The Supreme Court of Virginia unanimously affirmed the two-year license suspension of Joseph Willis Lee, III, a prosecutor found to have knowingly withheld exculpatory evidence from a criminal defendant.
The case arose from the prosecution of Rayshawn Scott, whose cousin Shaquille Scott testified against him at trial. Lee had offered Shaquille a reduction of his felony charge to a misdemeanor in exchange for that testimony, which Brady v. Maryland required Lee to disclose to the defense. Lee never disclosed it. Shaquille was the only witness placing Rayshawn at the crime scene, and Rayshawn’s conviction was later vacated on Brady grounds.
After the Virginia State Bar investigated and a subcommittee certified the ethics complaint, a three-judge circuit court held a two-day trial. Multiple attorneys involved in the underlying cases testified credibly and consistently that the deal existed; Lee denied it, and the court found his denials not credible. The court concluded by clear and convincing evidence that Lee violated Disciplinary Rule 3.8(d). At the sanctions phase, the court learned that Lee had a prior disciplinary record for the same type of misconduct—withholding exculpatory evidence—and imposed a two-year suspension.
On appeal, Lee raised two arguments. First, he claimed that the subcommittee’s certification was tainted because the investigative file happened to mention his prior discipline, which he said the subcommittee should not have seen during the charging stage. The Supreme Court applied harmless-error analysis, reasoning that even if the subcommittee’s process was flawed, the circuit court conducted a full de novo trial untouched by that error. The Court analogized the situation to a defective grand jury indictment followed by a valid petit jury conviction. Specifically, the later, more rigorous proceeding cures any earlier irregularity. (This approach also allowed the Court to sidestep several subsidiary questions about the meaning of “Disciplinary Record” under the rules, the proper timing for subcommittee review, and whether a circuit court can even dismiss a subcommittee certification.)
Second, Lee argued that the trial judge in Rayshawn’s criminal case had effectively exonerated him by stating that Lee did nothing purposefully wrong and expressing “great respect” for him. The Supreme Court found this unpersuasive. It noted that the trial judge’s remarks were dicta as to the Brady ruling because Brady does not require intentional wrongdoing, and that, regardless of their context, one judge’s observations cannot serve as irrefutable proof of innocence in a separate disciplinary proceeding governed by its own evidentiary record. Lee had not invoked any preclusion doctrine, such as res judicata, collateral estoppel, or the like, that might give those findings binding effect, so his sufficiency challenge failed.
A Virginia Appellate Law Blog 