rule 8.4(d),

which makes it professional misconduct for a lawyer to “[e]ngage in conduct that

seriously interferes with the administration of justice.” A Rule 8.4(d) violation

requires three elements: (1) an attorney’s conduct must be “improper,” In re

Hopkins, 677 A.2d 55, 60-61 (D.C. 1996); (2) it must “bear directly upon the judicial

process (i.e., the ‘administration of justice’) with respect to an identifiable case or

tribunal,” id. at 61 (italics omitted); and (3) it must “taint the judicial process in more

than a de minimis way; that is, at least potentially impact upon the process to a

serious and adverse degree,” id. (italics omitted). Rule 8.4(d) does not have a strict

scienter requirement; even conduct “somewhat less blameworthy” than

recklessness—i.e., negligent conduct—can violate it. In re L.R., 640 A.2d 697, 701

(D.C. 1994).

The first two Rule 8.4(d) elements are clearly met. Respondents’ Brady

violation was improper and bore on an identifiable case and tribunal. The disputed

question is whether respondents’ improper conduct bore on the case and tribunal “in

more than a de minimis way.” In re Hopkins, 677 A.2d at 61 (italics omitted). We

conclude that it did.
55

We have often held that conduct that places a more-than-de-minimis burden

on the time and resources of courts and litigants violates Rule 8.4(d). In In re Cole,

967 A.2d 1264 (D.C. 2009), we held that an attorney’s serious neglect of his client’s

case violated Rule 8.4(d) in part because it “led to an unnecessary expenditure of

time and resources by the Immigration Court” and “required successor counsel to

file a new motion, immigration prosecutors to file papers in opposition, the

Immigration Court to prepare a Memorandum of Decision and Order denying the

motion, all parties to prepare appellate documents for filing, and the Board of

Immigration Appeals to draft an opinion.” Id. at 1266. Similarly, in In re Spikes,

881 A.2d 1118 (D.C. 2005), we held that an attorney violated Rule 8.4(d) because

his frivolous defamation actions “waste[d] the time and resources of this court,

delay[ed] the hearing of cases with merit[,] and cause[d] appellees unwarranted

delay and added expense.” Id. at 1127 (quoting Slater v. Biehl, 793 A.2d 1268, 1277

(D.C. 2002)). This was true in substantial part because the motions “necessitated

extensive [additional] briefing” and “additional pleadings.” Id. at 1126-27 (internal

quotation marks omitted); see In re Yelverton, 105 A.3d 413, 427 (D.C. 2014)

(holding that frivolous motions “tainted the judicial process in more than a de

minimis way,” in part because they “required responsive action from both the

Superior Court and this court, as well as from the defendant” (italics omitted)); In re

Pearson, 228 A.3d 417, 426-27 (D.C. 2020) (per curiam) (similar).
56

All the same, not all conduct that “place[s] an unnecessary burden on the

administrative processes” of the judicial system violates Rule 8.4(d). In re

Hallmark, 831 A.2d 366, 375 (D.C. 2003). It is ultimately a “matter of degree.” In

re Yelverton, 105 A.3d at 427. In In re Hallmark, an attorney submitted a late

Criminal Justice Act voucher that “claim[ed] fees in an amount substantially above

the statutory limit without providing supporting information” and then ignored the

presiding judge’s request for more information. 831 A.2d at 369. We held that

although this conduct was “troubling and negligent,” the burden it placed on the

courts and the judge was not “more than . . . de minimis” and “did not seriously and

adversely affect the administration of justice, or [the attorney’s] client.” Id. at

374-75 (italics omitted). We reached a similar conclusion in In re Owusu, 886 A.2d

536 (D.C. 2005), where an attorney did not maintain a current address with the D.C.

Bar and as a result failed to receive notice of and respond to investigative inquiries

from Disciplinary Counsel related to potential neglect of a client. Id. at 539-40.

There, we explained that failing to comply with an administrative requirement such

as maintaining a current address “does not ‘bear directly on the judicial process,’”

id. at 541, or “taint that process ‘to a serious and adverse degree,’” id. at 542 (quoting

In re Hopkins, 677 A.2d at 61).

