IN THE DISCIPLINARY DISTRICT IX
OF THE
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE
SUPREME COURT OF TENNESSEE

 

IN RE: STEPHEN P. JONES, BPR #16764 DOCKET NO. 
Respondent, an Attorney Licensed
to Practice Law in Tennessee
(Shelby County)

 

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

 

Because there are no genuine issues as to any material fact and because he is entitled to a
judgment in his favor as a matter of law, Respondent Stephen P. Jones (?Mr Jones?) ?led a
motion for summary judgment in this matter on August 3, 2016. As required by Tenn. R. P.
56.03, Mr. Jones also separately ?led a Statement of Undisputed Material Facts In
further support of the motion for summary judgment, Mr. Jones now submits this memorandum
of law and states as follows:

PROCEDURAL BACKGROUND

On May 16, 2016, Mr. Jones ?led a motion for judgment on the pleadings in this matter.
As a result of those ?lings, Mr. Jones is con?dent that the Hearing Panel is familiar with the
procedural background of this matter with respect to the contents of the original petition,
amended petition, and Mr. Jones? answers to each of those ?lings. Mr. Jones? motion for
judgment on the pleadings was denied by order of the Hearing Panel on June 20, 2016.

Since that time, the Board has taken Mr. Jones? deposition and the deadline for the

completion of discovery has passed. As is indicated below, Mr. Jones submits that the material

facts upon which his conduct should be judged are undisputed and that the Hearing Panel should
now be in a position to conclude he is entitled to judgment in his favor as a matter of law.
FACTUAL BACKGROUND

As has been itemized in the separately ?led SUMF, the undisputed material facts of this
matter are as follows:

Mr. Jones is an assistant district attorney in Shelby County and has been licensed to
practice law in Tennessee since 1994. (SUMF 1). Mr. Jones was not the lead prosecutor
handling the trial but became involved as co?counsel with another prosecutor in the Shelby
County District Attorney?s office in the lead up to the February 2009 trial of the Noura Jackson
case. (SUMF ?l 2). The trial in Ms. ackson?s case lasted for two weeks, and the State called
more than 45 witnesses and introduced more than 300 exhibits at trial. (SUMF ?l 3).

One of the State?s more than 45 witnesses was Andrew Hammack. (SUMF ?l 4). Mr.
Hammack provided two formal statements to the police regarding his interactions with Ms.
Jackson during the night of June 4, 2005, and the early morning of June 5, 2005 the time period
for which it was alleged that Ms. ackson?s mother was murdered. (SUMF 5). During
preparation for the testimony of a different State witness, Detective Miller, Mr. Jones reviewed a
supplemental summary Detective Miller wrote and noticed a reference to a third ?statement? by
Mr. Hammack actually a handwritten letter that was not in the possession of the prosecution.
(SUMF ii 6). The defense had been provided Mr. Hammack?s two formal statements that the
prosecution did have in its possession and also had been provided Detective Miller?s
supplemental summary, which described the contents of the third ?statement.? (SUMF 7).

Mr. Jones worked to get possession of the third ?statement,? but then, as explained by

Mr. Jones both in a February 26, 2009 filing with the criminal court, and as explained again more

than five years later in a letter from his lawyer to the Board, it was placed into the flap of a trial
notebook and then forgotten until after the trial concluded. (SUMF fl 8). After Mr. Hammack
testified on direct examination at the trial, Ms. ackson?s counsel did not make any motion under
Tenn. R. Crim. P. 26.2. (SUMF 1T 9).

Mr. Jones was the person who brought the situation to the light, and he did so through the
February 26, 2009 ?ling after the jury had rendered its verdict but before the defense had
moved for a new trial so that the trial court could consider it in its ruling on a motion for a new
trial. (SUMF it 10). Mr. Jones?s notice laid out the factual sequence of events surrounding the
State obtaining the statement from the police and how the statement came to be mislaid, brie?y
forgotten, and, as a result, not provided to defense counsel until after the trial had concluded but
before the defense had moved for a new trial. (SUMF 'll 1 1). Mr. ones? conduct was
unintentional and inadvertent. (SUMF 12-13). The trial court, in connection with Ms.

ackson?s motion for new trial, not only concluded that Mr. Jones did not intentionally withhold
the third Hammack statement but also concluded that the delayed production of that statement
was not a Bra_dy violation. (SUMF 'll 14).

