You are on page 1of 2

EvidenceProf Blog

Thursday, March 17, 2016

Supreme Court of Ohio Gives Slap of the Wrist to Prosecutor Who Catshed Alibi Witnesses
By Evidence ProfBlogger
I tweeted about the Brockler case yesterday. The only thing more surprising than the shocking misconduct of the prosecutor being "disciplined" is the way in which he was
"disciplined" by the court. So, what were the exact facts of the case?
Assistant Cuyahoga County prosecutor Aaron James Brockler chargedDamon Dunn with murder based upon the shooting death of Kenneth "Blue" Adams. BrocklerDunn denied
any involvement and instead claimed "that at the time of the murder, he was with his girlfriend, Sarah Mossor, and her friend Marquita Lewis."
During his investigation,Brockler "listened to a recording of a heated conversation in which Dunn and Mossor argued over Dunns fear that Mossor would not be a reliable witness
and Mossors belief that Dunn had not been faithful to her."Specically, "Mossor suspected that Dunn had had a romantic relationship with a woman named 'Taisha.'"As a result,
"Brockler saw an opportunity to exploit her feelings of distrust and get her to recant her support for Dunn."So, what did he do?

Recalling a Facebook ruse he had used in a prior case, Brockler planned to create a ctitious Facebook identity to contact Mossor. He attempted
to obtain assistance from several Cleveland police detectives and the chief investigator in the prosecutors ofce, but they were not available.
Believing that time was of the essence, Brockler decided to proceed with the Facebook ruse on his own approximately one hour after he heard the
recording of Mossor and Dunns conversation. He created a Facebook account using the pseudonym "Taisha Little," a photograph of an AfricanAmerican female that he downloaded from the Internet, and information that he gleaned from Dunns jailhouse telephone calls. He also added
pictures, group afliations, and friends he selected based on Dunns telephone calls and Facebook page.
Posing as Little, Brockler simultaneously contacted Mossor and Lewis in separate Facebook chats. He falsely represented that Little had been
involved with Dunn, that she had an 18-month-old child with him, and that she needed him to be released from jail so that he could provide child
support. He also discussed Dunns alibi as though it were false in an attempt to get Mossor and Lewis to admit that they were lying for Dunn (or
would lie for him in the future) and to convince them to speak with the prosecutor.
After chatting for several hours, Brockler sensed that Mossor and Lewis were suspicious, so he shut down the chat and deleted the ctitious
account. He testied that he printed copies of the chats and placed them in a lewith the intent to provide copies to defense counselbefore he
deleted the account, but those copies were never found. He attended ve pretrial conferences from January through April 2013 but did not disclose
the circumstances or content of his conversations with Mossor or Lewis.
Brockler then took an extended medical leave, so the case was given to a second prosecutor; Brockler told him

that he might need to be a witness at trial because both Mossor and Lewis had told him they would not support Dunns alibi, although they were
afraid to say so in court. Brockler did not disclose how he obtained that information.
Thereafter, a police detective uncovered a transcript of Lewis's chat with "Taisha Little," and the new prosecutor showed it to Brockler. Brockler then waited three weeks before
admitting that he was "Taisha Little," leading to his ring.
Given the above, you might have expected Brockler to be apologetic; instead, he wasrecalcitrant. Brockler gave interviews in which he claimed that

(1) prosecutors have long engaged in ruses to obtain the truth, (2) his ring was an overreaction because he only did what the police should have
done, (3) he engaged in an investigative ruse to uncover the truth and keep a murderer behind bars, (4) the public was better off because of his
actions, (5) if he had not taken these actions, a murderer might be walking the streets, (6) he promised the victims mother that he would not let a
horrible killer walk out of the courthouse to kill someone else, and (7) McGinty chose to follow the technical rules of ethics, while he chose to protect
the public.
Later, Brockler continued to maintain that his conduct was ethical, acknowledging that his conduct violated the letter of the law, but claiming that there should be an exception for
"prosecutorial investigation deception."
The Board of Professional Conduct disagreed with Brockler but merely "recommended that he be suspended for one year, fully stayed on conditions."The Supreme Court of Ohio
later agreed, nding that "the misconduct was an isolated incident in an otherwise notable legal career."In other words, unless Brockler does something else wrong, he will not be
suspended.
I fundamentally disagree with the Supreme Court of Ohio, and so did Judge O'Donnell, who dissented with the following one sentence opinion: "Respondent engaged in
unacceptable dishonest conduct that materially aected the administration of justice, and I would impose an indenite suspension."
I will add that Brockler himself admitted that this wasn't a one time thing; instead, he said that he had previously used the Facebook ruse in "a prior case." Moreover, it's not as if
Brockler acknowledged his serious error in judgment and immediately made amends. Instead, he rst covered up his actions and later claimed that they were justiable and
commonplace. To me, this justied a lengthy suspension, maybe even disbarment.
-CM
http://lawprofessors.typepad.com/evidenceprof/2016/03/i-tweeted-about-the-brockleryesterday.html
Copyright 2004-2016 by Law Professor Blogs, LLC. All rights reserved.

You might also like