ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ERIC ANTHONY WRIGHT NUMBER: 13-DB-003 RULING OF THE LOUISIANA ATTORNEY DISCIPLINARY BOARD

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: ERIC ANTHONY WRIGHT NUMBER: 13-DB-003 RULING OF THE LOUISIANA ATTORNEY DISCIPLINARY BOARD 13-DB /4/2014 This is a disciplinary matter based on the filing of formal charges by the Office of Disciplinary Counsel ( ODC ) against Eric Anthony Wright ( Respondent ), Louisiana Bar Roll Number The charges, which consist of one count, allege violations of the following Rules of Professional Conduct ( Rule(s) ): 3.3(a)(1) & (3) (Candor toward the Tribunal) 1. The Hearing Committee assigned to this matter concluded that Respondent did not violate the Rules and recommended that the formal charges be dismissed. For the following reasons, the Board adopts the factual findings and conclusions of the Hearing Committee. The Board also adopts the recommendation of the Committee to dismiss the formal charges. PROCEDURAL HISTORY ODC filed formal charges on January 17, Attorney Steven Scheckman enrolled as Respondent s counsel on January 28, The answer to the formal charges was filed on March 1, In advance of the hearing, Respondent filed a prehearing memorandum on June 3, ODC filed a prehearing memorandum on June 4, 2013 concluding that At its core, the heartland of the offense for which the respondent is charged calls into serious question his fundamental character and integrity necessary to engage in the practice of law. The baseline sanction for this misconduct is permanent disbarment under Guideline 2, Appendix E under Rule XIX; incorporating aggravating and mitigating factors justifies a downward departure to disbarment. 1 The text of the Rules is contained in the attached Appendix.

2 After a continuance, the committee held its hearing on January 22, 23, and February 11, Deputy Disciplinary Counsel Robert S. Kennedy, Jr. appeared on behalf of ODC. Steven Scheckman represented Respondent. Both parties filed post-hearing memorandum on April 10, The Committee issued its report on May 19, 2014 recommending that the formal charges be dismissed. 2 Respondent concurred with the report on May 29, ODC filed an objection to the report on June 6, Prior to Board oral argument, ODC filed a pre-argument brief on August 5, Respondent filed a pre-argument brief on August 20, Oral argument of the matter was heard by Board Panel C on September 4, Deputy Disciplinary Counsel Robert S. Kennedy Jr. appeared on behalf of ODC. Respondent appeared with his attorney Steven Scheckman. FORMAL CHARGES The Formal Charges in this matter state in pertinent part: In 2008 the respondent Eric Wright (Bar Roll No ) was retained to represent Ray Boudreaux who was charged with five counts of attempted second degree murder arising from a fight outside a French Quarter club on September 16, 2007 which resulted in at least five people being stabbed. After a three-day jury trial in Orleans Criminal District Court in June 2008, the defendant was found guilty as charged on all five counts. At trial, the state introduced a video of the incident (Video No. 1) taken by a surveillance camera outside the club showing the defendant stabbing one of the five victims. During the trial the defense produced a second video (Video No. 2) together with testimony from a defense witness and claimed this second video was taken the same night and depicted the same incident as the state's surveillance video. 2 Hearing Committee Number 24 was composed of Mary L. Dumestre (Committee Chair), Michael Joseph Ecuyer (Lawyer Member), and Hurley H. Griffing (Public Member). 3 Board Panel C was composed of Carl A. Butler (Chairman), Anderson O. Dotson III (Lawyer Member), and Linda P. Spain (Public Member). 2

