The supreme court holds that a prosecutor’s duty to disclose information to the defense under SCR 20:3.8(f)(1) does not impose a broader duty to disclose than the constitutional duty imposed under Brady v. Maryland, 373 U.S. 83 (1963). OLR argued in favor of a broad construction based on the rule’s lack of a “materiality” standard like that found in Brady and on an opinion of the ABA’s Committee on Legal Ethics and Professional Responsibility (Formal Op. 09-454 (2009)) regarding the scope of the Model Rule of Professional Conduct on which SCR 20:3.8(f)(1) is based. The court rejects OLR’s interpretation because it would impose inconsistent disclosure obligations on prosecutors, which would generate confusion and “too easily devolve into a trap for the unwary.” (¶35).
¶36 Under conflicting standards, prosecutors would face uncertainty as to how to proceed and could face professional discipline for failing to disclose evidence even when applicable constitutional law does not require disclosure of the same evidence. The practical effect——disclosing evidence to avoid disciplinary sanctions——could effectively expand the scope of discovery currently required of prosecutors in criminal cases …. A broader interpretation also invites the use of the ethics rule as a tactical weapon in litigation, contrary to our stated intent in SCR Chapter 20 (Preamble, cmt. 20). What better way to interfere with law enforcement efforts than to threaten a prosecutor with a bar complaint? …. Prosecutors should not be subjected to disciplinary proceedings for complying with legal disclosure obligations. We thus construe the ethical mandate of SCR 20:3.8(f)(1) in a manner consistent with the scope of disclosure required by the United States Constitution, federal or Wisconsin statutes, and court rules of procedure.
The court goes on to find the prosecutor did not violate 20:3.8(f)(1) in the way she handled the disclosure of information concerning the prosecution of Tyrone Smith, who was charged with drug possession after a stop of his car. Shortly after the incident a passenger in the car, Isaiah Simpson, came forward and said the drugs were his, not Smith’s. Smith’s lawyer knew about Simpson early on because Simpson testified at a hearing to revoke Smith’s ES (the ALJ found Simpson credible and refused to revoke). Smith’s lawyer took a statement from Simpson, which he disclosed to the DA when he named Simpson on his witness list. Smith’s lawyer didn’t know that shortly after the revocation hearing Simpson had also confessed to the DA, who passed the information on to Riek. But Riek didn’t disclose that information to Smith’s lawyer until four days before trial. On the morning of trial, Riek had Simpson interviewed by police, and after he said again that the drugs were his, not Smith’s, Riek dismissed the case. (¶¶4-19).
On these facts, even if Riek’s disclosure of Simpson’s statement to the DA’s office was arguably untimely, the evidence was not “material” to the outcome of Smith’s case because there is no reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The defense knew about Simpson’s confession five months before trial, Simpson repeated his statement to at least five different people, and Riek did disclose the information in the state’s possession before trial and ultimately dismissed the case after Simpson confirmed the drugs were his. (¶¶38-41).
Nor did Riek’s conduct violate § 971.23(1):
¶44 The record is devoid of evidence that Attorney Riek’s alleged delay in producing the Simpson Note and disclosing the fact of Simpson’s discussion with D.A. Nieskes was intentional or done for any strategic purpose. Mindful of the voluminous caseloads managed by most prosecutors, we are unwilling to rule that Attorney Riek’s disclosure of essentially duplicative information four days in advance of an apparently routine marijuana possession case ran afoul of her ethical and procedural obligations as a prosecutor.
¶45 We note, moreover, that even where a prosecutor does fail to disclose exculpatory evidence in violation of Brady, a single inadvertent failure does not necessarily constitute an ethical violation. Negligence and ethical misconduct are not necessarily synonymous. Most courts and official ABA policy agree that a single instance of “ordinary negligence” may trigger other adverse consequences and possible sanctions but does not usually constitute a disciplinary violation warranting public discipline. … Prosecutors should certainly be mindful of their disclosure obligations, but the possibility of a grievance proceeding should not permeate every discovery dispute in criminal cases….