Former Oklahoma County prosecutor Brad Miller has been suspended from practicing law for 180 days for “reprehensible” misconduct in a 1993 murder case.
Miller, 52, also must pay $12,834.
The Oklahoma Supreme Court reviewed Miller's actions after a federal appeals court in 2009 overturned the convictions of two gang members.
Miller, now a successful civil attorney, has denied any wrongdoing.
The Supreme Court imposed the discipline in a 5-2 decision Tuesday.
“Make no mistake, if this conduct were to happen today, the punishment would have been much more severe,” Justice Yvonne Kauger wrote for the majority.
Two justices wanted Miller disbarred.
In a dissenting opinion, Justice Steven Taylor wrote: “Whether it was ‘decades ago' or today, no attorney should ever commit the ‘reprehensible' conduct in death penalty (or any other) litigation as detailed in the majority opinion. … The actions of the respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice.”
The two gang members, Yancy L. Douglas and Paris Lapriest Powell, were on death row for years after being convicted at separate trials in the fatal drive-by shooting of a 14-year-old girl, Shauna Farrow.
The 10th U.S. Circuit Court of Appeals overturned their convictions because of Miller's “egregious” conduct. The federal appeals court condemned the prosecutor for his “knowing use of false testimony” from the only eyewitness.
The eyewitness, Derrick Smith, identified the two men as the shooters but later said he was too drunk and high to identify anyone. The two men were freed in October 2009 when new prosecutors opted not to retry them because of Smith's conflicting versions of the shooting.
Prosecutors believe Smith, who is in a rival gang, was the target of the drive-by attack. He was shot in the hip.
The Oklahoma Bar Association alleged Miller knew the eyewitness was unreliable but had him testify anyway and tailored and bolstered his account.
In the majority's opinion Tuesday, the Supreme Court found there was not clear and convincing evidence that Miller elicited false testimony. Instead, the Supreme Court disciplined Miller for failing to disclose evidence to the defense and for other conduct prejudicial to the administration of justice.
Specifically, the Supreme Court agreed Miller failed to disclose to Powell's attorneys the steps the prosecutor took to aid the eyewitness in his own criminal cases.
Douglas was tried first in 1995, and Powell was tried in 1997. After testifying in the first trial, Smith wrote a letter to Miller clearly indicating he would not testify in the second trial “unless he received favorable benefits.” That letter was not turned over to defense attorneys.
The Supreme Court also pointed to “irregularities” in the way information was obtained from three sisters who were witnesses in the case. Those irregularities included the use of fake subpoenas. The sisters were 14, 12 and 9 at the time of the shooting. Justices also noted arrest warrants were issued in an attempt to force them into cooperating with Miller.
“Instances of prosecutorial misconducts from previous decades, such as withholding evidence, often were met with nothing more than a reprimand or a short suspension,” Kauger wrote.
“Reprehensible though Miller's conduct may have been, and even if such misconduct is punished more harshly when it occurs now, Miller's actions took place decades ago, and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place.”
Late DA Macy blamed
Kauger also wrote Miller acted under the policies of the late Bob Macy, the longtime district attorney who put dozens of murderers on death row.
Appeals courts, though, came to criticize Macy's hard-nosed approach more and more often.
Macy is partially responsible for Miller's conduct and trial tactics, Kauger wrote.
Miller did not return a phone call seeking comment.