3 The second video as offered by the defense proved to be a complete fabrication, as it involved an entirely separate incident which occurred at the same location some nine months earlier. The defense had crafted the second video - Video No. 2 - from cell phone camera footage which a defense investigator had retrieved from the My Space page of one of the victims - which involved some of the same participants as the September 2007 attack. Because the defendant professed to have expertise in digital data transfer techniques, the Respondent instructed Mr. Boudreaux to prepare the My Space footage for presentation in court. Boudreaux has admitted that he altered the My Space footage to make it appear to be identical or similar to the footage appearing in the state's surveillance video (Video No. 1). Once the trial began, Respondent then successfully convinced the trial judge to allow him to show the video to the jury. He also elicited what was later revealed to be false testimony from a witness, Lionel Rayford, to the effect that the January 2007 video depicted the fight that occurred outside the French Quarter club on September 16, In response, the state produced a rebuttal witness, Ashley Barriente, who brought a cell phone containing the original footage from the January 2007 fight to the courtroom and showed the original video to the court, the lawyers and jury. She testified that her sister had taken the footage on her (Barriente) cell phone in the French Quarter on January 13, nine months before the incident at issue took place. In his sworn statement to ODC, convened after a complaint was filed against him alleging his complicity in suborning perjury and foisting knowingly false physical evidence on the court and the jury, the Respondent insisted that once he learned that the defense video No. 2 was a fabrication, he repudiated the film by deliberately refusing to offer it into evidence. Ultimately, he made no effort whatever to correct the record by acknowledging the false and misleading nature of the proffered video. To the contrary, during closing argument the respondent repeatedly and emphatically insisted that video No. 2 was an authentic depiction of the September 2007 fight to both the court and the jury, going so far as to pointedly attack the credibility of the video's author, Ms. Barriente, as "un-credible" in his argument to the jury. By his acts and omissions, the respondent has knowingly and intentionally violated Rules 3.3(a)(1) and (3)(candor toward a tribunal). 3

4 THE HEARING COMMITTEE S REPORT As noted above, the Committee issued its report on May 19, The Committee found that ODC failed to prove by clear and convincing evidence that Respondent violated any of the Rules of Professional Conduct as set forth in the formal charges filed against Respondent. Specifically, the Committee found as follows: BASIS OF FORMAL CHARGES In 2008, Respondent Eric Wright (Bar Roll No ) was retained to represent Ray Boudreaux, who was charged with five counts of attempted second degree murder arising from a fight outside of a French Quarter club on September 16, At least five people were stabbed in the melee. To assist in the defense, Respondent associated co-counsel, Kenisha Parks, and the two attorneys shared defense responsibilities at Mr. Boudreaux's trial. After a three-day jury trial in Orleans Parish Criminal District Court in June 2008, Mr. Boudreaux was found guilty on four of the five counts. At trial, the state introduced a video of the September 2007 incident (Video No. 1) taken by a surveillance camera outside the club. Video No. 1 purportedly showed the defendant stabbing one of the five victims. During the trial, the defense produced a second video (Video No. 2), and represented that Video No. 2 was taken the same night and depicted the same incident as the state's Video No. 1. The state filed a motion in limine to suppress Video No. 2, contending that it showed a fight that occurred in 2006, and that it was nothing more than inadmissible evidence of prior bad acts. The trial judge heard arguments from both the state and the defense team, and ultimately ruled that the defense could show the video to the jury. During the trial, co-counsel Ms. Parks aired the video for the jury. She also elicited testimony from witness Lionel Rayford, who first found Video No. 2 on the MySpace page of one of the victims, to the effect that Video No. 2 depicted the fight that occurred outside the French Quarter club on the night in question, September 16, In response, the state produced a rebuttal witness, Ashley Barriente, who brought with her to court a cell phone containing photographs from the January 2007 fight. She testified that her sister had taken the footage of Video No. 2 on a cell phone in the French Quarter on January 13, 2007, nine months before the incident at issue took place. As the trial was ongoing, the Court declared that Video No. 2 would be classified as "demonstrative evidence." The Court did not prohibit Respondent from discussing Video No. 2 in closing argument, but the Court ruled that the jury could not view Video No. 2 during deliberations. 4