On appeal, the Court of Criminal Appeals affirmed the trial court?s ruling likewise
finding no Brady violation had occurred. (SUMF 1] 15). The Tennessee Supreme Court
ultimately disagreed on the constitutional question, determining that a B_ra_dy violation requiring
reversal of Ms. Jackson?s conviction occurred as a result of the untimely disclosure of the third
Hammack statement. (SUMF Tl 16). The Tennessee Supreme Court explained its differing
conclusion as to on the basis that there were a number of ways that counsel for Ms.
Jackson could have used the contents of Mr. Hammack?s third statement to challenge the State?s

case during trial. (SUMF 1T 17). The Tennessee Supreme Court, however, specifically made

clear that it did not conclude that Mr. Jones had intentionally withheld the statement: ?By our
holding we do not disturb the trial court?s ?nding that the prosecutor did not intentionally
withhold Mr. Hammock?s third statement.? (SUMF 1T 18). After remand, prosecutors from a
different judicial district handled the case, and Ms. Jackson?s case was not re-tried and, instead,
Ms. Jackson entered an Alford plea to manslaughter charges and agreed to a reduced ?fteen?year
sentence. (SUMF ll 22).

Including the members of the Tennessee Supreme Court, nine different Tennessee judges
became familiar with the facts relating to Mr. Jones having not produced the third Hammack
statement until after the jury had returned its verdict, and every one of those judges had
obligations under Tennessee?s judicial ethics rules that arise from unethical conduct of lawyers
appearing before them. (SUMF 1H9). None of the nine judges with knowledge of the underlying
facts made any disciplinary report of any sort about Mr. Jones or took any other action to
sanction or reprimand Mr. Jones for his conduct. (SUMF j] 20). In fact, one of those judges 
the trial judge who was in the best position to make a determination regarding Mr. Jones?
intentions and conduct has executed a sworn declaration in this matter indicating he did not at
the time, and still doesnot, consider Mr. Jones to have engaged in any unethical conduct.
(SUMF 21).

STANDARD OF REVIEW

 

Unless otherwise provided to the contrary somewhere else in Rule 9 itself, the Tennessee
Supreme Court Rules make clear that the Tennessee Rules of Civil Procedure ?apply in
disciplinary case proceedings before a hearing panel.? Tenn. Sup. Ct. R. 9, Thus, a
respondent ?may, at any time, move with or without supporting af?davits for a summary

judgment in the party?s favor as to all or any part? of a Board petition. Tenn. R. Civ. P. 56.02.

In response to such a motion, ?the judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on ?le, together with the af?davits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.? Tenn. R. Civ. P. 56.04. In October 2015, the
Tennessee Supreme Court returned Tennessee?s standard as to summary judgment proceedings
to a position consistent with summary judgment under the Federal Rules of Civil Procedure. 

v. Women?s Care Ctr., 477 235 (Tenn. 2015). In so doing, our Court has attempted to

 

return summary judgment to what it should be ?a rapid and inexpensive means of resolving
issues and cases about which there is no genuine issue regarding material facts.? I_d, at 261
(citations omitted).

Thus, for a movant such as Mr. Jones who would not bear any burden of proof at a trial
of this matter 4 he ?satisf[ies his] burden of production either (1) by af?rmatively negating an
essential element of the nonmoving party?s claim or (2) by demonstrating that the [Board?s]
evidence at the summary judgment stage is insuf?cient to establish the [Board?s] claim.? at
264 (emphasis in original). Upon so doing, in response the Board ?must demonstrate the
existence of speci?c facts in the record which could lead a rational trier of fact to ?nd in favor of
the nonmoving party.? I_d. at 265. And, ?the focus is on the evidence the [Board] comes forward
with at the summary judgment stage, not on hypothetical evidence that theoretically could be
adduced, despite the passage of discovery deadlines, at a future trial.? 

LAW AND ARGUMENT

This disciplinary proceeding was brought because Mr. Jones made a mistake during the

criminal trial of Noura Jackson?s case. Mr. Jones did not intentionally withhold evidence; he did

not make any conscious or deliberate decision to avoid disclosure of Mr. Hamack?s statement.