Respondents’ conduct resulted in a substantial and avoidable use of judicial

time and resources, ultimately resulting in the vacatur of a criminal conviction. It
57

therefore “taint[ed] the judicial process in more than a de minimis way.” In re

Hopkins, 677 A.2d at 61 (italics omitted). As the Hearing Committee recounts, “[i]n

addition to the pre-hearing conference treating the disclosure issue and the trial time

spent renewing and reviewing the Court’s initial determination, there were five post-

conviction hearings in the Superior Court spanning 14 months after the return of the

jury verdicts” as a result of respondents’ actions. Worse yet, several of the Vaughn

defendants received prison sentences—one of whom, Morton, served four years in

prison before his conviction was reversed due to respondents’ Brady violation, after

which he was not retried. The impact on the judicial process, the resources of the

court system, and the lives of the defendants was far greater than that at issue in In

re Hallmark and In re Owusu and much more analogous to that in cases where we

have found Rule 8.4(d) violations, such as In re Cole, In re Spikes, and In re

Yelverton. As in those cases, respondents’ actions resulted in additional pleadings,

briefings, hearings, and ultimately a published opinion from this court in Vaughn.

Respondents’ contrary arguments are not convincing. They largely ignore the

cases establishing that a more-than-de-minimis waste of judicial and litigant time

and resources can give rise to a Rule 8.4(d) violation. They focus instead on a single

quote from In re Alexander, 496 A.2d 244 (D.C. 1985) (per curiam), where the court

stated that Rule 8.4(d)’s predecessor rule, DR 1-102(A)(5), “is purposely broad to

encompass derelictions of attorney conduct considered reprehensible to the practice
58

of law.” Id. at 255. They try to use that quote, along with language from In re

Hallmark and In re Owusu, to argue that Rule 8.4(d) requires culpability amounting

to recklessness at a minimum. Respondents are correct that In re Owusu implies, at

least in the context of abiding by an administrative regulation like maintaining a

current address on file with the Bar, that some degree of recklessness or

intentionality is highly relevant to a Rule 8.4(d) violation, even if not strictly

required. See 886 A.2d at 542 (“[T]he issue would be different if evidence showed

that Owusu had willfully blinded himself to Bar Counsel’s inquiries; under our

decisions, purposefully evading an inquiry by changing address without notifying

the Bar would presumptively, and seriously, affect the disciplinary process. But

there was no proof of deliberate avoidance on Owusu’s part.”). But the court in In

re L.R. rejected a strict recklessness requirement, and In re Owusu does not purport

to abrogate In re L.R., nor could it have. In re L.R., 640 A.2d at 700-01. It is also

relevant that respondents’ conduct did not involve an administrative violation as in

In re Owusu; it involved a Brady violation that, when revealed, resulted in the

reversal of a criminal conviction. Therefore, any elevated scienter requirement we

suggested In re Owusu should not be understood to apply to actions like those of

respondents. In any event, as we have just explained, respondents acted with

reckless dishonesty, so even under a broader reading of In re Owusu it would be

appropriate to find a Rule 8.4(d) violation. Nor are we as confident as are
59

respondents that their Brady violation was not “reprehensible to the practice of law.”

In re Alexander, 496 A.2d at 255.

D. Rule 3.4(d)

The Hearing Committee reasoned that because respondents violated

Rule 3.8(e), they a fortiori violated Rule 3.4(d), which prohibits attorneys from

“fail[ing] to make reasonably diligent efforts to comply with a legally proper

discovery request by an opposing party” in “pretrial procedure.” The Board

disagreed. In its view, the specific governed the general: although Rule 3.8(e)

Brady-type violations are in some basic sense also failures of discovery compliance,

Rule 3.8(e) is directed only at such violations, so it, not Rule 3.4(d), should control.

Disciplinary Counsel did not take exception to the Board’s recommendation on

appeal, so we decline to disturb it. Cf. In re Chapman, 284 A.3d 395, 400-01

(D.C. 2022).