5 After the testimony of Ms. Barriente, and while in the courtroom with no break in the trial, Respondent expressed his concern about Video No. 2 to his client, Mr. Boudreaux. Mr. Boudreaux insisted that Respondent refer to Video No. 2 in closing argument. In his closing, Respondent continued to suggest the relevance of Video No. 2, attacking Ms. Barriente's credibility. In the alternative, Respondent argued, even if taken on another night, Video No. 2 showed the victims' propensity for violence, supporting Mr. Boudreaux's claim of selfdefense. Although the fight in Video No. 2 involved some of the same participants as in the September 2007 attack at issue, the defense's representations of Video No. 2 proved to be false. Video No. 2 involved an entirely separate incident that occurred at the same location, but some nine months earlier, in January FINDINGS OF FACT 1. Respondent associated with co-counsel, Kenisha Parks, to assist in Mr. Boudreaux's defense at trial. Ms. Parks was responsible for that aspect of the case involving Video No. 2 and the direct examination of the defense witness Lionel Rayford. [FN 2] [FN 2] Not before this committee is the issue of whether an attorney associated with co-counsel (as opposed to a supervising attorney) has a responsibility to oversee or monitor the conduct of the associated attorney to avoid circumstances such as occurred here. 2. Ms. Parks' investigator located and copied the video footage, now referenced as Video No. 2, from the MySpace page of one of the September 16, 2007 fight victims. Transcript of January 22, 2014 Testimony of Respondent ("Respondent Testimony"), pp , Ms. Parks was solely responsible for preparing Mr. Rayford to testify about Video No. 2 and, while Respondent may have been in the conference room working on his own preparation for trial during Ms. Parks' meeting with Mr. Rayford, Respondent did not participate in that meeting. Id. pp The defendant Mr. Boudreaux was experienced in technical matters and was asked to make a copy of the MySpace video footage for use at trial. Id., pp The evidence did not show that Respondent directed Mr. Boudreaux to "alter" the MySpace video footage improperly. 5. Two days before the start of the criminal trial, the state filed a motion in limine contending that Video No. 2 should be excluded from trial because it was not relevant, was unduly prejudicial and constituted inadmissible character evidence. At that time, the state contended that Video No. 2 occurred in March 2006 and involved different parties. 5

6 6. The state's representations about the March 2006 date and the parties appearing in Video No. 2 were incorrect. 7. On June 21, 2008, the state's motion in limine was argued before Judge Arthur Hunter. While Ms. Parks was primarily responsible for opposing and arguing against the Motion, Respondent Testimony, p , Respondent also spoke in support of Video No. 2's relevance. Respondent Exh. 8(b), R Judge Hunter denied the Motion in Limine and ruled that Video No. 2 could be shown to the jury, stating, "The Court finds it to be relevant and probative." Boudreaux Tr. Vol. III, p Ms. Parks played Video No. 2 before the jury during her questioning of Mr. Rayford. Boudreaux Tr. Vol. III, pp Ms. Parks questioned Mr. Rayford about Video No. 2 on direct examination at trial. At the conclusion of the testimony of Mr. Rayford, without explanation, Ms. Parks did not offer Video No. 2 into evidence. Boudreaux Tr. Vol. III, p Subsequently, Judge Hunter ruled in chambers that Video No. 2 could be used by the defense merely as a demonstrative aide during closing arguments and that the jury was not permitted to view the video during its deliberations. Boudreaux Tr. Vol. IV, 6/22/08, pp After the testimony of the state's rebuttal witness, Ashley Barriente, the Respondent had reason to suspect that the events depicted in Video No. 2 may not have occurred on September 16, 2007, as originally represented by the defense. 13. At the time of closing argument, Respondent had doubts about the date Video No. 2 was actually recorded, but he also had doubts about the credibility of Ms. Barriente and the truthfulness of her testimony. 14. Respondent questioned Ms. Barriente's credibility due to the fact that (1) she was a close friend of the fight victims; (2) she testified that she was on Bourbon Street that night celebrating a high school graduation in January; (3) the people in the video were wearing short sleeved shirts and tank tops in January; and (4) the state originally argued that the video was taken in Respondent Testimony, pp When Respondent expressed concern to his client about the use of Video No. 2, with closing arguments set to begin, Mr. Boudreaux insisted that Respondent refer to Video No. 2 in his closing argument. Id. 6

