The April 4, 2014 decision by Tennessee's Consumer Assistance Program in cases 14000431-14000433 is reason to celebrate!
It is a very short and simple letter, but I have spent the last few days mulling over, and frankly, becoming astounded by its implications. On Thursday - April 10, 2014, I received a letter from Beverly P. Sharpe, Director of the Consumer Assistance Program (CAP) of Tennessee’s Board of Professional Responsibility (TBPR). She states, “I am forwarding your materials to our Chief Disciplinary Counsel for her further review and decision as to further steps.”
Oh my gosh.
The materials Ms. Sharpe references consist of exhibits and a March 17, 2014 supplement to a February 10, 2014 disciplinary complaint lodged by a coalition of grassroots good government advocates against James B. Dunn, District Attorney General for Sevier County, Tennessee, and two of his assistants, George C. Ioannides as well as Ashley D. McDermott. The contention that a Tennessee prosecutor’s obligation to seek justice encompasses reasonable whistleblower protection is a basic premise of the complaint. Without endorsing or refuting that proposition, Sharpe made a landmark decision and became an indisputable champion of whistleblower rights by simply forwarding the matter for further consideration by TBPR’s Chief Disciplinary Counsel.
Understanding The Context of An Otherwise Innocuous
Referral to The TBPR’s Chief Disciplinary Counsel
Keep in mind that Beverly P. Sharpe became a lawyer in 1983 and CAP’s director in 2002 when the program began. Further consider that “CAP will not take on cases in which an attorney has been accused of serious ethical violations but will instead refer such cases to Disciplinary Counsel for investigation.” [Emphasis Added]. Among other places, this proclamation is in an article by attorney Sharpe, commemorating CAP’s 10th anniversary as part of the first quarter 2013 edition of “Board Notes”, a TBPR publication. Such is the backdrop for an attempt by the Plea for Justice Program (P4J) to assist a program participant, former Tennessee deputy sheriff Mark Lipton.
P4J, which I help administer, is a grassroots initiative to reform plea bargaining in America. Program participants are contending with or surviving plea bargaining nightmares, including P4J participants who rejected a plea deal, went to trial, and were wrongfully convicted. The participants receive a variety of practical help, sometimes through P4J public awareness and reform campaigns.
In 2012, P4J participant Mark Lipton rejected an offer to plead guilty to disorderly conduct, went to trial, and appears to have been wrongfully convicted. Leading a coalition of people formerly connected in various ways to criminal law enforcement, as well as some Tennessee residents, P4J submitted to the TBPR that Dunn, Ioannides, and McDermott knew or should have known that knowledgeable people would likely link their prosecution of Lipton to his earlier allegation that Sevier County Sheriff Ronald Seals obstructed a DUI investigation. The coalition complained that, nonetheless, “D.A.G. James Dunn, A.D.A. George Ioannides, and A.D.A. Ashley McDermott allowed Henry Sutton, a man with a history (albeit relatively remote) of suicidal and homicidal ideations . . . as well as his wife who, at the time, had recently pled guilty to illicit drug sales, . . . help end Mr. Lipton’s law enforcement career by portraying him as a well known menacing character (among children anyway), prone to unprovoked violence and to feign personal injuries -- all without direct verification from disinterested sources, forensic evidence, or even consistent testimony by complaining witnesses.”
The novelty of their claim that Dunn, Ioannides, and McDermott acted unethically in regard to Mark Lipton did not escape P4J and its coalition partners, though the complaint was and is meticulously supported by rules of professional conduct, objective evidence, and case law. Recognizing their challenges, the coalition promptly encouraged the ABA to “formally consider proposing a model rule of professional conduct by which the specific responsibilities of prosecutors include an obligation to reasonably determine when an arguable need to deter alleged criminal activity through conviction and corresponding punishment is outweighed by a patent state and/or federal government interest in encouraging good faith attempts to disclose serious public and/or private sector misconduct, as well as in reasonable whistleblower/political participation/witness protection.” The ABA has yet to respond, but by letter of February 26, 2014, the coalition learned that the matter was being addressed by Beverly Sharpe of CAP, signaling that, per the State of Tennessee, serious unethical conduct was not involved.