IV. Sanction

We turn last to the issue of the appropriate sanction. The Board recommended

that respondents be suspended for six months, and “[g]enerally speaking, if the

Board’s recommended sanction falls within a wide range of acceptable outcomes, it

will be adopted and imposed.” In re Kline, 113 A.3d at 215 (quoting In re Howes,
60

39 A.3d 1, 13, as amended nunc pro tunc, 52 A.3d 1 (D.C. 2012)). But, as noted,

we will not defer to the Board where doing so “would foster a tendency toward

inconsistent dispositions for comparable conduct or would otherwise be

unwarranted.” D.C. Bar R. XI, § 9(h)(1). Thus, while we always accord respect to

the Board’s recommendation, “the responsibility of ‘imposing sanctions rests with

this court in the first instance.’” In re Chapman, 284 A.3d at 403 (quoting In re

Godette, 919 A.2d 1157, 1164 (D.C. 2007)). In our view, the Board gave

insufficient weight to the significant mitigating circumstances in this case. We thus

adopt the recommended six-month suspension but stay it in favor of a one-year term

of probation.

Our cases set forth seven non-exhaustive factors for consideration when

determining the appropriate sanction for attorney misconduct: (1) the seriousness of

the conduct; (2) the prejudice, if any, to the client; (3) whether the conduct involved

dishonesty; (4) whether the attorney violated other disciplinary rules; (5) the

attorney’s disciplinary history; (6) whether the attorney has acknowledged his or her

wrongful conduct; and (7) any mitigating circumstances. See In re Martin, 67 A.3d

at 1053. Ultimately, “[a]n appropriate sanction is one that is necessary to protect the

public and the courts, maintain the integrity of the profession, and deter other

attorneys from engaging in similar misconduct.” In re Kline, 113 A.3d at 215 n.9.

“In all cases, our purpose in imposing discipline is to serve the public and
61

professional interests . . . rather than to visit punishment upon an attorney.” In re

Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc). Within this general framework,

this court is obligated to treat like cases alike. See D.C. Bar R. XI, § 9(h)(1); In re

Cleaver-Bascombe, 986 A.2d 1191, 1194 (D.C. 2010) (per curiam).

Seriousness of the conduct: Respondents’ conduct was serious. While some

Rule 3.8(e) violations may be more egregious than others, none are trivial. Our

opinion in Vaughn left no doubt about the gravity of what happened here—Brady

violations that led to the reversal of Morton’s criminal conviction. 93 A.3d at 1266.

We are obligated to take Brady violations particularly seriously not only due to their

devastating potential consequences in any given case, but also because Brady

violations are both common and difficult to detect. Kevin C. McMunigal,

Disclosure and Accuracy in the Guilty Plea Process, 40 Hastings L.J. 957, 962 n.22

(1989) (“Brady violations are hard to detect. Unless the defendant somehow

fortuitously learns of the exculpatory information and the prosecution’s possession

of it, a Brady violation will never come to light.”).

Prejudice to the client: A prosecutor’s client is the general public, rather than

any specific government agency or criminal victim. ABA Standards for Criminal

Justice, Prosecutorial Investigations, Standard 1.2(b) (Am. Bar Ass’n 3d ed. 2014).

Any action by a prosecutor that erodes the public’s trust in the criminal justice
62

system’s ability to correctly mete out justice is therefore prejudicial. Respondents’

conduct, which cast doubt on the reliability of that system, thus weighs in favor of a

harsher sanction.

Dishonesty: Respondents’ conduct also involved dishonesty, although we take

a different view of the gravity of that dishonesty for sanctions purposes than the

Board did. As we have explained, several of the assertions respondents made in the

motion in limine evinced a reckless disregard for the defendants’ right to know the

truth about Childs’s conduct and history of dishonesty. That is a serious matter, and

the Board is correct that some of our cases have considered dishonesty a substantial

aggravating factor in the sanctions analysis. See, e.g., In re Howes, 52 A.3d at 22,

25; In re Cleaver-Bascombe, 986 A.2d at 1199-1200.

