Ex-ADA gets reprimand from Supreme Court Ash Joshi prosecuted defendant then offered to represent him on appeal

  • 2/24/2009
  • R. Robin McDonald
  • Daily Report

A former Fulton County prosecutor who came to prominence as one of the lawyers who prosecuted courthouse killer Brian G. Nichols for rape has received a public reprimand from the Supreme Court of Georgia.

Atlanta attorney Ashutosh S. "Ash" Joshi received the reprimand in a voluntary disciplinary action stemming from another rape case, unrelated to Nichols, that he had prosecuted in Fulton County.

The high court issued the public reprimand that Joshi has admitted that after leaving the Fulton County district attorney's office to go into private practice, he spoke repeatedly with rape defendant Jason Kyle Hopson's family about representing Hopson on an appeal for a $15,000 fee. Joshi had successfully prosecuted Hopson for rape in January 2005 and secured a 15-year sentence, but told the family that he believed that two key witnesses against Hopson, including the victim, had lied under oath, according to the court's reprimand.

Joshi's conversations regarding his prior case violate the Georgia Rules of Professional Conduct. The state Supreme Court determined that Joshi violated a rule barring lawyers from representing private clients in connection to matters in which they earlier had participated as a public officer or employee. The rule is intended to prevent a lawyer from exploiting public office for the advantage of a private client.

A violation of the rule potentially is punishable by disbarment, but the high court determined that a public reprimand was sufficient discipline given that Joshi has no prior disciplinary history, is remorseful and accepts responsibility for his conduct. The court also noted in its order that the State Bar of Georgia, which had been investigating Joshi's conduct, did not object to a public reprimand, and Joshi had submitted letters on his behalf from attorneys and judges attesting to his good character.

Before issuing the public reprimand, the high court secured from Joshi an admission that he had violated the state's professional conduct rules. Last October, the high court rejected Joshi's earlier petition for voluntary discipline, saying the petition was inappropriate because Joshi, at that time, refused to admit that he had broken any ethical rule. Joshi submitted a voluntary petition for discipline after he was notified by the State Bar in
2007 that it had launched an investigation of his conduct in the Hopson case.

On Monday, Joshi referred questions to his attorney, Douglas V. Chandler of Atlanta, adding that he had not had a chance to read the court's order.

"Ash is remorseful for what he did," Chandler said. "And he wished he hadn't talked to [Hopson's] family at all."

Hopson's attorney, J. Scott Key of McDonough, called the high court's action and the State Bar's stance in the matter, "very commendable."

Key said he has filed a habeas corpus petition on behalf of Hopson alleging that Hopson's due process rights were violated when Joshi went forward with Hopson's trial "after acknowledging he knew the victim in the case was lying."
An appeal also is pending before the Georgia Court of Appeals, he said.

Joshi "basically admitted on tape that he did not believe his victim was truthful," Key continued. "He admitted he knew that at the time the trial was taking place. He had an ethical duty to stop the trial . the moment he knew his main witness was not telling the truth."

Key's former law partner, Lee Sexton of Stockbridge-who defended Hopson in Superior Court but is no longer associated with the case-said that he doesn't believe that Joshi, whom has he known for a long time, "was deliberately trying to do anything wrong. He had just gone out into private practice at the time. . I think he just stepped over the line."

But, Sexton added, "The whole system is in question here if it's OK for a district attorney to use a witness he states he knew was lying at the time she gave her testimony. .It violates our canon of ethics to introduce false testimony."

Joshi ran afoul of the State Bar professional rules after he left the employ of Fulton County District Attorney Paul L. Howard Jr. in May 2005-barely two months after Nichols, midway through a retrial of a rape case that had earlier gone into mistrial-went on a shooting rampage in the Fulton County courthouse.

In a separate and unrelated case, Joshi had prosecuted Hopson on charges that, in 2004, he had drugged and then raped his 21-year-old victim in a compound at Zoo Atlanta that was closed to the public. The jury acquitted Hopson of kidnapping, assault and battery but convicted him of rape.

After Joshi opened his own practice in 2005, Hopson's family contacted him.
During subsequent discussions with them, Joshi suggested that testimony during Hopson's trial had convinced him that the rape victim and another witness, both prosecution witnesses, were lying-information that he had not previously disclosed, according to a tape recording of that conversation that was played during a 2007 court hearing and later obtained by the Daily Report.