No court concluded that he did anything other than make an inadvertent error. In fact, the
Tennessee Supreme Court 4 the entity that has the ultimate responsibility for regulating the
conduct of lawyers explicitly went out of its way in its 2014 opinion to disclaim any belief that
Mr. Jones had acted intentionally. State V. Jackson, 444 554, 597 n. 52 (Term. 2014).
The Board cannot prove, on the record before this Hearing Panel, that what transpired with
respect to the late disclosure of the third statement of Andrew Hammack was anything but an
inadvertent mistake on the part of Mr. Jones. The undisputed material facts of this matter make
plain that Mr. Jones? conduct does not justify the imposition of any discipline, much less the
imposition of public discipline. Mr. Jones should not be put through the expense and additional
negative, unwarranted publicity of a trial in this matter. Accordingly, this Hearing Panel should
grant Mr. ones?s motion for summary judgment and bring this matter to an end.

A. Mr. Jones Is Entitled to Judgment as a Matter of Law That He Did Not Violate RPC
3.8ng.

The primary rule that the Board accuses Mr. Jones of violating provides that ?[t]he
prosecutor in a criminal case  shall 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 mitigates the
offense.? Tenn. Sup. Ct. R. 8, RFC 3.8(d) (emphasis added). The fact that the Tennessee
Supreme Court determined that the delayed disclosure of the third Hammack statement as a
result of Mr. ones? inadvertent mistake constituted a Brady violation does not mean that the
third Hammack statement quali?es as something ?that tends to negate the guilt? of Ms. Jackson.
The ethical duty under RPC 3.8(d) applies only to information that is either exculpatory or that
mitigates guilt. The standard applicable under B_rad_y is different in terms of what must be
disclosed. The Brady standard applies to ?material? information that ?is favorable to the

defendant,? such as information that can be useful for impeachment of an important witness even

if it does not tend to negate guilt. State V. Jackson, 444 at 593?94. lmportantly,
?Brady applies not only to evidence in the prosecution?s possession, but also ?to any favorable
evidence known to the others acting on the government?s behalf in the case, including the
police?? 1d; at 594 (quoting Strickler v. Greene, 527 US. 263, 275 n.12 (1999)). Thus, the
Tennessee Supreme Court?s ruling that a Brady violation took place is certainly not dispositive
of the question of whether RPC 3.8(d) was violated and, given the difference in the tests
involved, is of less value to resolving this case than is the fact that the Court, as discussed infra
in Section D, explicitly did not disturb the ?nding of the trial court that Mr. Jones did not
intentionally withhold the document.

When asked by disciplinary counsel during his deposition, Mr. Jones explained at length
what made Mr. Hammack an important witness in the case to the prosecution and the only
aspect of his importance was something that was corroborated by other records, a phone call -
and even that was but a piece of a puzzle leading to proving a period of time in which Ms.
Jackson was not calling or texting anyone:

Q. All right. Let me ask an open question. What did Mr. Hammack
add to the case? What was his signi?cance?

A. His phone call to Noura or the phone call he received from Noura. I
can't remember if he I think the defendant called him, and that was corroborated
by her phone records, and that was the importance. Because this was a
circumstantial case, we had to exclude every other reasonable hypothesis except
for guilt. We did not want to be in a situation in closing argument and have the
defense say "the State didn't call this witness" or "you never heard from them," so
we called everybody, put them on and let them testify. And he certainly didn't say
saw her do it," didn't say did it.? You know, it was just one small puzzle
piece to this big puzzle that at the end of the day with my closing argument you
reveal the whole picture to the jury with all the pieces fit into there, and his was
that phone call, and I think it was it's in evidence in the phone records, was the
definitive unimpeachable thing that, you know, you can't refute, she placed a call
to him, and I think it was before. I think he was the one tha well, I think it was
before the homicide.

Q. Is the import of that what she said or the time and place of the call?

A. The time and place certainly placed it, the fact that and that was just

one. She made other phone calls to other people, except there was I wouldn't

use there was a period where she made no phone calls whatsoever and sent no

texts whatsoever. And that was our contention, that that period where she was not

making any did not have any phone activity was the time that de?ned when she

committed the homicide.
(Jones Deposition at p. 102 line 8?p.103 line 20).

Mr. Jones is entitled to judgment as a matter of law because the third Hammack statement
actually is not provable as information that tends to negate Ms. Jackson?s guilt. No one in this
case takes the position that it was information that in any way mitigated the offense. Thus, the
Board cannot prove any violation of RFC and Mr. Jones is entitled to judgment as a
matter of law.