Clearly to survive attorney Sharpe’s screening, P4J and its comrades had to expand her focus on Mark Lipton to the legal rights of all U. S. citizens with special emphasis on Tennessee residents, including Lipton. In their referenced reply of March 17, the coalition explained:
As of at least 1994, Tennessee prosecutors were admonished to “. . . seek justice rather than merely to advocate for the State’s victory at any given cost”. See, State v. Superior Oil, Inc., 875 S.W.2d 658 (Tenn. 1994). It is the societal cost of prosecuting Mark Lipton that (our coalition decries). Arguably all whistleblower, political participation, and witness protection laws everywhere were undermined by the respondents’ conduct at issue. Your letter to (us) suggests otherwise, but hopefully the Board of Professional Responsibility of the Supreme Court of Tennessee (TBPR) is not inclined to overlook the respondents’ derision of whistleblower, political participation, and witness protection unless their offense was clearly precipitated by a bribe, political/revenge reasons, and/or facilitated by the knowing introduction of false testimony. Direct evidence of the latter offenses is unlikely to emerge without thorough government investigation which so far, has not been forthcoming with regard to the respondents.
After acknowledging receipt of the indicated reply, Ms. Sharpe shared the phenomenal news that the matter is to be addressed by TBPR’s Chief Disciplinary Counsel!
In fact, it is astronomical that an attorney of Beverly Sharpe’s caliber perceives even a prospect of serious unethical conduct, presumably based on at least colorable allegations that a prosecutor derided without necessarily violating or circumventing whistleblower, political participation, and/or witness protection laws; all regardless of whether bribery, political/revenge reasons, and/or the knowing introduction of false testimony was or were clearly involved. To sustain such a view, the State of Tennessee must hold whistleblower, political participation, and witness protection sacrosanct. For taking that position, P4J and its coalition partners say to Beverly Sharpe of Tennessee’s CAP as well as the agency she directs: Hip, Hip, Hooray!
Next Steps, And We’re Just Getting Started
P4J cannot overemphasize that “D.A.G. James Dunn, A.D.A. George Ioannides, and A.D.A. Ashley McDermott essentially transformed Sevier County, Tennessee’s criminal justice system into a guilt or innocence crap shoot, apparently to provide a platform for vindicating improbable allegations of criminal activity against Mr. Lipton, which claims were riddled with factual inconsistencies and uncorroborated if not directly contradicted by forensic as well as other objective evidence through trial.” The allegation aligns with a focus of P4J affiliates on prosecutors’ “screening function” and how related concerns correspond with a niche in the spectrum of potential whistleblower retaliation. Targeted problem areas are (1). criminal prosecutions purportedly unrelated to First Amendment activities that are retaliatory as a matter of fact if not law; (2). prosecutions of “noble crimes”, i.e., garden variety crimes − such as property conversion − that facilitate disclosures of serious public and/or private sector misconduct; and (3). heightened scrutiny pursuant to which whistleblowers are criminally prosecuted when others similarly situated would not be and/or are punished relatively harshly.
The forgoing items (1).− (3). may align with one or more ethics violations and/or criminal violations of federal rights. No government agency may find either with regard to Tennessee D.A.G. Dunn and/or his assistants George Ioannides and Ashley McDermott, but the state’s now celebrated CAP determination of April 4, 2014 legitimizes public outcry in response to their prosecution of Mark Lipton. Moreover, the CAP decision confirms that related concern seems premised on more than a misunderstanding of relevant events, prosecutor negligence, or prosecutor over-zealousness. P4J and its close affiliates will accordingly press the F.B.I. to consider whether Dunn, Ioannides, and/or McDermott harbored specific intent to retaliate against Lipton for accusing Sevier County Sheriff Seals of improperly thwarting an arrest.
Perhaps the F.B.I. and U.S. Department of Justice will reconsider the alleged DUI cover-up by Seals upon considering the prospect of it having expanded into a retaliatory prosecution scheme. P4J and its affiliates will surely sustain and expand their public awareness and reform initiatives until all related problems are adequately redressed. America’s criminal justice system should not be a ready instrument of retaliation against whistleblowers, and it is less likely to be, again, thanks to Beverly Sharpe and Tennessee’s CAP. Our cup of kudos to and for them overflows!
Zena Crenshaw-Logal, Spokesperson
Plea for Justice Program Campaign for Prosecutor Reform