Asked by Hopson's mother during one meeting if Joshi believed that her son had raped the victim, Joshi told her, "No," adding that he had reached that conclusion when he realized during the trial that the victim's friend was lying. Joshi then suggested that the family might even want to raise, either on appeal or in a motion for a new trial, the question of whether he, Joshi, had suborned perjury during the trial.

Hopson's mother surreptitiously taped that conversation and later provided it to her son's lawyers, whom, according to court records associated with the case, the family had already retained for an appeal prior to contacting Joshi.
Joshi was never retained for the appeal and accepted no money from the family.

But the matter spilled into the public record in a court hearing before Fulton County Superior Court Judge Constance C. Russell in 2007 after Hopson's attorneys petitioned the court for an extraordinary motion for a new trial on the basis of Joshi's taped comments.

Russell denied the motion. "There was a finding by Judge Russell of no wrongdoing," regarding the question of whether Joshi knowingly withheld information from defense lawyers about whether a witness was lying, said Chandler, Joshi's attorney. When Joshi made those comments to Hopson's family in his office, Chandler continued, "He was merely stating an opinion. That's what we told the Supreme Court."

Chandler also noted that during Hopson's trial, Joshi had shared with his supervisor his suspicions about whether the victim had gone voluntarily with her rapist or had been physically dragged to the location where she was raped.
That supervisor promptly told Joshi to offer Hopson's client a deal in which prosecutors would drop all but an aggravated assault charge and give Hopson a five-year probated sentence, Chandler aid.

Hopson's lawyers rejected that proffer. "The witnesses were then put under serious cross examination by Mr. Sexton. The jury ended up acquitting on all charges but the rape," Chandler said.

In Monday's order, the Supreme Court did not find Joshi had violated professional ethics rules pertaining to the duty to disclose information to opposing counsel that a witness had lied, Chandler said.

Shortly after Russell issued her ruling in 2007, Hopson's sister, Jessica Harris, filed a formal bar complaint against Joshi.

In a letter responding to the bar complaint, Joshi wrote that when Hopson's family first contacted him, he had been "hesitant to become involved." But, he said, the family was "adamant about wanting my involvement in that . because I was the prosecutor, I would have greater knowledge of the facts of the case than someone who would simply read a trial transcript." Joshi said he assured them he had no "inside" or "extraordinary" knowledge of the case.

Joshi said he offered instead to team up with an attorney who shared his office suite to pursue a new trial or appeal Hopson's case. That attorney later bowed out because he "was concerned about the appropriateness of my involvement," Joshi wrote in the letter.

"In an effort to not lose the potential client, I made the mistake of not clearly delineating the limit of my involvement which meant that I would not be the attorney, but only help out if needed," he said.

In his letter to bar investigators, Joshi also stated, "I do not know if anyone lied at trial." Joshi said that during the trial he realized that the victim and her friend had presented testimony contradicting that of the police officer who responded to the rape call. That contradiction, he said, "led me to the assumption that someone was lying . . I assumed that the officer did not lie as he had no motive to do so."

But Joshi described that conclusion as "nothing more than a hunch or mere speculation . . At no point did any witness intimate to me any[sic] that they were going to willingly state falsehoods and make misrepresentations. If that was the case, I would have immediately notified the court and dismissed the case. . My regret is for my poor choice of words when speaking with Mr.
Hopson's family. I did not know anyone was lying at trial, I did believe a person, or people were not telling the truth, but I could not confirm my belief. As a prosecutor, this is a common situation. And a great deal of pressure exists to continue with the prosecution even with such a belief because there is no proof of dishonesty."

Joshi also argued in that letter that he had not engaged in any misconduct that would be considered a violation the bar's ethical rules. "I did engage in very poor judgment," he acknowledged, "and was inarticulate in the manner in which I communicated with the Hopson family. In retrospect, I would have changed many things, the first of which was that I should never have done anything more than a referral. . I do not feel those errors are in violation of the bar rules, but I will live with my mistakes regardless. I hope only to learn from this experience, and to be allowed to continue as a productive, useful advocate in the profession that I love."

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