7 16. In his closing argument, Respondent argued that: (1) Ms. Barriente was not credible and, alternatively, (2) even if the jury believed that Video No. 2 was recorded on January 13, 2007, and not on the night in question, Video No. 2 proved that the alleged victims in the Boudreaux case had a history of aggression and violence, thus supporting defendant Boudreaux's claim of selfdefense. 17. Respondent knew nothing about Video No. 2 in addition to the evidence and testimony presented to the Court. At no point did Respondent learn any facts or information regarding Video No. 2 that had not already been disclosed to the Court. 18. Before filing his responses to ODC's charges, Respondent did not refresh his memory about the events of over three years before, and made misstatements about the events in both his sworn statement and his response to the charges. See, e.g., Respondent Testimony, p DISCUSSION The Respondent was placed in a difficult position in the heat of the trial. On the one hand he reached the point where he had doubts about Video No. 2, and on the other he was faced with the possibility that acting on those doubts would be highly prejudicial to his client. However, all of the facts and circumstances known to Respondent that caused him to question Video No. 2 were disclosed to the Court, which apparently did not find the facts and circumstances sufficient to prohibit Video No. 2's use at trial. In addition, Judge Hunter testified that Mr. Boudreaux's motion for postconviction relief, which was based upon his counsel's representation at trial that Video No. 2 occurred September 16, 2007, was denied. A hearing was conducted on the motion, with testimony from Respondent and other witnesses. In his reasons for denying Mr. Boudreaux's motion, Judge Hunter wrote that Respondent did not knowingly present false evidence and that Respondent's alternative argument in closing was an adequate remedial measure. February 11, 2014 Testimony of Judge Hunter ("Hunter Testimony"), pp , 62-63, 65. Further, Judge Hunter testified that if an attorney had "presented evidence [at trial that the Judge] thought was false," he "would've conducted a contempt hearing." Hunter Testimony, pp Judge Hunter did not order a contempt hearing, based upon the same evidence known to the Court as was known to Respondent. Based upon the testimony and evidence, the ODC has not proven by clear and convincing evidence that the Respondent knowingly "[made] a false statement of fact or law to a tribunal or fail[ ed] to correct a false statement of material fact or law previously made to the tribunal by the lawyer." Rule 3.3(a) (1). Nor did the ODC prove by clear and convincing evidence that the 7

8 "Respondents offer[ed] evidence that the lawyer [knew] to be false" at the time it was offered. Rule 3.3(a) (3). In hindsight, and distanced from the pressures of the immediacy of the ongoing criminal trial, one could have devised a more appropriate response to the facts as they evolved. However, faced with his doubts about the testimony of the rebuttal witness and the emerging doubts about the veracity of the Video No. 2, Respondent took what he thought at the time were "reasonable remedial measures." Judge Hunter knew all of the facts that were known to Respondent and allowed the trial to proceed with the evidence. Judge Hunter did not declare a mistrial or otherwise react when presented with the conflicting testimony about Video No. 2. Respondent had no privileged or additional information to require any disclosure to the Court, as all had been disclosed already. Given these facts, as discussed more fully below, this committee concludes that the ODC has not carried its burden of proof and cannot recommend sanctions in this matter. I. Respondent was not initially responsible for the evidence or the testimony of Mr. Rayford Respondent testified that he associated co-counsel, Kenisha Parks, to assist in the trial. Respondent Testimony, pp , He testified that Ms. Parks was responsible for finding the video (through her investigator) and for all aspects of the presentation of the video and the witness to testify about the video. See, e.g., id, pp , The Respondent did not participate in the preparation of Video No. 2 for trial and did not participate in the preparation of Mr. Rayford, for his testimony. The ODC presented no evidence to contradict these facts. While Mr. Rayford testified that Respondent was in the room when Ms. Parks was preparing him for testimony, this does not refute the Respondent's testimony that he was not involved in the preparation because even Mr. Rayford admits that Respondent was sitting in another part of the room. At trial, Ms. Parks continued with her designated responsibilities with respect to Mr. Rayford and Video No. 2. She elicited the testimony from Mr. Rayford and showed the video to the jury. Mr. Rayford testified at the hearing in this matter. He believed that Respondent was in the room when Ms. Parks was reviewing the video with him and prepping him for his trial testimony. However, even if the committee found Mr. Rayford's testimony to be credible - which it did not - that alone was not sufficient to establish that Respondent learned then that the video was not as represented. No one has disputed the fact that only Ms. Parks prepped Mr. Rayford for his trial testimony while reviewing Video No. 2 with him. II. The state filed a Motion in Limine When the state realized that the defense would be using Video No. 2, the state filed a motion in limine seeking to have the Court suppress the video. At that time, the state argued that the video was made in March 2006 and thus was not relevant to the September 2007 fight at issue. The state also represented that the 8

