IN THE DISCIPLINARY DISTRICT IX :36 it: if}; OFTHE . . BOARD OF PROFESSIONAL RESPONSIBILITY 0F Lat" a I SUPREME COURT OF TENNESSEE IN RE: STEPHEN P. JONES, BPR #16764 DOCKET NO. 2016-2534-9-KH Respondent, an Attorney Licensed to Practice Law in Tennessee (Shelby County) ANSWER TO AMENDED PETITION FOR DISCIPLINE Respondent Stephen P. Jones Jones?), for his answer to the Amended Petition for Discipline (?Amended Petition?), respectfully states as follows: FIRST DEFENSE The Amended Petition fails to state a claim upon which relief can be granted with respect to its allegation Of any violation of Tenn. Sup. Ct. R. 8, RPC 3.4(c) as no Court has ever concluded, and the Board does not have any non-frivolous basis to contend, that Mr. Jones knowingly disobeyed any court rule. SECOND DEFENSE The Amended Petition fails to state a claim upon which relief can be granted with respect to its allegation of any violation Of Tenn. Sup. Ct. R. 8, RPC 3.8(d) because Mr. Jones lacks the requisite intent to support any finding of a violation of that provision of the ethics rules. THIRD DEFENSE The Amended Petition fails to state a claim upon which relief can be granted as. to its allegations of any violation of Tenn. Sup. Ct. R. 8, RPC 8.4(a) or because, even assuming the Board could demonstrate that the administration Of justice was prejudiced, Mr. Jones lacks the requisite intent to support any ?nding of a violation of RPC 8.4(d) and because no other ethical violation can be proven which would support the add-on charge of a violation of RPC FOURTH DEFENSE The Amended Petition should be dismissed in its entirety as a matter of equity as the Board?s own actions, through Disciplinary Counsel, demonstrate. Mr. Jones no more deserves to be disciplined under RPC 3.8(d) for his inadvertent mistake in this matter than Disciplinary Counsel deserves to be disciplined under RPC 1.1 for the mistake that required the Board to have to ?le an Amended Petition attaching Detective Miller?s supplement, rather than the third statement of Mr. Hammack, as Exhibit to the original Petition. FIFTH DEFENSE The Amended Petition must be denied and this. matter dismissed as neither Tenn; Sup. Ct. R. 8, RPC 3.8(d) nor Tenn. Sup. Ct. R. 8, RPC 8.4(d) are rules requiring strict liability for which an attorney?s intent is irrelevant and, as such, the imposition of any discipline against ones? license in the present circumstances would be in violation of the United States and Tennessee Constitutions. SIXTH DEFENSE For answer to the separately numbered paragraphs of the Amended Petition, Respondent states as follows: 1. Admitted. 2. Admitted. 3. The allegations of the ?rst sentence of paragraph 3 of the Amended Petition are admitted. Mr. Jones further admits that certain violations of the Tennessee Rules of Professional Conduct constitute misconduct and may, depending on the circumstances surrounding the violation and the level of the attorney?s awareness and intent, be grounds for discipline of a licensed Tennessee lawyer. Mr. Jones further states that the Tennessee Rules of Professional Conduct ?presuppose that whether or not discipline should be impose for a violation . . . depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors, and whether there have been previous violations.? Tenn. Sup. Ct. R. 8, Scope 4. The first sentence of paragraph 4 of the Amended Petition is denied. Mr. Jones admits that the Board placed him in a position where his only choices were to agree to the imposition of a public censure drafted by the Board or to demand the right to defend himself in a formal hearing. To the extent the Board?s treatment of him has not been consistent with its handling of other disciplinary matters involving conduct lacking intent, the Board?s conduct is arbitrary and capricious. Mr. Jones further admits that he chose his right to defend himself because his mistake was not intentional and because he strongly believes that it would be fundamentally unfair for RPC 3.8(d) to be treated as a ?strict liability? provision such that lawyers serving as prosecutors in Tennessee could be subject to discipline against their law license for innocent mistakes. 5. Mr. Jones is Without suf?cient knowledge or information to either admit or deny the Board?s allegation about the exact date on which it opened its investigative file. Mr. Jones admits that William Shelton, a friend of Noura Jackson, ?led a complaint with the Board against him and that the complaint appears to have been based on Mr. Shelton?s opinion of the decision of the Tennessee Supreme Court in State of Tennessee v. Noura Jackson, 444 554 (Tenn. 2014). However, Mr. Jones would submit that Mr. Shelton?s complaint, and the Board?s pursuit of these proceedings, is contradicted by the Court?s findings in Jackson. The Tennessee Supreme Court wrote specifically that our holding we do not disturb the trial court?s ?nding that [Mr Jones] did not intentionally withhold Mr. Hammack?s third statementMr. Jones admits the allegations in paragraph 6 of the Amended Petition. 