But In re Howes and In re Cleaver-Bascombe, the cases on which the Board

relies, are different from this case in three ways. First, the attorneys in In re Howes

and In re Cleaver-Bascombe were intentionally dishonest—flagrantly so. In re

Howes, 52 A.3d at 4, 16-18; In re Cleaver-Bascombe, 986 A.2d at 1195-96. They

misused court funds and then affirmatively concealed the misconduct; they were

therefore disbarred. In re Howes, 52 A.3d at 25; In re Cleaver-Bascombe, 986 A.2d

at 1201. Respondents’ dishonesty was quite different. While problematic, their

dishonesty was reckless, not intentionally malicious. Second, the attorneys in In re
63

Howes and In re Cleaver-Bascombe were repeatedly dishonest. See In re Howes, 39

A.3d at 16 (“The nature of a case is made more egregious by repeated violation of a

rule prohibiting dishonest conduct.”). In In re Cleaver-Bascombe, the attorney

submitted a false voucher and then “exacerbated the misconduct with false testimony

at the [disciplinary] hearing.” 986 A.2d at 1198. The attorney in In re Howes

wrongfully distributed more than $42,000 worth of witness vouchers in multiple

felony prosecutions over the course of two years. 39 A.3d at 4-6. Here, on the other

hand, respondents’ dishonesty was confined to one isolated case. Third, in In re

Howes and In re Cleaver-Bascombe, the court was focused on the need “to deter

other attorneys from engaging in similar misconduct.” In re Cleaver-Bascombe, 986

A.2d at 1199-1200 (quoting In re Reback, 513 A.2d at 231); see In re Howes, 52

A.3d at 22. Here, it is worth nothing that the U.S. Attorney’s Office overhauled their

approach to Brady after Vaughn in order to prevent incidents like this, thereby

providing important deterrence outside of the disciplinary context.

Accordingly, while dishonesty factors into our analysis, we do not think it

requires the kind of upward adjustment the Board recommended.

Violation of other disciplinary rules: The “violation of other disciplinary

rules” prong of the analysis considers how many rules were violated. Respondents

violated three: Rules 3.8(e), 8.4(c), and 8.4(d). But because all of the violations in
64

this case arose out of essentially the same conduct, we do not think this factor weighs

heavily here.

Disciplinary history and acknowledgment of wrongdoing: Neither Dobbie nor

Taylor has any prior disciplinary history, and they both have acknowledged the

wrongfulness of their conduct to the extent consistent with mounting a robust

defense in a difficult case. We have “recognize[d] that an attorney has a right to

defend himself and we expect that most lawyers will do so vigorously, to protect

their reputation and license to practice law.” In re Yelverton, 105 A.3d at 430. It

would not be appropriate to hold respondents’ exercise of that right against them

where, as here, respondents admitted that they had made mistakes and stated again

and again that they would do things differently if given the opportunity.

Mitigating circumstances: We identify one overriding mitigating

circumstance: the deficient conduct of respondents’ supervisors, John Roth and

Jeffrey Ragsdale, in their oversight of this case. Roth erred in at least two ways.

First, as head of the Lewis Committee, it was his responsibility to ensure that the

committee acted expeditiously and gave respondents ample opportunity to carefully

execute its decisions. The committee did not do so here. Respondents and Ragsdale

brought the Childs matter to the committee’s attention on September 29. Several

weeks later, having heard nothing, respondents prevailed on Ragsdale to follow up.
65

Only after another week had passed, on October 21, did Roth respond with the

committee’s decision. At this point, the trial was less than two weeks away. Even

if the guidance Roth ultimately provided had been careful and useful—to be clear, it

was neither—he still left the case team in the lurch for nearly a month while the

credibility of one of its key witnesses was in question and trial was fast

approaching. 16

Roth also made a mistake by expressing unsubstantiated skepticism about the

Collins Report’s conclusions—skepticism that found its way into respondents’

motion in limine. As noted, he told respondents: “My personal opinion is that the

officer’s written report is simply unclear, and the officer attempted to clear it up in

his interview. Not sure that the DOC conclusion that he lied is supported by the

record, but I will leave it to you folks to hash that out.” But it bears repeating—Roth

had no record before him against which to evaluate the Collins Report’s findings and

conclusions. Childs’s incident report was not “simply unclear” in its charge that

Heath had behaved in a “violent/disruptive” manner. It was, in fact, inaccurate.