9 fight on Video No. 2 involved different people than on the night of September 16, While Respondent did speak in support of the video, the state's representations in its motion in limine were themselves incorrect and were insufficient to convince Judge Hunter to suppress the evidence or to delve further into the matter. At this time, all facts known to Respondent were disclosed to and known by Judge Hunter. III. The state presented a rebuttal witness For the first time, in rebuttal, the state presented evidence purported to show that Video No. 2 was not made on the night in September 2007, when the fight at issue occurred. The testimony of the rebuttal witness was itself suspect, however, based upon the facts as known to Respondent. The witness' credibility reasonably could be questioned due to her relationship with the victims. In addition, the witness contended that the video was taken in January 2007 after a high school graduation, when most high school graduations are in May or June. Further, the people in the video were dressed in summer attire (although a warm January is not uncommon in New Orleans). Thus, in the throes of a criminal trial, Respondent's duty to his client tipped the scale, and he reasonably questioned the veracity of the rebuttal witness. Again, at this time, all facts known to Respondent had been disclosed to and were known by Judge Hunter as well. IV. Mr. Boudreaux insisted that Respondent rely upon the video When Respondent privately questioned his client about the veracity of the video, in the courtroom and immediately preceding closing arguments, Mr. Boudreaux insisted that the video was relevant and should be used. While in hindsight, perhaps Respondent should have asked for a recess and met with Judge Hunter in chambers to discuss his doubts about the video; however, Respondent knew nothing more than Judge Hunter knew at that time. Thus, Respondent had nothing new to disclose to the Court or to require Respondent to insist on a mistrial, to the detriment of this client. V. Respondent called a criminal defense expert in his defense to the ODC's charges At the hearing in this matter, Respondent called an expert in criminal procedure and trial, Jim Boren. Transcript of January 23, 2014 Testimony of Jim Boren ("Boren Testimony"), pp. 58; et seq. Mr. Boren testified that given the facts presented, and considering the stage of the trial, "it was legitimate" for Respondent to argue in the alternative in his closing argument. Id., pp Considering the obligations of a criminal attorney to his client and the circumstance in this case, Mr. Boren "would have used the tape, used the video." Id., p Had evidence been produced that Respondent lied and actually falsified the video, Mr. Boren's answer would be different. Id., pp