7. Admitted. Mr. Jones further states that his prior counsel provided multiple additional letter responses to Mr. Shelton?s allegations which the Board has omitted from the Amended Petition. 8. Mr. Jones admits that Mr. Shelton?s complaint against him arises from his work as an Assistant District Attorney for Shelby County during Ms. Jackson?s trial in February 2009. 9. Admitted. 10. Mr. Jones admits that the ?rst?degree murder case against Ms. Jackson went to trial in February 2009 and that Ms. Jackson was represented during the trial by two Memphis attorneys, Valerie Corder and Arthur Quinn. i 11. Admitted. 12. Mr. Jones admits that paragraph 12 of the Amended Petition sets out an incomplete description of the State of Tennessee (?State?)?s theory against Ms. Jackson presented at trial. 13. Mr. Jones admits that the lawyers representing Ms. Jackson made multiple requests before trial for the disclosure of Brady material and for Jencks statements as well as other requests for disclosure of information and statements going beyond the requirements of Brady or Jencks. 14. Mr. Jones denies the allegations of paragraph 14 of the Amended Petition as alleged. Mr. Jones admits that the lawyers representing Ms. Jackson made requests for statements made by multiple witnesses and that, on some occasions, such requests included reference to Andrew Hammack, but Mr. Jones has no independent recollection of the lawyers representing Ms. Jackson ever speci?cally requesting before trial a ?third statement? made by Mr. Hammack. Mr. Hammack was the State?s forty-second witness during trial, but Mr. Jones admits that the Tennessee Supreme Court concluded that it considered Mr. Hammack to be an important witness. 15. Mr. Jones admits that the Tennessee Supreme Court?s opinion indicates this occurred, but Mr. Jones has no independent recollection of any such renewed motion specifically being related to a ?third statement? made by Mr. Hammack. l6. Admitted. Prior to trial, the State fully disclosed the dates of each such statement and produced two statements of Mr. Hammack in full and had produced a supplement from Detective Miller, dated June 13, 2005, which summarized Mr. Hammack?s third statement. 17. Assuming that the reference to ?the evening? indicates June 4, 2005, then Mr. Jones admits the allegation in paragraph 17 of the Amended Petition. 18. Mr. Jones denies the allegations in paragraph 18 of the Amended Petition as the implication is that only one of Mr. Hammack?s statements gave a different account of events from what he testified to at trial. Mr. Jones further avers that the Tennessee Supreme Court opinion on which the Board selectively relies for its case makes clear that ?Mr. Hammack?s testimony at trial regarding his contact with [Ms Jackson] and activities that night varied from two prior statements he had given to the police, which were disclosed to the defense prior to trial? as well. (Page 28 of Exhibit to the Amended Petition.) 19. Mr. Jones admits that a copy of Detective Miller?s supplemental summary, dated June 13, 2005, was attached by the Board as Exhibit to the Amended Petition. To the extent the allegations in the ?rst sentence of paragraph 19 of the Amended Petition is intended to imply that Mr. Jones had knowledge of the third statement prior to February 15, 2009, those allegations are denied. 20. Mr. Jones admits that, ultimately, the Tennessee Supreme Court disagreed with the rulings of other courts in ?nding that Mr. Hammack?s third statement could have been used by the lawyers for Ms. Jackson in a number of ways. 21. Admitted. As set forth above, on February 15, 2009, Mr. Jones learned for the ?rst time that there appeared to be a third statement made by Mr. Hammack that was summarized in Detective Miller?s June 13, 2005 supplement. The statement was not in the State?s possession and, as a result, had not been produced to Ms. ackson?s lawyers. During the only break in the two-week trial, Mr. Jones reviewed Detective Miller?s June 13, 2005 supplement and noted the reference to a statement by Mr. Hammack. Mr. Jones instructed his investigator to request and secure a copy of that statement from the police. Mr. Jones received the statement from the police on February 17, 2019. Mr. Jones further admits that the Board. has corrected its prior error and attached a copy of the actual third statement to the Amended Petition as Exhibit E. 22. As Mr. Jones previously communicated to the Board and as he explained. in the State ?5 Notice of Omitted Jena/cs Statement in Relation to the Testimony of Andrew Hammock that he ?led with the trial court on February 26, 2009 (copy attached as Exhibit 1), he intended to produce Mr. Hammack?s third statement to Ms. ackson?s lawyers at his next opportunity. Because of the number of witnesses testifying, he placed the statement in the ?ap of a trial notebook and inadvertently did not produce that statement to the lawyers for Ms. Jackson or to lead counsel for the State. As Mr. Jones also previously explained, he did not thereafter remember the issue with the statement until he discovered it in the notebook after the trial had concluded. 