Former Cuyahoga County Assistant District Attorney Aaron Brockler violated ethical rules by using a fake Facebook profile and fake identity that he created to try to convince a defense witness not to testify on her boyfriend’s behalf.
What’s the appropriate sanction for a prosecutor who lies to try to convince an alibi witness to change her story? According to the Ohio Supreme Court, a slap on the wrist.
The Court recently upheld a suspended punishment for former Brockler after he was deemed to have violated the state’s ethical rules. The suspended punishment means that as long as Brockler doesn’t get caught in further ethical violations, he’ll be able to practice law without facing a single day of actual suspension. (If he is found violating again, he will be subject to a suspension of one year.)
This disciplinary proceeding arose from Brockler’s 2013 prosecution of Michael Dunn for homicide charges. Dunn provided an alibi for the time of the murder, stating that he was at the beach with his girlfriend, Sarah Mosser, and another friend, Marquita Lewis. ADA Brockler continued to prosecute Dunn because he did not believe the alibi. He attempted to speak to Mosser and Lewis several times, but when Brockler identified himself as a prosecutor in the case they refused to speak to him. Brockler concocted a plan to try to get information from one of the witnesses and to convince her to change her story.
Brockler developed the idea to trick the alibi witnesses while he was listening to Dunn’s prison telephone calls. On one call, Mosser and Dunn were arguing about Dunn’s possible infidelities with another woman, and Brockler saw an opportunity. First, Brockler created a fake Facebook page for “Taisha Little” that he populated with information he obtained from the phone calls. He took a picture of an African American woman from the Internet, added friends to the account from Dunn’s social circle, then contacted Mosser and Lewis through the account. Posing as Little, Brockler tried to convince Mosser that Dunn had cheated on her and fathered a child with Little. Brockler’s fake “Taisha Little” persona wanted Dunn to get out of jail so that he could pay child support and pressed Mosser about the alibi to see if she could get him out.
Dunn would later admit he did this to try to make Mosser hate Dunn and stop supporting him. After several conversations, Brockler deleted the account. But before doing so he took printouts of part of the conversations where Mosser equivocated in her support, saying that she would not support Dunn if he was cheating on her. Brockler showed those handpicked sections of the conversation to Dunn’s attorney one week prior to trial. The defense attorney waived Dunn’s right to a speedy trial and requested an adjournment, in the belief that the alibi defense was no longer viable.
Brockler’s deception came to light when Dunn’s defense attorney subpoenaed Facebook records in an attempt to find Taisha Little, and discovered the account was created from an IP address originating in the Cuyahoga County District Attorney’s office. Brockler was ultimately forced to come clean and admit he was actually the woman doing the tampering. He was fired by the office, and the case was transferred to the State Attorney General’s office since Brockler had made himself a witness in the case.
Brockler’s actions reveal a troubling desire to obtain a conviction by any means. Brockler stated in an interview shortly after being fired that these kind of “ruses” by the prosecution happened all the time, and thus his firing was an overreaction. Once caught, he justified his actions by saying he was certain of Dunn’s guilt and had promised the victim’s family justice.
It appears that Brockler believed he was better equipped at determining guilt and innocence than the courts or a jury, and once he was certain of Dunn’s guilt, Brockler believed that any action was acceptable to put him behind bars.
What is most troubling in this situation is that Dunn attempted to influence a key witness. He did not simply use a fake Facebook page try to obtain more information through “a ruse,” as he described it. Instead Brockler lied to a key witness in an attempt to get her to change her account of the facts. Brockler pretended that Dunn had an affair so that Mosser would become upset with him and stop agreeing to be a witness. And this witness tampering resulted in essentially no punishment at all. If a defendant, or a defense attorney, had posed as an individual and contacted a prosecution witness under false pretenses they would rightfully face charges for obstructing justice or witness tampering. In Ohio, those charges are classified as a Felony in the Third Degree and carry a possible penalty of one to five years incarceration. Yet somehow a prosecutor, who is entrusted with incredible power, received the equivalent of a verbal reprimand.
There is some hope of courts taking such breaches seriously. Three Justices dissented from the majority’s disciplinary opinion and stated an indefinite suspension from the practice of law was the appropriate sanction. Justice Terrence O’Donnell commented on Brockler’s “glaring disdain for the ethical obligations this court imposes on all who practice law.” He also dismissed Brockler’s excuses of lying in order to find the truth as running counter to the law, saying that “there is no separate code of conduct that prosecutors alone get to play by.” The dissenting judge also highlighted numerous cases were similar actions by an attorney in a civil case that led to significantly more serious sanctions. As Justice O’Donnell pointed out, it is an absurd result when a private attorney dealing with monetary damages is punished more severely for identical conduct than a prosecutor, who is a public servant, and has enormous discretion in making charging decision that will impact an individual’s life.
Unless and until courts begin taking misconduct such as this seriously, prosecutors can continue to act unethically with few repercussions. Brockler’s actions and lack of consequences reveal exactly why the United States has such high rates of wrongful convictions.