Nevertheless, assuming for the sake of argument that the third Hammack statement could
be treated as tending to negate Ms. ackson?s guilt, Mr. Jones can never be proven to have acted
with the necessary element of intent to constitute a violation of RFC Neither the
language of the rule itself, nor the only language in the Comment specifically addressing 
offers any insight into the necessary mental state a prosecutor must have to trigger a disciplinable
violation of the rule. However, there must be a mental state of one type or the other involved in
the rule as an element of the offense. The language of Tennessee?s rule as to the pertinent part of
RFC 3.8(d) and Comment is identical to the ABA Model Rule. Thus, interpretations of the
ABA Model Rule, and precedent from other jurisdictions with language patterned after the ABA
Model Rule should be viewed as persuasive authority.

In the event this Hearing Panel does not grant Mr. Jones summary judgment as to RPC

3.8(d) on the basis that the third Hammack statement does not ?tend to negate guilt,? of the

accused, then the Hearing Panel must decide what mental state is necessary to trigger a violation

of this provision and should follow the lead of Colorado and explicitly rule ?hold that a
prosecutor violates Rule 3.8(d) only if he or she acts intentionally.? In re Attorney C, ?47 P.3d
1167, 1 168 (Colo. 2002). Tennessee, in particular, should take such an approach given its status
as one of a signi?cant minority of United States jurisdictions that uses only a ?preponderance of
the evidence? standard, rather than the ?clear and convincing evidence? standard for attorney
discipline matters. If Tennessee?s RPC 3.8(d) is treated as requiring intentional conduct on the
part of a prosecutor for a violation, there can be no question but that the Board cannot
demonstrate a violation by Mr. Jones as a matter of law. (SUMF 11 12).

The Board does not appear to be attempting to argue that Mr. Jones acted intentionally.
Rather, the Board has argued in this case that RPC 3.8(d) should be interpreted to extend to
knowing conduct rather than just intentional conduct. See In re Jordan, 913 So.2d 775, 783 (La.
2005) (disciplining prosecutor for violation of RFC 3.8(d) where the Court found that the
attorney ?knowingly withheld Brady evidence?); Lawyer Disciplinary Bd. v. Hatcher, 483
810, 818 (W. Va. 1997) (noting that a prosecutor who ?knowingly? fails to disclose
exculpatory evidence ?runs the risk of violating  Rule However, even if Tennessee?s
rule were to be treated as applying to ?knowing? violations on the part of prosecutors, Mr. Jones
would still be entitled to judgment as a matter of law.

The ABA Standards for Imposing Lawyer Sanctions de?ne ?knowledge? as ?the
conscious awareness of the nature or attendant circumstances of the conduct but without the
conscious objective or purpose to accomplish a particular result.? There are no facts in the
record in this matter that would demonstrate a knowing withholding of evidence by Mr. Jones in
the sense that he was ?consciously aware? that he was creating circumstances that would result

in an untimely disclosure. The record before the Hearing Panel in this matter makes clear that

the delayed disclosure of the third Hammack statement resulted from an inadvertent mistake by
Mr. Jones. Thus, whether this Hearing Panel concludes that only intentional conduct can trigger
a violation of RFC 3.8(d) or concludes that ?knowing? conduct on the part of a prosecutor also
can trigger a violation of RFC Mr. Jones is entitled to summary judgment in his favor.
(SUMF 13).

The only way that the Board?s claim could survive summary judgment in this case is if an
act of mere negligence on the part of a prosecutor alone could be a violation of RFC As a
matter of public policy, Tennessee should not adopt a position that an unintentional discovery
violation in criminal proceedings is a violation of RFC 3.8(d) deserving of discipline. Having an
unintentional mistake on the part of a prosecutor qualify as a violation of RFC 
particularly one punishable by public discipline, would deter prosecutors from doing the right
thing and immediately disclosing that such a mistake has been made. That outcome would be
detrimental both to the criminal justice system and to the legal profession as a whole.

Undersigned counsel is aware of only one jurisdiction that has concluded negligent
conduct on the part of a prosecutor is sufficient to justify the imposition of discipline for
violation of its Rule North Dakota. In re Feland, 820 672, 680 (ND. 2012).
Disappointingly, the Board has argued in this matter that North Dakota?s approach to this issue
should become the law in Tennessee as well. Tennessee should not follow North Dakota?s path.