23. Admitted as explained in paragraph 22 of this Answer. 24. Denied. 25. Admitted. Mr. Jones absolutely admits that he intended to produce Mr. Hammack?s third statement to Ms. ackson?s lawyers and that his failure to do so was entirely unintentional and inadvertent. Notably, it was Mr. ones? February 26, 2009 ?ling of the State ?3 Notice of Omitted Jencks Statement in Relation to the Testimony of Andrew Hammock which brought this issue to the attention of the court and Ms. Jackson?s lawyers. At no point did Mr. Jones attempt to hide his mistake. Further, Mr. ones?s action on February 26, 2009 was prompt enough to permit the trial court to know of the issue before any ruling on Ms. Jackson?s motion for a new trial. 26. Admitted as explained in paragraph 22 of this Answer. 27. Mr. Jones admits that the statement in paragraph 27 of the Amended Petition is an accurate statement of prevailing constitutional law. Mr. Jones states, however, that a Brady violation is not synonymous with a violation of RPC 3.8(d) and particularly because a Brady violation, unlike a violation of RFC can occur despite a lack of intentional or purposeful conduct on the part of a prosecutor. 28. Admitted as explained in paragraph 22 of this Answer. 29. Denied. 30. Mr. Jones admits that the Tennessee Supreme Court so concluded. 31. Mr. Jones admits that, for purposes of evaluating the issue of Brady compliance, the State conceded on appeal that the February 26, 2009 production of Mr. Hammack?s third statement was not timely. 32. Mr. Jones admits that the Tennessee Supreme Court, overruling the Court of Criminal Appeals and the trial court, concluded that a Brady violation occurred as a result of the third statement of Mr. Hammack not being produced by the State until February 26, 2009. Mr. Jones states, however, that a Brady violation is not synonymous with a violation of RPC 3.8(d) and particularly because a Brady violation, unlike a violation of RPC can occur despite a lack. of intentional or purposeful conduct on the part of a prosecutor. Mr. Jones further states that the Tennessee Supreme Court wrote speci?cally: our holding we do not disturb the trial court?s ?nding that [Mr. Jones] did not intentionally withhold Mr. Hammack?s third statement.? Id. at 597 n. 52. 33. Mr. Jones admits that the Tennessee Supreme Court concluded that the timing of the prosecution?s. production of the third statement of Mr. Hammack was a Brady violation. Mr. Jones denies the remaining allegations of paragraph 33 of the Amended Petition. Mr. Jones would further submit that any evaluation of the administration of justice should bear in mind that, rather than pursuing a new trial on remand, Ms. Jackson voluntarily entered an Alford plea to the charge of voluntary manslaughter and accepted a ?fteen-year prison sentence. 34. Denied. 35. Mr. Jones admits that, if the Board were able to prove he engaged in ethical misconduct, Tenn. Sup. Ct. R. 9 requires a Hearing Panel to take into account both aggravating factors and mitigating factors in determining what, if any, discipline would be appropriate. 36. Denied. Mr. Jones further states that the Board has no legitimate, non?frivolous basis for alleging that he has committed multiple offenses. 37. Attorney Jones admits that he has substantial experience, having been licensed to practice law since 1994. The remaining allegations in paragraph 37 of the Amended Petition are denied, and Mr. Jones denies that any discipline of any kind is appropriate against him with respect to this matter. SEVENTH DEFENSE Mr. Jones has never previously been the subject of disciplinary proceedings and, in the unlikely event that the Board can prove any violation of the ethics rules identi?ed in the Amended Petition, Mr. Jones is entitled to have the absence of any prior disciplinary record considered as a mitigating factor. EIGHTH DEFENSE In the unlikely event that the Board can prove any violation of the ethics rules identi?ed in the Amended Petition, Mr. Jones is entitled to have the absence of any dishonest or selfish motive on his part considered as a mitigating factor. NINTH DEFENSE Mr. Jones, upon realizing his inadvertent mistake, filed a notice with the criminal court explaining his mistake and produced the third statement of