10 VI. Respondent acted reasonably, considering the circumstances Respondent discussed Video No. 2 in his closing argument in the context of challenging the credibility of Ashley Barriente: This video, Ladies and Gentleman, was available to the State and the district attorney chose to still prosecute this case because that was their story and they were sticking to it. They went as far as to bring a terribly un-credible woman in here to say, Hey, I'm best friends with Rocky's girlfriend. That happened in January. Yeah, all these guys were wearing T-shirts and tank tops in the cold of January. I remember because it was January 13 and my sister graduate[d]... Graduating from what? There are no schools that graduate in the middle of January. Boudreaux Tr. Vol. IV. pp Id. at p. 24. Ladies and Gentlemen, we want to talk about credibility, we want to talk about witness credibility? The witnesses that testified on behalf of the State, you had a bunch of convicted felons and liars that testified here today. In his closing, Respondent also posited, alternatively, that Video No. 2 may have been recorded on January 13, 2007, and not September 16, 2007: Id at p. 37. You know that video I showed you with Big Baby and Rocky and Twin and four other guys beating Robert down. The D.A.'s office didn't want you to see that. Did you see how they fought to keep that out? They didn't want you to see that and they still don't want you to see that, but you have seen it. And even if you believe this cockamamie story about this lady that comes in and said it happened in January, wow, what a coincidence. You mean some guys were talking to you and grabbed you and this mob stomped him to the ground just like the same thing happened on September 16, 2007? Wow, that's actually worse, Ladies and Gentlemen. Because if you believe that and that's true, then maybe that was the first time and this was the second time or was it the third time that something like this happened. And we've got to send a message as citizens that we are not going to tolerate this. 10

11 Again, in hindsight, the alternative argument may have been presented in better form. However, considering the immediacy of the circumstances, this committee cannot say that the ODC proved by clear and concerning evidence that the Respondent did not take reasonable remedial measures. The cases cited by the ODC all involved circumstances in which the attorney learned a fact, not known to the court, that led the attorney to believe that the evidence presented was false. That is not the case here. The ODC does not contend that the Respondent knew any additional facts that were not disclosed to and thus known by the Court already. As quoted by the ODC in its post-hearing brief, Comment (8) to Annotated Model Rule 3.3 supports Respondent's actions at trial: The prohibition against offering false evidence only applies if the lawyer knows the evidence is false. A lawyer's reasonable belief that the evidence is false does not preclude its presentation to the trier of fact.... [A] lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, [however] the lawyer cannot ignore an obvious falsehood. Considering the facts and evidence, as well as the credible testimony of Respondent and his expert, Mr. Boren, the ODC did not prove by clear and convincing evidence that Respondent knowingly presented false evidence to the Court or failed to take reasonable remedial measures when faced with doubt. The Committee concluded that Office of Disciplinary Counsel failed to carry its burden to prove by clear and convincing evidence that Respondent violated Rule 3.3(a)(1) or (3). Therefore, the Committee recommended that the formal charges be dismissed. ANALYSIS OF THE RECORD BEFORE THE BOARD I. Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of Louisiana Supreme Court Rule XIX. Rule XIX, 2(G)(2)(a) states that the Board is to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges and petitions for reinstatement, and prepare and forward to the court its own findings, if any, and recommendations. Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is 11

12 that of manifest error. Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review of the hearing committee s application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). I. The Manifest Error Inquiry The factual findings of the Committee do not appear to be manifestly erroneous. The Committee s findings are supported by the record. II. De Novo Review The Committee correctly applied the Rules of Professional Conduct. The record indicates that Respondent did not violate the Rules as charged. Rule 3.3(a)(1) states that a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. Rule 3.3(a)(3) states that a lawyer shall not knowingly offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. The Committee declined to find either Rule violation alleged in this matter, finding that ODC failed to prove by clear and convincing evidence that Respondent knowingly presented false evidence to the trial court or that he failed to take reasonable measures when faced with doubt about the authenticity of the evidence presented to the trial court. The Committee further determined that ODC s primary witness Lionel Rayford, who originally identified the video in the Boudreaux trial, was not a credible witness. ODC s second primary witness, the complainant Ray Boudreaux, refused 12

