Prosecutor beats ethics charges

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A prosecutor accused of intentionally withholding evidence required to be disclosed to a criminal defendant’s lawyer won dismissal of bar charges on July 22.

A district committee of the Virginia State Bar Disciplinary Board unanimously determined to dismiss the bar charges, according to the attorney for Archana J. McLoughlin of Williamsburg.

McLoughlin was an assistant commonwealth’s attorney in Clarke County prosecuting a domestic assault charge when the alleged misconduct occurred, according to the VSB’s charges. A court order required the prosecution to turn over any evidence that might help the defense.

The bar contended McLoughlin failed to disclose a tape of a 9-1-1 call where the defendant called for police help in dealing with a girlfriend. McLoughlin also failed to turn over a police report referencing a prior physical altercation involving the alleged victim, the bar said.

A bar investigator suggested McLoughlin sought to cast blame on a non-lawyer office manager in the prosecutor’s office who failed to identify the exculpatory evidence.

The assault defendant was convicted in general district court, but – on appeal – the charges were dropped after review by a special prosecutor.

McLoughlin, who now works at the Williamsburg-James City County prosecutor’s office, never had to testify at Wednesday’s bar discipline hearing, said her attorney, William W. Tunner of Richmond.

“There was simply no evidence. No one testified she knew of any evidence she did not turn over,” Tunner said.

The six-member disciplinary committee dismissed the bar charges at the end of the evidence presented by the VSB attorney, Tunner said.

Unlike the constitutional requirement for disclosure in criminal cases, often referred to as the “Brady Rule,” the Virginia Rules of Professional Conduct focus on a prosecutor’s intent to withhold evidence, Tunner said.

“In order to violate Rule 3.8 (d), the Virginia State Bar has to prove the commonwealth’s attorney had actual knowledge of exculpatory evidence,” Tunner said. “There is a mens rea element in the case.”

Testifying for the VSB were five witnesses, Tunner said, including the defense attorney in the underlying case, the VSB investigator, the Clarke County commonwealth’s attorney, a social worker and the prosecutor’s office manager.

The office manager acted as a paralegal in the office, Tunner said, but files were reviewed by the attorneys. Nevertheless, he said, there was no evidence McLoughlin had any exculpatory evidence that did not get turned over.

The district committee granted a motion to strike at the end of the VSB’s evidence, Tunner said.

VSB Counsel Edward L. Davis declined to comment pending issuance of a memorandum opinion from the district committee.

“I think the process worked as it should. I put forth the information I had,” said Jerry L. Johnson of Berryville, who represented the criminal defendant and filed the bar complaint against McLoughlin.