Mr. Hammack to Ms. ackson?s lawyers on February 26, 2009, action that was prompt enough to permit the trial court to know of the issue before any ruling on Ms. ackson?s motion for a new trial. In the unlikely event that the Board can prove any violation of the ethics rules identified in the Amended Petition, Mr. Jones is entitled to have his timely, good faith effort to rectify the consequences of his inadvertent mistake considered as a mitigating factor. TENTH DEFENSE The underlying events that the Board now alleges constituted a disciplinary violation occurred some seven years ago, in February 2009. In the unlikely event that the Board can prove any violation of the ethics rules identi?ed in the Amended Petition, Mr. Jones is further entitled to have the delay in the pursuit of these disciplinary proceedings considered as a mitigating factor. ELEVENTH DEFENSE The State v. Noam Jackson trial was, at the time, by far the most highly?complicated case (based on the number of witnesses and exhibits) Mr. Jones had been involved in as counsel. His involvement in preparation for the trial and the trial itself resulted in signi?cant, atypical stress to Mr. Jones that impacted his health. In the unlikely event that the Board can prove any violation of the ethics rules identi?ed in the Amended Petition, Mr. Jones is further entitled to have this impact on his health resulting from this signi?cant stress considered as a mitigating factor. TWELFTH DEFENSE Since the time of the events made the subject of this Amended Petition, under Mr. Jones? leadership, the statewide District Attorneys? conference has developed Brady training for every prosecutor in the state. In the unlikely event that the Board can prove any violation of the ethics rules identi?ed in the Amended Petition, Mr. Jones is entitled to have his efforts in helping educate and train prosecutors in the state to learn from his own inadvertent mistake considered as a mitigating factor. THIRTEENTH DEFENSE In the unlikely event that the Board can prove any violation of the ethics rules identi?ed in the Amended Petition, Mr. Jones is further entitled to have other relevant factors, including 10 but not necessarily limited to his remorse, his cooperation with (and full and free disclosures in) these disciplinary proceedings, and his character and reputation considered as mitigating factors with respect to this matter. WHEREFORE, Respondent Stephen P. Jones, now having answered the allegations in the Amended Petition for Discipline, respectfully requests that the Amended Petition for Discipline be denied. Respectfully submitted, LEWIS THOMASON #193 79) 40 South Main Street, 29th Floor Memphis, Tennessee 38103?5529 (901) 577?6139 (901) 525?6722 (fax) bfaughnan@lewisthomason.com Attorney for Respondent Stephen, P. Jones CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Answer to Amended Petition for Discipline has been served upon Deputy Chief Disciplinary Counsel Krisann Hodges, Esq., by email and by regular US. Mail, postage prepaid, at 10 Cadillac Drive, Suite 220, Brentwood, Tennessee 37027 on this the @day of April 2016. 11 IN THE CRIMINAL COURT OF TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS DIVISION 3 STATE OF TENNESSEE No. 2 .. e7 1k 1 NOURA JACK-S 0N a: NOTICE OMITTED STATEMENT 1N RELATION TO THE TESTIMONY OF ANDREW HAMMACK Statements, within the meaning ef the ?Jeneks: doctrine, do not have to be disclosed to the opposing side until after the witness has testi?ed at trial. Nevertheless, the State of Texmessee predtzced ail ?Teneks statements thee- in its posseseion te the, Defense en February 6, 2009, the Friday before jury seieetien was t6 begin :enMonday, Febrem'y 9, 2009.7 Included in this Jeneks disclosure were the June 7, 2005 signed statement of Andrew Hammaek given to homicide detectives and the June 10, 2005 signed statement of Andrew Hammeek given to homicide detectives. However, at the time of this pretrial the State was unaware of ahdiriet in aetual possessionof a'thirci ?statement? of Andrew Hammaek (attaeh'ed as att'aehm The state became aware of the existenee ofthis third ?statement? on Sunday, February 15, 2009 during the only break in the two~week leng' trial. for his direct eXaminationof Homicide Detective Miller, ithe'undemigned observed reference to the third statement in Detective Milleg?s June 13, 2005 supplement(attached. as attaehment his supplement had been provided to the Defense prior to the trial. The handwritten statement in question was summarized by Detective Miller in his supplement and mentioned that the ?note was collected for the tile.? The undersigned called his investigator and left a cell phone message requesting the statement to be obtained from homicide. The investigator delivered the handwritten statement to the undersigned on Tuesday, February 