Brady v. Maryland, 373 U.S. 83, 87 (83 S.Ct. 1194,
10 L.Ed.2d 215) (1963), the United States Supreme Court held
that "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution." Consistent with Brady,
Georgia Rule of Professional Conduct 3.8 (d) requires a
prosecuting attorney in a criminal case to "make timely
disclosure to the defense of all evidence or information
known to the prosecutor that tends to negate the guilt of the
accused or that mitigates the offense." In this
disciplinary matter, Demone Wyatt Lee (State Bar No. 507119)
is charged with a violation of Rule 3.8 (d). The special
master and Review Panel found that Lee violated
Rule 3.8 (d), and they recommended that he receive a formal
admonition. The State Bar urges that a more severe sanction -
a public reprimand - is appropriate. We find, however, that
the evidentiary record fails to show any clear-cut violation
of Brady or Rule 3.8 (d), and for that reason, we
conclude that no discipline at all is warranted.
2013, Lee was employed as an assistant district attorney in
Fulton County, and he was assigned to prosecute a case in
which the accused was charged with two sex crimes against a
child, one involving oral sodomy, and the other involving
anal sodomy. About a week before trial, Lee interviewed
the child, who previously had given a statement (that was
video recorded) implicating the accused in both oral and anal
sodomy. In speaking with Lee, the child recounted
an incident of oral sodomy, but when Lee asked if the accused
ever had "touched [the child's] butt, " the
child responded in the negative. Lee did not inquire further
of the child at that time about the earlier allegation of
anal sodomy. Lee then consulted a more seasoned prosecuting
attorney in his office about the failure of the child to
recount any instance of anal sodomy and how Lee ought to
present the case at trial. Lee did not disclose to defense
counsel before trial, however, that the child had denied that
the accused "touched [his] butt."
trial, Lee presented the video recording of the earlier
statement in which the child implicated the accused in oral
and anal sodomy. Lee also called the child as a witness, and
on direct examination, the child testified about an incident
of oral sodomy. After the child recounted the oral sodomy,
Lee continued his direct examination of the child as follows:
Q: What happened after that, after [the oral sodomy
A: I don't know.
Q: Did he ever touch you?
A: Like anywhere else?
Q: [Affirmative response]
Q: Okay. Did he ever put his penis on you again?
A: Like anywhere else on my body?
Q: [Affirmative ...