Judge puts restrictions on ex-Wake prosecutor who withheld evidence
Posted March 21
Raleigh, N.C. — A former Wake County prosecutor who withheld evidence from defense attorneys in a 2014 robbery trial cannot work as a prosecutor or provide legal representation to any government agency for two years, a Superior Court judge ruled Tuesday.
Judge Donald Stephens didn't suspend Colleen Janssen's law license – she will be able to work in private practice during those two years – or issue any other punishment for her violations of the code of professional conduct for attorneys.
"Those who hold public office and prosecute persons accused of violating the law must themselves comply with the law," Stephens wrote in a 16-page ruling. "A prosecutor's failure to comply with these (highest) ethical standards impugns the integrity of the court system and brings that system into disrepute."
Janssen, who resigned as assistant district attorney last July, admitted in a three-day disciplinary hearing this month that she made mistakes in her October 2014 prosecution of Barshiri Sandy and Henry Surpris but insisted she never intended to cause any harm. Her attorneys blamed her lapses in judgment on her emotional state following her father's kidnapping.
"Ms. Janssen accepts the court's ruling and will comply with it," defense attorney Joe Zeszotarski said.
It was appropriate for the Wake County Superior Court to address conduct that occurred in a case before the court," said Katherine Jean, chief counsel for the North Carolina State Bar. "The court’s order of discipline addresses the material issues of the case, and the State Bar accepts the court’s reasoned decision."
Sandy and Surpris were charged with robbing Marcus Smith in April 2013. The two men confronted Smith in his garage and exchanged gunfire with him before fleeing the scene, according to court records.
Smith testified at trial that they robbed him of $1,153 in cash and a ring, while the defense argued that Smith was a drug dealer who hadn't delivered some marijuana they had bought. Smith denied any involvement with drugs, and Janssen repeatedly said during testimony and in her closing argument that there was no evidence to back up Sandy's and Surpris' claims.
A Raleigh police detective and a federal prosecutor both said, however, that Janssen knew Smith was the focus of a drug investigation and asked that they not file charges against him until after her trial.
The North Carolina Court of Appeals ruled last June that Janssen violated the defendants' right to a fair trial by not informing their attorneys of the pending case against Smith. The judges overturned the men's convictions, and Wake County District Attorney Lorrin Freeman then dropped the charges against them.
Janssen said during the disciplinary hearing that she wasn't trying to salvage the credibility of her star witness and that she only wanted to prevent Smith, who was leery about testifying, from getting spooked. Still, she admitted she should have corrected his testimony about not being involved with drugs.
"Once Janssen had obtained the concurrence of investigating officers to delay charging Smith, her course of conduct demonstrates an effort to refrain from receiving and to avoid exposure to specific information about the ongoing Smith drug investigation," Stephens wrote in his ruling. "Her conduct in that regard, whether conscious or not, borders on willful blindness."
The judge also said Janssen demonstrated "a negligent indifference" to the defendants' rights and "provided incomplete and inaccurate information" to her supervisor, who likely would have told her to disclose the investigation of Smith to the defense attorneys.
"It appears clear to the court that there was something about this home invasion case and about the events occurring in Janssen's life that impacted her decisions to engage in her unusual course of conduct," Stephens wrote.
Six months before the trial, Janssen's father was kidnapped from his Wake Forest home by a group of gang members under the direction of Kelvin Melton, whom Janssen had prosecuted in 2012. Authorities said Melton used a phone smuggled to him in prison to provide instructions to his subordinates, including how to kill Frank Janssen, dispose of his body and clear up all evidence of the crime.
FBI agents were able to track Melton's phone calls and rescued Frank Janssen from an Atlanta apartment five days after he was abducted.
"The court finds that these unique and unusual events played a major role in the thought processing and decision making of prosecutor Janssen," Stephens wrote. "Those factors and events caused her to develop a 'tunnel vision' focus in her prosecution of the home invasion case and to lose sight of her due process obligations to Sandy and Surpris. She lost her professional compass. The events which placed the Janssen family in peril carried over into her professional life and significantly impaired her professional insight and judgment."