Prosecutor faces VSB ethics charges

A Virginia prosecutor has been charged by a Virginia State Bar disciplinary panel with “dishonesty and misrepresentation” in concealing information about a police drug informant.

The case against Joseph W. Lee III, formerly with the Portsmouth commonwealth’s attorney’s office, marks a rare instance of bar ethics charges against a prosecutor for alleged discovery misconduct.

The charge comes as the Supreme Court of Virginia considers the latest recommendation for reforms in Virginia rules governing criminal discovery.

The bar charges – filed Aug. 29 – follow a defense lawyer’s 2016 allegation that Lee committed fraud on a court by hiding the fact that a police informant was a fugitive and unavailable to testify against two drug defendants.

The accusation led the commonwealth’s attorney’s office to drop all charges against the defendants. Lee left the Portsmouth prosecutor’s office shortly afterward. Lee is now chief deputy commonwealth’s attorney for Augusta County.

Hiding informant problems

The allegations of misconduct are contained in a six-page VSB First District subcommittee determination that Lee violated provisions of five Rules of Professional Conduct.

In 2015, Lee reportedly was a senior assistant commonwealth’s attorney in Portsmouth, overseeing a team of prosecutors working on drug cases.

Lee was assigned to prosecute two drug defendants who allegedly sold drugs to confidential informant Jacqueline Hooper, the bar said. Hooper had a deal with police and prosecutors that her drug charges would be dropped if she cooperated on drug buys.

Hooper gave up informing for the police and left Virginia in 2015. A detective said he was done working with Hooper as of August 2015. After repeated no-shows at Portsmouth Circuit Court, Hooper was deemed a fugitive until she was arrested in Baltimore in March of 2016.

With a key witness missing, Lee nonetheless sought to keep alive the cases against the two alleged drug dealers, the bar said. He sought a continuance saying he was told Hooper was having surgery, although that statement was unsupported and untrue, the bar said.

Lee later told a judge the information about the medical procedure came from Hooper’s lawyer, only to have that lawyer promptly deny making any such statement, the bar said.

Lee told a defense lawyer he thought Hooper was in the building as he negotiated a plea bargain, fully aware Hooper was a fugitive, the bar said.

Lee told a judge he continued the case on a prior occasion because the state’s chemist had been unavailable, an excuse that would toll the speedy-trial clock. However, a transcript of the hearing in question showed the reason Lee gave for delay was the informant’s purported surgery.

In April 2016, Edward W. Ferreira of the Norfolk public defender’s office filed a motion to dismiss the charges against his client based on prosecutorial misconduct. He accused Lee of a “systemic plan” to hide the fact that Hooper – the informant – was unavailable for court.

The Portsmouth prosecutor’s office, headed by Commonwealth’s Attorney Stephanie Morales, pulled Lee off the case and dropped charges against the two drug defendants, the bar said. Lee left the office that month, according to a newspaper account.

The VSB disciplinary subcommittee said Lee’s conduct “was dishonest and disruptive of the discovery process and several court proceedings … and involved dishonesty and misrepresentations.”

No hearing date for a disciplinary proceeding has been announced.

Lee is represented in the bar discipline case by Richmond’s Leslie A.T. Haley. She declined to comment, saying she had not yet seen the certification of charges when contacted Aug. 29.

Augusta County Commonwealth’s Attorney Tim Martin hired Lee as chief deputy in February of last year. Lee replaced Rupen Shah, who was elected a general district judge. A news release from Martin’s office said Lee had worked as a prosecutor for 10 years, first with the Lynchburg commonwealth’s attorney’s office and then in Portsmouth.

Martin also declined comment saying he had not had a chance to review the bar certification.

Bar has critics

Some defense lawyers have claimed for years that VSB ethics prosecutors turn a blind eye to misdeeds of prosecutors, even in the face of judicial findings of misconduct.

Commenting in May on a discovery reform proposal, Richmond lawyer Gerald T. Zerkin said any rule change would be a mere “academic exercise.”

“[W]hatever the Rule is, the Bar will do nothing for violations and prosecutors will continue to get a free pass,” Zerkin said.

Advised of the charges against Lee, Zerkin said only time will tell what action will be taken.

“If verifiable, you would hope the bar will take some action,” he said.

Bar Counsel Edward L. Davis said only, “The most important thing is that the proceedings be fair.”

Bar charges against prosecutors are not unknown. The VSB charged former Culpeper County Commonwealth’s Attorney Gary Close with misconduct after a federal judge concluded Close made misleading statements about a jailhouse informant in a capital murder case. In 2015, Close agreed to a public reprimand.

The VSB twice brought charges against former Caroline County Commonwealth’s Attorney Tony Spencer. He accepted a public reprimand in 2013 after he allowed a paralegal to use a ruse to gather information from an adversary’s law office. He was admonished by the bar in 2011 for talking with a criminal defendant when the defendant’s lawyer was not present. That penalty was reversed on appeal to the Supreme Court.

Updated Sept. 5 to delete an inaccurate statement that Close promised to close his law practice. He did not.