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In re Lee

Supreme Court of Georgia

May 1, 2017

IN THE MATTER OF DEMONE WYATT LEE.

          PER CURIAM.

         In 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).[1] The special master[2] 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.

         In 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.[3] 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.[4] 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."

         At 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 concluded]?
A: I don't know.
Q: Did he ever touch you?
A: Like anywhere else?
Q: [Affirmative response]
A: No.
Q: Okay. Did he ever put his penis on you again?
A: Like anywhere else on my body?
Q: [Affirmative ...

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