16
We agree with the dissent that the Lewis Committee is “not a Brady
committee,” and that the Lewis Committee’s inquiry is not co-extensive with that
required by Brady. See infra page 76. However, we also see the Lewis Committee’s
long delay as one more example of the U.S. Attorney’s systemic failure to adequately
supervise its young prosecutors. The Committee’s delay did play a role in the
decisions these prosecutors made, and we therefore find it to be a mitigating
circumstance.
66

There is also no valid argument that Childs’s false disciplinary report was merely

unclear, because no portion of that report was included in the Collins Report. While

we ultimately must hold respondents accountable for their actions—they are the sole

signatories of the motion in limine—we find it significant that Roth’s inaccurate

framing of the matter informed the motion in limine.

Ragsdale, too, played a role in this case going awry. While there was some

dispute among members of the Hearing Committee on this score, we think

substantial evidence supports the conclusion that Ragsdale directed respondents to

proceed ex parte, thereby disclosing the Collins Report only to the court and not to

the defense. This was a regrettable instruction. We see no reason why disclosing

the report to the defense subject to a protective order would not have adequately

addressed the government’s security or personnel concerns. Ragsdale thus advised

respondents to take a risky strategy in a case that did not demand it. After doing so,

he did not appear to exercise further oversight to ensure that respondents

nevertheless made all required disclosures. To be sure, respondents are ultimately

responsible for their own decisions. But their supervisors did them no favors, and

their sanction should reflect as much.

We are also guided by the imperative to avoid “inconsistent dispositions for

comparable conduct.” D.C. Bar R. XI, § 9(h)(1). We are aware of only three
67

Rule 3.8(e) cases apart from this one. One of those, In re Howes, is inapposite and

involved an extensive pattern of more egregious conduct than that at issue here. 52

A.3d at 5-8. The other two are In re Kline and In re Cockburn, Bar Docket

No. 2009-D185 (Letter of Informal Admonition), the latter of which did not result

in a published opinion from this court. In re Kline is thus the most relevant

precedent.

Kline violated Rule 3.8(e) only, and the Board recommended a 30-day

suspension. In re Kline, 113 A.3d at 215. After looking at cases from other

jurisdictions, this court identified the range of sanctions “that generally would be

appropriate” for such conduct to be anything from a public reprimand to a six-month

suspension. Id. Although a 30-day suspension fell within that band, the violation in

In re Kline rested on an issue regarding the proper understanding of Rule 3.8(e) that

had generated “a great deal of confusion” in the legal community. Id. Specifically,

Kline had not actually violated Brady, because to violate Brady a prosecutor must

withhold information that is “material” to guilt or innocence, and the information

Kline withheld was not. Id. at 206-07, 215-16. Before In re Kline, it was widely

assumed that Brady’s materiality requirement also applied to Rule 3.8(e). Id. at

215-16. In In re Kline itself, we held the opposite. Id. But because we were

clarifying the law for the first time, we felt it unfair to penalize Kline for his “wrong”
68

but “not unreasonable” understanding of Rule 3.8(e)’s requirements and therefore

imposed no sanction. Id. at 216.

Determining the appropriate sanction requires balancing a wide array of

competing interests and factors. As the preceding paragraphs make clear, various

considerations cut both in favor of and against a harsh penalty. The Board’s

recommended six-month suspension accounts for these considerations—and we owe

deference to that determination. At the same time, the respondents here have clean

disciplinary slates and committed the relevant violations due in large part to the

collective action and inaction of members of their office. Our responsibility to

properly sanction their wrongdoing and deter future misconduct is moderated by the

knowledge that they are not solely responsible for the disciplinary infractions in