17, the day after the State holidayon Monday. The undersigned intended to deliver a copy to defense counsel at the next opportunity and not wait until after the witness testi?ed, however, due to the number of witnesses testifying the day the statement was received, the undersigned placed the statement in the flap of one of the trial notebooks to be dealt with later. Frankly, the undersigned forgot about the statement of the witness until he, discovered it in the notebook after the trial had concluded. The undersigned never gave the statement to, Ms. Weirich, who was handling the direct examination of Andrew Andrew Haminack was the State?s feity?secondwitness. The failure to provide the third Jencks statement of this Witness was unintentional I I i The failure to "disclose the statement in questicin Was not prejudicial to the defense. The defense had the. summary of the statement in question contained, in Detective Miller?s supplement and the defense had the two written'statements Andrew Hammackhad signed when given to the police. Thus, while the defense did not actually have the actual statement at the time of cross-n examination; there was nothing material in the'actual doeum ent in question that the defense did not already. have available for cross examination. BPR 01 6764 CERTIFICATE OF SERVICE I, the undersigned attorney, certify that a copy of the foregoing instrument was sent via fax to Art Quinn counsel for the Defendant, this '26" day of Egbmarv' 2-009;- ATTACHMENT SWMdag? Some 53? ?039 +0 WV. 1 ?51 ermk MIL Mme ?3621 [will I *?mL ?Ni in ?rm mamm ?53quegw r. - I bUbC ?jg V9 (A (DEL . . . CO 7 JV "197 WM 1" \n (2:33 ?ung (We.wa ?01 Wider-Tower I. Momp?his,TN 38152-352c Of?ce: 901?678~2101 Fax: 901~678~5023 Fax: 901457613053 APPLICATION STATUS REPORT May 27, 2005 Mr. Edward'zehed TERM: 1391121005 655HWa-tson SID: 414-63w8775 Men?phis TN 38111 CLASS: Freelnnau MAJOR: UND We are presently reviewing your application. Please help keep our records current by notifying this of?ce of any Changes inthe above 0 continue precessing your admission application, we require the following: An of?cial *1 General Education Development (GED) test scores. You need to take the GED test admiinetcred by the Board of Education and have the scores sent directly to this of?cer uric-retinitceli. be considered of?cial, allitems must. be?ts-Slit rimming-it '1 it lies must come ??om the testing agency, all - ?tints mine - Your adn?esion statuswill be con?rmed after these documents are received. Ifyou have any questions, please contact thc'OJ?i?ce of Admissions at (901) 678-2111. 2 w? ATTACHMENT supplement/Sgt Miller 06-13 710?? Case 0506002215M Monday June13, 2005 SgtiMMilleraiiSS'M 0506002215ME . 09451113 i Writer got a phone warrant of the records of Andrew Hammock's Nextel phone. The warrant was signed by Judge Brof-fatt. gt. Helldorfer advised the writer that the latent prints for elimination were delivered to C81. lO4?8hrs - Sgt. I-Iellciorfer went to the .TBI lab to meet with the DNA analyst and go otter the evidence. Sgt. Helldorfer took- crime scene .1 120hrs Writer picked up Andrew Hammaok and IanStrieldand at Danny Thomas and Popiat and brought them'to the Homicide Office. Writer placed Hammock in the small interview room. Haminack advised that he waswith Ian and met up with Ryan Grishein. He Iet Ian, Marco's, and J?Ron take his Weekend he went to a party with Ryan Grisham and a friend of his. Hammack said that before 1:00 Nonra called his cell phone, which was in his hook: with Ian. Ian told her that he was with Ryan. Noura then catiedhim on Ryan's phone and asked him to come over to her house. He told her he would as soon as he got his truck. Between 10 and 30 Noura called back and told him that she was already home and that she would talk to hint later. Hammaok went back to his house on Watson. He said that he and?Nonra text messaged each other just saying hello several times and that the mesSages are stored, on his phone. He stated that later he and Ian were out and oura?oalled and said she was at Eric's and wanted him to meet herat the house. He. said he would but he didhit-hecause he was to drunk. He and Ian wenthome for the nights Hammock had a hand written note with the things he did that night. Writer colleeted the note for the ?le. Hammaek advised that Eddie and the others were confused about the nights, because he took Bucky home on Friday night. . Writer sent gt. Luckett and Ian Stfickland. to 655 Watson to recover Hammock's cell phone with his pennission. 13 50hrs Sgt. Luckett returned to the Homicide Office'with phone. Writer viewed the last text messages left in the memory. The last three messages were: 4:05am ?nothn sittn at er-ics i wanna u" 4:29am "what I doing" 5 :OOam "answer" Writer sent Andrew HemaCk home with 'hisphone. END OF SUPPLEMENT 7*