13 to testify invoking his Fifth Amendment rights, thereby causing ODC to abandon allegations related to the respondent s alleged knowledge and participation in the preparation of the video because of the lack of admissible evidence to support those allegations. See 4/10/14 ODC Post Hearing Brief, p. 2. The Committee determined that Respondent and his expert witness Jim Boren provided credible testimony. Hearing Committee Report, p.12. The heart of this matter involves the credibility calls made by the Committee regarding the truthfulness of Respondent s statements made during the three day hearing of this matter. The Committee, based on Respondent s live testimony and the evidence before it, determined that they believed and accepted the Respondent s version of the events in question. ODC contends that the Respondent has given multiple, contradictory and inconsistent statements about his prior knowledge of the video s falsity, rendering his version of events extraordinarily suspect. See 8/5/14 Brief of Office of Disciplinary Counsel, p. 7. ODC points out that Respondent s testimony during his sworn statement on November 18, 2011 and in his initial letter of response to ODC differ from the testimony provided during the hearing before the Committee. However, after three days of testimony at the hearing, the Committee declined to find the discrepancies to be conclusive that Respondent changed his story in order to avoid a finding of misconduct. Instead the Committee accepted Respondent s explanation that he did not review the transcript of the Boudreaux trial in advance of the sworn statement, and instead answered ODC s questions from his memory of the trial which occurred three years prior to the date of the sworn statement. Hearing Transcript, Vol. II, pp Indeed the transcript of the sworn statement shows that he repeatedly testified that he didn t recall or couldn t remember the information being asked of him. In his questioning of Respondent, Hearing Committee Member Mr. Michael Ecuyer accurately summed up the nature of the problem concerning Respondent's mistaken sworn statement. Because he was unprepared when he testified, Respondent incriminated himself in his sworn statement for conduct that the Boudreaux 13

14 transcript and record substantiate he did not do and for which he was not responsible. In that regard, the following discussion between Mr. Ecuyer and Respondent occurred: Q. Okay. Mr. Wright, much has been made about your sworn statement when ODC prefaced the questions with the instruction to give us your best recollection of events during the sworn statement. Is it fair to say that having given that sworn statement and subsequently either preparing for the criminal matter or preparing for the disciplinary matter, that you have since reviewed the trial transcripts and other documents, and you've found some of those statements to have been inaccurate? A. That is correct. Q. Were any of the statements you gave to ODC during that sworn statement purposefully misleading? A. No. Q. In fact, some of those statements in the sworn statement are more harmful to you even though they were inaccurate, including that you took Lionel Rayford at trial. Correct? A. That is correct. Q. You wouldn't have knowingly made that admission, would you? A. No. Hearing Transcript, Vol. II, pp (emphasis added). As such, the Committee made a finding of fact that Respondent did not review the underlying three-year-old trial transcript in advance of his sworn statement and made misstatements about the events in both his sworn statement and in his response to the charges. The Committee found his live testimony before them to be credible, concluding that he did not offer false evidence to the court, did not make a false statement of fact to the court and likewise did not fail to correct a false statement made to the court. As the most important role of the hearing committee is to assess the credibility of the witnesses before it, 4 the Board adopts the Committee s credibility assessment of Respondent and 4 Although [the] court is the trier of fact in bar disciplinary cases, we are not prepared to disregard the credibility evaluations made by those committee members who act as the eyes and ear of [the] court. In re Bolton, (La. 6/21/02), 820 So.2d 548,

15 the additional witnesses who testified before them. It is clear that the Committee properly considered and weighed the entire record before concluding that the matter should be dismissed as there is no clear and convincing evidence of misconduct. RULING Based upon the foregoing, the Board adopts the factual findings and legal conclusions of the Hearing Committee. Accordingly, the Board hereby dismisses the formal charges filed against Respondent, Eric Anthony Wright, bearing docket number 13-DB-003. The costs and expenses of this proceeding are to be borne by the Disciplinary Board. LOUISIANA ATTORNEY DISCIPLINARY BOARD John T. Cox, Jr. George L. Crain Anderson 0. Dotson, III Carrie L. Jones Tara L. Mason R. Lewis Smith, Jr. Linda P. Spain R. Steven Tew BY: Carl A. Butler FOR THE ADJUDICATIVE COMMITTEE 15

16 APPENDIX RULE 3.3. CANDOR TOWARD THE TRIBUNAL (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; *** (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. 16