First, unlike Tennessee, North Dakota?s disciplinary system requires proof by ?clear and
convincing evidence? to impose discipline upon a lawyer, and the weighty nature of that burden
of proof played a role in the North Dakota court?s analysis: ?If the Court were to engraft an
intent requirement onto Rule 3.8(d) as urged by Feland, proof of such intent by clear and

convincing evidence would be extremely difficult.? 151, at 681. Given the lower preponderance

10

of the evidence standard in use in Tennessee, no similar concern regarding the dif?culty of
proving such intent arises. Second, the North Dakota court, in reaching the conclusion that it
could impose discipline for an isolated negligent act on the part of a prosecutor, ended up in a
situation that it admitted was ironic only an admonition (private discipline) should have been
warranted yet the court was rendering a public opinion imposing supposedly private discipline.
ld; at 686. Tennessee Supreme Court Rule 9 prohibits this Hearing Panel from imposing private
discipline. Thus, despite the fact that application of the ABA Standards for Imposing Lawyer
Sanctions would clearly indicate that, if any discipline was merited for an isolated instance of
negligence, it would be private discipline, if this case were to go to trial and the Hearing Panel
?nd a violation of RPC the Hearing Panel would have to impose discipline that was more
harsh than what the ABA Standards would say was appropriate.

Here, the better path is to recognize again if and only if Tennessee?s RPC 3.8(d) is to be
interpreted as extending to negligent conduct as the Wisconsin Supreme Court has done that
?even where a prosecutor does fail to disclose exculpatory evidence in Violation of Brady, a
single inadvertent failure does not necessarily constitute an ethical violation.? In re Riek, 834
384, 392?93 (Wis. 2013). This is a principle that ?ows from the recognition that
?[n]egligence and ethical misconduct are not necessarily synonymous.? 1_d. at 393.

Most courts and of?cial ABA policy agree that a single instance of ?ordinary

negligence? may trigger other adverse consequences and possible sanctions but

not usually constitute a disciplinary violation warranting public discipline. See,

eg, In re Conduct 273 Or. 443, 541 P.2d 1393, 1396 (1975) (stating ?we

are not prepared to hold that isolated instances of ordinary negligence are alone

suf?cient to warrant disciplinary action?); Attorney Grievance Comm ?n of

Maryland v. Kemp, 335 Md. 1, 641 A.2d 510, 518 (1994) (?While we do not

condone, and certainly do not encourage, attorney negligence or carelessness in

the handling of client affairs, neither do we routinely treat negligence or
carelessness as a violation of the Rules of Professional Conduct?).

11

The concept that, for prosecutors just as for other lawyers in Tennessee, an isolated
instance of negligence should not result in discipline flows not just from common sense and
fairness but from a recognition of the legal landscape presented by a largely analogous situation
a court determination that a conviction must be revered due to ineffective assistance of counsel
in violation of a defendant?s constitutional rights. ?To prevail on a claim of ineffective
assistance of counsel, a defendant must establish that l) counsel?s performance was de?cient;
and 2) the deficient performance prejudiced the defense.? Bryant v. State, 460 513, 522

(Tenn. 2015) (citing Strickland v. Washington, 466 US. 668, 687 (1984); Goad v. State, 938

 

363, 370 (Tenn. 1996)).

When viewed through the lens of the impact on the outcome of a criminal case, conduct
constituting a Bra_dy violation and conduct resulting in a ?nding of constitutional ineffective
assistance of counsel under Strickland are, effectively, identical because each situation has had
the same level of prejudicial impact on the proceedings in terms of materiality. See, 
Cauthern v. State, 145 F.3d 571, 598-99 (Tenn. Crim. App. 2004) materiality aspect of a
Brady claim is governed by the same prejudice standard as an ineffective assistance of counsel
claim; that is, a defendant must show that there is a reasonable probability that the result of the
proceedings would have been different?). Yet, when viewed through the lens of what conduct
on the part of a lawyer is necessary for either situation to occur, it is clear that it takes a much
higher level of failing on the part of a defense lawyer for a court to find a constitutional violation
for the ineffective assistance of counsel than for a prosecutor to commit a My violation.

?Establishing deficient performance ?requires showing that counsel made errors so
serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth

Amendment.m Bryant, 460 at 522 (quoting Strickland, 466 US. at 687). ??Effective?

12

counsel means the provision of advice or services ?Within the range of competence demanded of
attorneys in criminal Cases.? Id; (quoting Baxter V. Rose, 523 930, 936 (Tenn. 1975)).
?The reasonableness standard is objective, measured by the professional norms prevailing at the
time of the representation.? And, in the process of a court reaching a conclusion regarding
ineffective assistance, it must make ?every effort  to eliminate the distorting effects of
hindsight,? and overcome a strong presumption that counsel ?rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.? Strickland,
466 US. at 690.