question. 17

17
In this way, respondents are different from, for example, a solo practitioner
who recklessly misappropriates client funds. See, e.g., In re Gray, 224 A.3d 1222,
1234-35 (D.C. 2020). By definition, solo practitioners are solely responsible for
disciplinary infractions they commit. We therefore disagree with the dissent’s
argument that our decision today is necessarily inconsistent with the harsh sanctions
we routinely issue in misappropriation cases. It is true that, “in virtually all cases of
misappropriation, disbarment will be the only appropriate sanction.” In re Addams,
579 A.2d 190, 191 (D.C. 1990) (en banc). But it is also true that (1) this practice is
common nationwide, see State ex rel. Couns. for Discipline of Neb. Sup. Ct. v.
Nimmer, 916 N.W.2d 732, 750 (Neb. 2018), and (2) an outsized number of our
misappropriation cases concern solo practitioners, see, e.g., In re Gray, 224 A.3d at
1225, 1235 (D.C. 2020) (disbarring solo practitioner for misappropriating client
69

For these reasons, we conclude that a six-month suspension, stayed in favor

of a one-year probationary period, is warranted. The length of the suspension

reflects the gravity of the violation, while the stay acknowledges that the respondents

should not, and probably do not, shoulder full responsibility. We believe that this

result strikes the proper—though nuanced—balance that this case requires.

Stays of suspensions are typically reserved for situations where attorneys

commit clearly sanctionable conduct, but under circumstances that explain or blunt

their culpability. See, e.g., In re Peek, 565 A.2d 627, 631-34 (D.C. 1989)

(concluding that the attorney’s clinical depression was causally connected to his

misconduct and therefore a sufficient mitigating factor to warrant a stay); In re

funds), In re Edwards, 990 A.2d 501, 524, 530 (D.C. 2010) (same), In re Cloud, 939
A.2d 653, 658, 664 (D.C. 2007) (same), In re Berryman, 764 A.2d 760, 761, 774
(D.C. 2000) (same), In re Marshall, 762 A.2d 530, 531, 540 (D.C. 2000) (same).
Because solo practitioners do not have the same checks on their conduct that lawyers
(public and private) have in larger organizations, it is especially difficult for this
court to ensure that violations will not recur. Compare In re Hessler, 549 A.2d 700,
716 (D.C. 1988) (holding that an attorney’s misappropriation of client funds “may
have been influenced in part by the fact that he was . . . a sole practitioner,” and the
fact that he “is now associated with a firm where he is not directly responsible for
client funds . . . suggests that similar misconduct will not occur in the future”), with
In re Ekekwe-Kauffman, 267 A.3d 1074, 1082 (D.C. 2022) (disbarring a solo
practitioner who had repeatedly misappropriated client funds and “did not
meaningfully change her accounting practices to prevent future misappropriations.”)
A law firm or government entity, on the other hand, can prevent future negligent
infractions by firing attorneys for intentional misconduct and reforming their
policies (as the U.S. Attorney’s Office did here). Thus, although this court is
obligated to treat like disciplinary cases alike, this case is simply not like that of a
solo practitioner who misappropriates client funds. D.C. Bar R. XI, § 9(h)(1).
70

Mooers, 910 A.2d 1046, 1046-47 (D.C. 2006) (similar). Cf. In re Pearson, 228 A.3d

at 428 (declining to impose a stay, even where the Hearing Committee had

recommended one, because the sanctions factors were generally aggravating).

While stays are an established mechanism in the disciplinary context, see, e.g.,

In re Johnson, 158 A.3d 913 (D.C. 2017), we recognize that they are usually

imposed pursuant to the Board’s recommendation. Even so, we have previously

exercised our discretion to implement stays that depart from the Board’s guidance.

For example, in In re Askew, 96 A.3d 52 (D.C. 2014), the Board (and the Hearing

Committee) had recommended that we issue a 30-day suspension stayed in favor of

a one-year term of probation. Id. at 54. Neither Askew nor Disciplinary Counsel

filed exceptions to the Board’s recommendation. Id. But rather than approve the

uncontested recommendation, we concluded that such a sanction was “inadequate”

and elected to suspend Askew for six months, with all but 60 days stayed. 18 Id. at

59, 62.

