BEFORE THE DISCIPLINARY BOARD
OF THE VIRGINIA STATE BAR
IN THE MATTER OF VSB Docket No. 01-101-0653
PETER AUGUSTUS THEODORE
The Virginia State Bar, by Richard
E. Slaney, Assistant Bar Counsel, and the Respondent, Peter Augustus Theodore,
by his counsel, Rhetta M. Daniel, Esq., presented an Agreed Disposition endorsed
by counsel and by Mr. Theodore.
Having considered the Certification and the Agreed Disposition, as well as the statements of counsel, and with one minor clarification, it is the Board's decision to accept the Agreed Disposition, and as such, the Board finds by clear and convincing evidence as follows:
I. STIPULATIONS OF FACT
1. At all times material to this
Certification, the Respondent, Peter Augustus Theodore (Theodore) was an attorney
licensed to practice law in the Commonwealth of Virginia.
2. In 1997, Theodore represented
a James Reid (Reid) on a charge of capital murder in the Circuit Court of Montgomery
County. Theodore and his co-counsel recommended Reid enter an Alford plea to
the capital charge, and Reid did so. Reid was found guilty and sentenced to
3. Thereafter, new counsel was appointed
for Reid and a habeas corpus petition was filed in the Supreme Court of Virginia
(the Habeas Action).
4. At the request of the Attorney
General's office, Theodore executed an affidavit (the Affidavit) which was filed
in the Habeas Action.
5. The Bar's evidence would be that,
in the Affidavit, Theodore made several assertions under oath which are false
A. In paragraph 7, Theodore states "In Montgomery County, I represented Mark Lilly who was charged with capital murder. Lilly went to trial for first degree murder before a jury and was given a sentence less than his two co-defendants received who were both charged with the same murder."
In fact, as indicated by Lilly's
conviction order, Lilly pled guilty, and did not have a jury trial.
B. In paragraph 7, Theodore states "In Montgomery County, I also represented Graham, who was charged in another case with capital murder. I was able to obtain a plea agreement by which Graham pleaded to first degree murder."
In fact, as indicated by Graham's
conviction order, Graham was charged and pled guilty in Pulaski County, not
C. In paragraph 10, Theodore discusses consulting with experienced defense counsel and capital resource groups both locally and elsewhere, and at the end of that paragraph states "No one recommended that he be tried by a jury." In paragraph 28,Theodore discusses expert opinion on whether Reid was incapable of forming the requisite intent to commit the crime charged, opines that no reasonably competent defense counsel would have presented such a defense, and concludes by stating "Everyone we consulted with agreed that our only chance was to plead guilty and present a strong case in mitigation."
Three local attorneys, Christopher
Tuck, James Turk and Frederick Kellerman, would testify they advised Theodore
not to plead Reid guilty.
D. In paragraph 28, when discussing a possible voluntary intoxication defense, Theodore states "In my experience, juries in Montgomery County do not generally accept voluntary intoxication as a defense to murder."
Theodore has never had a criminal
jury trial in Montgomery County, and cannot identify a case in that County in
which voluntary intoxication was raised as a defense to a capital murder charge.
6. In regard to the matters contained
in 5A and 5B above, Theodore acknowledges those errors. His evidence would be
those errors were inadvertent and he did not notice them at the time he signed
the Affidavit. His evidence would further be that, upon discovery of those errors,
he instructed the drafter of the Affidavit to correct them and promptly did
so by signing a second affidavit which was thereafter filed in the subsequent
federal habeas proceeding pending at that time.
7. In regard to the matter contained
in 5C above, Theodore's evidence would be that he was never advised by any of
the three attorneys referenced not to plead Reid guilty. Theodore's co-counsel
has also previously stated under oath and would be expected to testify no one
recommended that they plead Reid not guilty. The Bar's evidence would be that
each of the three attorneys referenced did advise Theodore not to plead Reid
8. In regard to the matter contained
in 5D above, both parties' evidence would be Theodore has never had a criminal
jury trial in Montgomery County and is unaware of any case in that County where
the defense of voluntary intoxication has been raised to a capital murder charge.
9. At the time of the events described
above and continuing, Theodore has been diagnosed with intractable nephrolithiasis
(kidney stones) and takes a variety of prescription medications to address this
and other health difficulties.
10. Theodore has no prior disciplinary record.
Assistant Bar Counsel, the Respondent and Respondent's Counsel agree that the evidence at a hearing would support a finding of a violation of the following Rule of Professional Conduct; and accordingly, the Board finds a violation of the following Rule of Professional Conduct:
RULE 3.3 Candor Toward The
The remaining Rule violations charged in the Certification are dismissed.
Pursuant to Part 6, Sec. IV, Para. 13.B.8.c. of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs.
It is further ORDERED that a copy teste of this Order shall be mailed by certified mail, return receipt requested, to the Respondent at his last address of record with the Virginia State Bar, P.O. Box 49, Blacksburg, Virginia 24063-0049, by regular mail to his counsel, Rhetta M. Daniel, Esq., at P.O. Box 5167, Richmond, Virginia 23220-0167, and hand delivered to Richard E. Slaney, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.
Enter this Order this _____ day of October, 2002.
VIRGINIA STATE BAR DISCIPLINARY BOARD
John A. Dezio, Chair