Prosecutor Disciplined For Using Fake Facebook Profile To Meddle In Murder Case

(Mis)Uses of Technology

from the wrists-sufficiently-slapped,-says-state-Supreme-Court dept

Setting up fake social media accounts: law enforcement officers do it, even though it’s the same sort of activity they arrest others for. The DEA does it, but it ended up setting the DOJ taxpayers back $134,000. Generally, it’s a bad idea. There’s nothing inherently private about public social media accounts, but lines are crossed when law enforcement sets up fake accounts and interacts with suspects, rather than just quietly lurking and snagging passing public communications.

An assistant county prosecutor assigned to a murder case decided he could crack the case by pretending to be the jilted lover of one of the suspects. The attorney, Aaron Brockler, made several questionable moves on his way to being fired and having his license to practice law suspended by the Supreme Court of Ohio. (h/t Courthouse News)

Brockler first took advantage of the fact that calls from jails are routinely recorded.

As part of his investigation, Brockler listened to recordings of telephone calls that Dunn had made from the Cuyahoga County Jail. On the morning of December 14, 2012, he listened to a recording of a heated conversation in which Dunn and Mossor argued over Dunn’s fear that Mossor would not be a reliable witness and Mossor’s belief that Dunn had not been faithful to her. Mossor suspected that Dunn had had a romantic relationship with a woman named “Taisha” and indicated that if her suspicion was true, she would end her relationship with Dunn. Believing that Mossor’s relationship with Dunn was near a breaking point, Brockler saw an opportunity to exploit her feelings of distrust and get her to recant her support for Dunn.

Using this info, Brockler set up a fake Facebook account under the name of “Taisha Little.” He populated his friends list with people linked to Dunn via HIS Facebook page, as well as info gathered from phone call recordings. Brockler did attempt to coordinate with local law enforcement in this effort, but apparently felt they weren’t moving fast enough.

So, he struck out on his own, initiating Facebook chats with Dunn’s girlfriend, claiming his alter ego had an 18-month-old child fathered by the suspect. He also made comments about the credibility of Dunn’s alibi, hoping to receive verification that it was false. After several hours of this, Brockler felt the two people he was chatting with were growing suspicious, so he shut down the account and deleted. He also printed out copies of his conversations.

Of course, all of this was done with the purest of intentions, including the withholding of this information from defense counsel.

He testified that he printed copies of the chats and placed them in a file—with the intent to provide copies to defense counsel—before he deleted the account, but those copies were never found. He attended five pretrial conferences from January through April 2013 but did not disclose the circumstances or content of his conversations with Mossor or Lewis.

[…]

Brockler also disclosed that he might need to be a witness at trial because both Mossor and Lewis had told him they would not support Dunn’s alibi, although they were afraid to say so in court. Brockler did not disclose how he obtained that information.

Brockler went on medical leave and the files were turned over to another assistant prosecutor. This one immediately turned over the information to the defense counsel and began to investigate “Taisha Little.” Brockler did not inform the new assistant prosecutor that he was “Taisha Little” until three weeks later. Brockler was fired shortly thereafter.

He defended himself in an interview with the Cleveland Plain Dealer, stating he had really done nothing wrong.

The subsequently published article and broadcasted interview included statements by Brockler—which he does not dispute—to the effect that (1) prosecutors have long engaged in ruses to obtain the truth, (2) his firing 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 victim’s 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.

He then went to the disciplinary board and asked it to carve out an exception for his misconduct. The board refused to do so.

Instead, the board found that Prof.Cond.R. 8.4(c) requires an assistant prosecutor to refrain from dishonesty, fraud, deceit, or misrepresentation when personally engaging in investigatory activity and that Brockler’s Facebook ruse therefore violated the rule.

Furthermore, the board found Brockler’s misconduct aggravated by several factors.

[T]he board found that Brockler’s deceptions and misrepresentations in his contacts with Mossor and Lewis resulted in multiple violations of Prof.Cond.R. 8.4(c) and (d), though it treated them as a single instance of misconduct. See Gov.Bar R. V(13)(B)(4). The board also found that his extrajudicial statements to the media, deflecting blame for his own misconduct to the police department and the prosecutor’s office, undermined the public’s confidence in the criminal-justice process.

Unfortunately, the end result is a slap on the wrist: a 12-month suspension, fully-stayed, which means Brockler can continue to practice law during the duration of his “punishment.” He may not be able to do this at his “dream job” (the county prosecutor’s office) but he’s not prevented from earning income as an attorney either.

Two judges dissented, however. Hearteningly, they’re not concerned the court has come down too heavily on the disgraced former prosecutor. Instead, they’re both of the opinion the punishment is far, far too light.

Chief Justice O’Connor:

By imposing a marginal sanction—a fully stayed one-year suspension—on respondent, Aaron Brockler, the majority minimizes his significant ethical violations and does so based upon a myopic view of the Rules of Professional Conduct. The men and women who serve as prosecutors in this state are authorized to enforce the law and administer justice, one of the noblest pursuits an attorney can enjoy. Accordingly, they must meet or exceed the highest ethical standards imposed on our profession. Given the significant ethical violations Brockler committed, I cannot implicitly condone the imposition of a negligible sanction for his egregious misconduct.

O’Connor (along with two other dissenting judges) finds a much harsher punishment better fits Brockler’s wrongdoing.

Because I believe that the court’s sanction in this case is entirely incongruous with Brockler’s behavior, I cannot subscribe to it. For his ethical misdeeds, I would indefinitely suspend Brockler’s license to practice law in the state of Ohio.

In Brockler’s own words, the ends justifies the means. Fortunately, the disciplinary board and the state Supreme Court didn’t agree with him. Unfortunately, the majority decision makes it clear the state is willing to put up with a lot of misconduct before it will consider someone unfit to practice law.

Filed Under: aaron brockler, law enforcement, ohio, social media