Further, when viewed through the lens of the ethics rules, there is a much more direct
relationship between rendering ineffective assistance of counsel and violation of the relevant
ethics rule RPC l.ll  than there is between a Brady violation and a violation of RFC 3.8(d)
given that information need not ?tend to negate guilt? to trigger Brady and need not even be
known by the prosecutor if in the hands of the police. Simply put, the adoption of a simple
negligence standard as sufficient to justify the imposition of public discipline upon a prosecutor
for a violation of RFC 3.8(d) would set a dangerous precedent. Thus, even if the Hearing Panel
concludes that negligence is sufficient to trigger a violation of RFC the Hearing Panel
should adopt a rationale like the Wisconsin court and Mr. Jones should be granted summary

judgment.

B. Mr. Jones Is Entitled to Judgment as a Matter of Law That He Did Not Violate RPC
3.4m.

 

1 Tenn. Sup. Ct. R. 8, RFC l.l requires lawyers to provide competent representation to
their clients.

13

In the Amended Petition, the Board alleged that ?Mr. Jones did not comply with Tenn. R.
Crim. P. 26.2, requiring that, upon motion, the prosecution must produce any statement in its
possession that relates to the subject matter of the witness?s testimony.? This allegation is the
only allegation in the Amended Petition which could conceivably support the Board?s claim that
Mr. Jones violated RPC That rule prohibits a lawyer from ?knowingly disobey[ing] an
obligation under the rules of a tribunal, except for an open refusal based on an assertion that no
valid obligation exists.? Tenn. Sup. Ct. R. 8, RPC 

Rule 26.2 of the Tennessee Rules of Criminal Procedure provides as follows:

MOTION FOR PRODUCTION. wAfter a witness other than the defendant has
testified on direct examination, the court, on motion of a party who did not call
the witness, shall order the attorney for the state or the defendant and the
defendant?s attorney to produce, for the examination and use of the moving party,
any statement of the witness that is in their possession and that relates to the
subject matter of the witness?s testimony.

PRODUCTION OF STATEMENT. 

ENTIRE STATEMENT. If the entire statement relates to the subject
matter of the witness?s testimony, the court shall order that the statement be
delivered to the moving party.

(2) REDACTED STATEMENT. w?

(A) DELIVERY TO COURT. If the other party claims that the statement
contains matter that does not relate to the subject matter of the witness?s
testimony, the court shall order that it be delivered to the court in camera.

(B) REDACTION OF UNRELATED PORTIONS. Upon inspection, the court
shall redact the portions of the statement that do not relate to the subject matter of
the witness?s testimony. The remaining parts of the statement shall be delivered
to the moving party. Any portion of the statement that is withheld from the
defendant over the defendant?s objection must be preserved by the attorney for the
state. In the event of a conviction and an appeal by the defendant, this preserved
portion shall be made available to the appellate court for the purpose of
determining the correctness of the decision to excise the portion of the statement.

RECESS FOR EXAMINATION OF STATEMENT. The court may recess the
proceedings to allow time for a party to examine the statement and prepare for its

USE.

SANCTION FOR FAILURE TO PRODUCE STATEMENT. --If the party who called
the witness disobeys an order to deliver a statement, the court shall strike the

14

witness ?s testimony from the record and order the trial to proceed. If the
attorney for the state disobeys the order, the court shall declare a mistrial if
required in the interest of justice.

PRODUCTION or STATEMENTS AT PRETRIAL HEARING. Except as otherwise
provided by law, this rule shall apply at a motion hearing under Rule 12(b).

DEFINITION OF As used in this rule, a witness?s ?statement?

means:

(1) A written statement that the witness makes and signs, or otherwise
adopts or approves; or

(2) A substantially verbatim, contemporaneously recorded recital of the
witness?s oral statement that is contained in a stenographic, mechanical, electrical,

or other recording or a transcription of such a statement.