18
As the body with ultimate disciplinary decision-making authority, we also
have discretion to implement or modify probationary periods as part of an attorney’s
sanction. See D.C. Bar R. XI, § 3(a)(7) (“Probation may be imposed in lieu of or in
addition to any other disciplinary sanction.”); In re Adams, 191 A.3d 1114, 1118,
1123 (D.C. 2018) (extending an attorney’s probationary period to 18 months, despite
the Board’s recommendation that the probation only last one year).
71

Because we believe that the Board’s recommendation in this case similarly

does not fairly account for all of the relevant considerations, we conclude that a stay

of respondents’ suspensions—subject to probationary requirements—is appropriate.

For the duration of the one-year probationary period, respondents must refrain

from committing any crimes or violating any further Rules of Professional Conduct.

In the event that either respondent fails to comply, that respondent’s six-month

suspension will take effect from the date of noncompliance.

V. Conclusion

For the foregoing reasons, Mary Chris Dobbie and Reagan Taylor are hereby

suspended from the practice of law in the District of Columbia for six months, stayed

as to all in favor of a one-year term of probation.

So ordered.
72

DEAHL, Associate Judge, dissenting: Carl Morton and Alonzo Vaughn were

each sentenced to seven years’ imprisonment after being convicted for attacking a

fellow inmate and a corrections officer who came to his aid. They did not know at

the time of trial that Officer Angelo Childs, one of two witnesses who identified

them as the culprits based on grainy and choppy surveillance footage, had very

recently been caught falsely implicating another inmate in an assault, as detailed in

the “Collins Report.” 1 The reason they did not know that is that their prosecutors

and the respondents before us—Mary Chris Dobbie and Reagan Taylor—failed to

disclose this critical fact, in violation of their clear constitutional obligations to do

so. See Vaughn v. United States, 93 A.3d 1237, 1266 (D.C. 2014) (disclosure

“should not have been a hard call”); Brady v. Maryland, 373 U.S. 83, 87 (1963).

In more detail, the respondents (1) affirmatively misrepresented the Collins

Report’s contents to the defense in their motion in limine, omitting its most

important finding (that Officer Childs, in coordination with other officers, falsely

implicated another inmate in an assault); (2) purported to turn over the entire report

to the trial judge for ex parte review, but in reality submitted an incomplete report

missing the same exculpatory evidence that they failed to summarize in their motion

in limine (the relevant passages cut off by a claimed “faxing error”); and (3) assured

1
Benjamin Collins was an investigator for the Department of Corrections
Office of Internal Affairs asked to investigate Childs’s potential misconduct.
73

the trial judge, when he noted that he seemed to be missing key pages, that he had

the Collins Report in its entirety. I agree with my colleagues that Dobbie and Taylor

thereby violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of Columbia Rules of

Professional Conduct.

I do not agree with my colleagues that a six month suspension from the

practice of law is too harsh a sanction for their misconduct. The nine members of

the District’s Board on Professional Responsibility unanimously recommended a six

month suspension after carefully considering Dobbie and Taylor’s misconduct and

weighing its seriousness. Not only is that recommendation “within the wide range

of acceptable outcomes” that we are bound to defer to, In re Ekekwe-Kauffman, 210

A.3d 775, 797 (D.C. 2019) (quoting In re Martin, 67 A.3d 1032, 1053 (D.C. 2013)),

in my view it was based on a charitable construction of the facts under which a six

month suspension remains on the more lenient side of an acceptable sanction.

The majority notes just “one overriding mitigating circumstance” driving its

departure from the Board’s recommendation: respondents’ supervisors “did them no

favors.” Supra at 64, 66. I disagree. Those supervisors did respondents the favor

of telling them to disclose the Collins Report’s contents to the defense. If

respondents had abided that direction they would not be before us today. Lost in the

majority’s discussion of the supervisors’ failings is the simple fact that nobody
74

advised Dobbie and Taylor to commit any of the misconduct underlying their

disciplinary infractions. Nobody advised them to conceal the exculpatory evidence.

Nobody told them to misrepresent the Collins Report’s contents in their motion in

limine or to provide the trial judge with only a partial report that omitted the same

critical portions they neglected to summarize in their motion. And nobody told them

to falsely assure the judge that he had the entire report when he correctly flagged

that portions were missing. Had any of that advice been offered, no fit prosecutor

would have followed it. So I do not share my colleagues’ view that it is really the

supervisors who are largely to blame here, and the limited blame that can fairly be

attributed to them does not mitigate respondents’ culpability in any event.

