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Justices uphold referee’s decision after OLR appeal

The Wisconsin Supreme Court upheld a referee’s decision Tuesday that a Racine County prosecutor should not be disciplined for allegedly withholding evidence that could exonerate someone she was prosecuting.

The Office of Lawyer Regulation had requested an appeal of the referee’s decision, which found that Sharon Riek did not act unethically when she gave evidence to defense attorney Mark Lukoff four days before trial, despite having it for several months.

The court said the defense knew about the information for some time, and Riek’s actions didn’t constitute a withholding of Brady material or exculpatory evidence.

Riek, contacted Tuesday morning, said she is “thrilled to be vindicated.”

“It’s been my position all along [that] I didn’t do anything wrong,” Riek said.

The OLR’s complaint against Riek was filed in May 2011. It centered on evidence and statements made in a case involving defendant Tyrone Smith, who was pulled over and arrested in August 2008 on a marijuana-possession charge.

Three days after the arrest, Isiah Simpson, who was a passenger in the car, told authorities the marijuana was his. The charge against Smith was dropped in March 2009, on the eve of trial, after a law enforcement officer interviewed Simpson, according to the decision.

The OLR complaint stemmed from a belief that Riek adversely affected the case by not turning over a November 2008 statement Simpson made to former Racine County District Attorney Michael Nieskes until four days before the March 2009 trial date. Nieskes, who is now a prosecutor in Saint Croix County, wrote a note after the conversation with Simpson, and Riek later said she found the note among other papers on her desk.

The actions also did not rise to the level of unprofessional conduct, the state Supreme Court said, and did not adversely affect a defendant’s case because the charge was eventually dropped.

“A single inadvertent failure does not necessarily constitute an ethical violation,” the decision stated. “Negligence and ethical misconduct are not necessarily synonymous.”

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