Tenn. R. Crim. P. 26.2. (emphasis added). Even if the Board could prove a violation of Rule
26.2. the Board still would have to prove that Mr. ones?s violation involved him ?knowingly
disobey[ing]? Rule 26.2 in order to trigger a violation of RFC 34(0). The undisputed facts in
this matter are clear that the delayed disclosure was not an act involving knowing disobedience
of any sort. (SUMF 1T 13). Yet, the Hearing Panel need not resolve this aspect of the case based
on the fact that the conduct did not involve knowing disobedience, because given the text of
Tenn. R. Crim. P. 26.2, as a matter of law, there was no violation of Rule 26.2 at all.

The undisputed facts are that Ms. ackson?s counsel did not, after Mr. Hammack testi?ed
on direct examination, make such a motion. (SUMF 9). Thus, no order requiring production
of a statement by Mr. Hamma'ck on such a motion was entered; and Mr. Jones certainly did not
disobey any order to produce such a statement entered in response to such a motion. Thus, Mr.

Jones did not violate Rule 26.2, an essential element of the Board?s claim has been negated, and

summary judgment dismissing the Board?s claim as to a violation of RFC 3.4(0) is in order.

C. Mr. Jones Is Entitled to Judgment as a Matter of Law That He Did Not Violate RPC


15

RPC 8.4(a) is little more than an add?on allegation in a disciplinary matter as it serves to
make the violation of any other ethics rule a violation of RFC 8.4(a) as well. For many of the
reasons set forth above as well as those set forth below, Mr. Jones is entitled to summary
judgment as to any contention of a violation of RFC 

RPC 8.4(d) prohibits lawyers from ?engag[ing] in conduct that is prejudicial to the
administration of justice.? The Board?s case fails because the undisputed facts in the record are
clear the Board cannot prove a suf?cient intent on the part of Mr. Jones. The last sentence of
Comment to RPC 3.8 tellingly explains that knowing disregard of obligations or a
systemic abuse of prosecutorial discretion could constitute a violation of RFC Tenn. Sup.
Ct. R. 8, RFC 8.4 cmt. There is no logical basis to interpret RPC prohibition to
justify the imposition of discipline on a lawyer for an inadvertent mistake. And that is
particularly true in this case where the record is clear that it was Mr. Jones? own filing of the
Notice of Omitted encks Material that brought this matter to the attention of Ms. Jackson?s
counsel and the trial court and given that his ?ling was made at a time in which the trial court
was able to address it before ruling on a motion for new trial. (SUMF ?jj 10). The fact that Mr.
Jones, upon realizing his mistake, acted so that the trial court would know about the
issue prior to ruling on Ms. ackson?s motion for new trial actually demonstrates Mr. ones?s
respect for the law and further proves that there was nothing intentional or willful about Mr.
Jones?s failure to provide the statement before that point.

But, there are three additional reasons the Board?s claim as to RPC 8.4(d) cannot survive
summary judgment.

First, RPC 8.4(d) is a broad provision that primarily has utility for addressing conduct

that is directly related to judicial proceedings but that is not more specifically covered by some

16

other provision in the ethics rules but that is signi?cant enough to raise real questions about a
lawyer?s ?tness to practice law. Not surprisingly, reported cases involving violations of RFC
8.4(d) always involve a ?nding that another ethics rule along with that rule was breached. The
Tennessee Rules of Professional Conduct, as court rules, are subject to similar principles of

statutory interpretation as are statutes. See, State v. Johnson, 342 468, 471 (Tenn.

 

2011) (citing State v. Crowe, 168 731, 744 (Tenn. 2005)). A rule addressing a speci?c
instance of conduct RPC 3.8(d) 4 should have primacy over a more general provision RPC

just as ?a speci?c statutory provision . . . will control over a more general statutory

 

provision.? Washington v. Robertson County, 29 466, 475 (Tenn. 2000). Thus, if the
Board?s claim under RPC 3.8(d) fails, the same conduct should not be subject to discipline on a
claimed basis that it violates RPC 

Second, the way that the proceedings unfolded in Ms. Jackson?s case after the Tennessee
Supreme Court reversed and remanded her conviction demonstrates that the ?administration of
justice? was not actually prejudiced by Mr. Jones?s mistake. There was no retrial of the case.
Ms. Jackson was not ultimately exonerated or acquitted. Thus, what the Tennessee Supreme
Court concluded was a Brady violation did not play some role in an innocent person spending
time in jail. Rather, after the case was remanded, Ms. Jackson entered an Alford plea to
voluntary manslaughter and agreed to a sentence for her guilty plea of ?fteen years in prison.
(SUMF fl 22).