Dobbie and Taylor should face real consequences for their actions—Morton

certainly did when he spent more than four years imprisoned for offenses that the

government would not even retry him for once respondents’ Brady violations came

to light. The majority instead, after paying repeated lip service to the severity of

respondents’ misconduct, doles out a probationary sanction directing them to

“refrain from committing any crimes or violating any further Rules of Professional

Conduct” for a year. That slap on the wrist does not adequately reflect the

seriousness of respondents’ misconduct here, nor does it adequately protect future

criminal defendants from meeting a fate similar to Morton’s.
75

Finally, I am troubled by what the majority’s opinion reveals about this court’s

values when policing the District’s bar. As a court, we almost invariably disbar

attorneys who have engaged in even the slightest reckless or intentional

misappropriation of client funds. In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en

banc). Even negligent misappropriation will result in “the usual sanction” of a six

month suspension from the practice of law. In re Greenwald, 926 A.2d 169, 171

(D.C. 2007). That is too harsh a result, the majority concludes, when prosecutors

intentionally suppress evidence in violation of the Constitution and thereby secure

felony convictions resulting in years of unjust imprisonment. I disagree and dissent.

I. The Recommended Sanction Is Appropriate

A. The Majority Misallocates Blame for the Misconduct

The most critical points of departure between the majority and I are that I do

not believe Dobbie and Taylor’s supervisors, John Roth and Jeffrey Ragsdale, are

largely to blame here. Nor do I think the failings of those supervisors mitigate

Dobbie and Taylor’s own wrongdoing. Those supervisors’ failings, thoroughly

accounted for in the Board’s report, are not an “overriding mitigating circumstance”

that justifies departing from the Board’s recommended sanction. I will discuss the

relative culpability of the supervisors and the respondents in turn.
76

Roth Cannot Be Scapegoated

I begin with Roth, to whom the majority assigns an outsized portion of the

blame due to two purported failings: (1) his Lewis committee took too long to advise

respondents on whether they could call Officer Childs as a witness, and (2) he

expressed “unsubstantiated skepticism” about the Collins Report. Supra at 65-66.

It should be noted up front that Roth was never even asked to advise on whether the

Collins Report’s contents should be turned over to the defense, but he nonetheless

offered one piece of advice on that front: “disclose” it. As the Board accurately

recounted, that meant “disclose the information in the Collins Report to the defense.”

(emphasis added). I fail to see how Roth bears any share of the blame for Brady

violations stemming from respondents’ failures to do precisely what he gratuitously

advised. If Dobbie and Taylor had heeded Roth’s advice, they would not be here.

Let me next be clear on what the Lewis committee is and what it is not, because

it underscores why I think the majority is mistaken to belabor its delays. The Lewis

committee advises on whether the government should even call a particular witness

in its case, or if instead the witness’s credibility issues are so severe that the

government will not even have them take the stand. But it is emphatically not a

Brady committee asked for advice on what evidence should be turned over to the

defense. There can be oodles of clear and obvious Brady material impeaching a
77

government witness whom the government nonetheless chooses to have testify. If

there is evidence so damning that prosecutors have to ask if they can even call the

witness to the stand, they already have the answer to any Brady question: that

evidence needs to be turned over to the defense. The Lewis committee’s delayed

advice on whether Dobbie and Taylor should sponsor Childs as a witness was thus

irrelevant to their Brady violations. They were not thrust into any “lurch” by the

committee’s delays, as the majority posits, because they were constitutionally

required to turn the Collins Report over to the defense no matter what the Lewis

committee advised. 2

It was in fact improper for Dobbie and Taylor to even wait for the Lewis

committee’s advice before turning over the Brady material. Brady requires

disclosures to be made “at the earliest feasible opportunity.” See Miller v. United

States, 14 A.3d 1094, 1108 (D.C. 2011) (citation omitted). We have emphasized

2
That would be true even if, counterfactually, Dobbie and Taylor had
ultimately o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9907851. Public record. Not legal advice.