Third, the imposition of discipline for the violation of a provision focused upon prejudice
to the ?administration of justice,? in circumstances in which both the trial court and the
intermediate appellate court found no Brady Violation and, in fact, the trial judge has offered a

sworn declaration that he did not consider Mr. Jones to have engaged in any unethical conduct

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would defy all logic and common sense. (SUMF 14-15). Judge Craft was in the best position
to make a determination regarding Mr. ones? intentions and conduct as he had the lawyers
involved in front of him, presided over all of the discovery motions in the case, heard all of the
live testimony during the jury trial of the matter, and speci?cally (and contemporaneously)
evaluated the credibility of Mr. Jones? explanations in the context of Ms. Jackson?s motion for
new trial. Judge Craft is unequivocally on record in this matter that he did not then, and still
does not now, consider Mr. Jones? mistake to be unethical conduct. (SUMF ?ll 21).

D. The Tennessee Supreme Court Has Acted and Refrained From Acting in Ways
That Are Preclusive and Binding Upon The Hearing Panel.

All of the Board?s powers, as well as all of the powers of this Hearing Panel, come from,
and are subject to, the Tennessee Supreme Court. SE Tenn. Sup. Ct. R. 9. That statement is
particularly important to the outcome of these proceedings given that these proceedings began
when someone, doing little more than send a copy of the Supreme Court?s opinion in Ms.

ackson?s case, ?led a complaint with the Board2 against Mr. Jones and another lawyer that said
this and only this:

As the TN Supreme Court concluded, Jones (with Weirich) violated Noura

Jackson?s constitutional right to due process, What punishment will Jones 

Weirich face from the Board? If the Board doesn?t protect the people from

lawyers like these, who will?

(SUMF jl 20). The Court, however, speci?cally did not set aside the trial court?s determination
that Mr. ones? conduct was unintentional. (SUMF jl 18). This Hearing Panel has no power to

revisit or contradict the determination made by the Court regarding the unintentional nature of

Mr. ones? omission.

 

2 Mr. Jones has previously detailed, in connection with his earlier motion for judgment on the
pleadings, how the Board managed to launch these formal disciplinary proceedings against Mr. Jones
without even understanding that the document attached to the Petition as Exhibit was a document that
the prosecution had disclosed to Ms. ackson?s lawyers and not the third Hammack statement at all.

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Equally important, if not more important, for purposes of the questions before this
Hearing Panel regarding Mr. ones? conduct, is what the ?ve Justices of the Court did not say or
do: not one reported Mr. Jones to the Board nor did they take any other action to sanction or
admonish him. (SUMF 1T 20). At the time that the members of the Tennessee Supreme Court
issued the ruling in Ms. ackson?s case, each of them had obligations under Tennessee?s judicial
ethics rules to inform the appropriate authority the Board - if they had knowledge of a
violation of the Rules of Professional Conduct raising a substantial question regarding Mr. ones?
honesty, trustworthiness, or ?tness as a lawyer in other respects. S_e? Tenn. Sup. Ct. R. 10, RJC
The Court did not, as it certainly could have done, indicate in its ruling that it was
referring the matter of Mr. ones? conduct to the Board for investigation or that it would be
sending a copy of its ruling to the Board. Nor did any of the individual Justices otherwise make
any disciplinary report to the Board. Further, each of the Justices had obligations under
Tennessee?s judicial ethics rules to take ?appropriate action? if they received information that
indicated a substantial likelihood that Mr. Jones had committed a violation of the ethics rules not
signi?cant enough to rise to the level that required informing the appropriate authority. ?g
Tenn. Sup. Ct. R. 10, RJC Again, neither the Court nor any of its ?ve Justices took any
action to sanction or admonish Mr. Jones for any conduct and, instead, speci?cally noted that the
trial court?s conclusion about lack of intent was not being disturbed.

This Hearing Panel must defer to the fact that the Court took no such action. To do
otherwise would place this Hearing Panel in a position of calling into question whether the
members of the Tennessee Supreme Court somehow failed in their own ethical responsibilities

under the Code of Judicial Conduct.

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CONCLUSION
For all of the foregoing reasons, Mr. ones?s Motion for Summary Judgment should be

granted, and the Amended Petition for Discipline against him should be dismissed in its entirety.

Respectfully submitted,

LEWIS THOMASON

 
 

 


#19379)
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 certi?es that a copy of the foregoing Memorandum of Law in
Support of Motion for Summary Judgment 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 thway of August 2016.



W1:me 

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