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Ash Joshi tells convicted rapist’s family he’ll secretly help on appeal for ...
Ash Joshi tells convicted rapist’s family he’ll secretly help on appeal for $15,000 fee
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THE ATTORNEYS FOR a man convicted in the 2004 rape of a woman during a party at Zoo Atlanta have asked the judge to reopen the case, pointing to a recording of the prosecutor in the case saying he doesn’t think the defendant committed the rape.
The mother of convicted rapist Jason Kyle Hopson made the surreptitious recording of former assistant Fulton County district attorney Ash Joshi during a meeting at which he said that, in return for a $15,000 fee, he and another lawyer had a good chance of having the case reopened or reversed on appeal because testimony during trial convinced him that the victim and a witness were lying.
Joshi, who left the DA’s office in 2005, is heard cautioning the defendant’s mother that “my name cannot appear” on any of the filings because of the conflict between his former position and any role he might play in an appeal.
Joshi also is heard on the recording advising the other lawyer present at the meeting, Lawrence J. Zimmerman, that Joshi’s subornation of perjury might be a viable issue.
Zimmerman was invited to the meeting by Joshi, according to a motion filed Wednesday. He does not practice with Joshi.
“All I did was offer an opinion on one aspect of the case,” Joshi told the Daily Report on Thursday. “My mistake was in ever trying to help those people. I should have just referred the case on, but I was trying to help them, and to help another lawyer on a possible case … In hindsight, I never should have had the consultation.”
Joshi wasn’t retained for the appeal and didn’t accept any money from the defendant’s family, but defense attorneys Lee Sexton and Scott Key of Stockbridge’s Sexton & Key urged Fulton County Superior Court Judge Constance Russell to reopen the case, citing the recordings as new evidence. Sexton said Joshi had “a duty to stop the trial” once he realized the witnesses were providing false testimony.
Hopson faced multiple charges, including rape, kidnapping, assault and battery for the June 18, 2004, incident at Zoo Atlanta, where, according to prosecutors, the 21-year-old victim may have been drugged before being raped in a closed-off portion of the zoo compound.
In January 2005, Hopson was acquitted of all but the rape charge and sentenced to 15 years in prison. In May 2005, Joshi left the DA’s office to start a solo criminal defense practice in Atlanta.
Last year, according to Key, Hopson’s sister noticed Joshi’s name among lawyer listings and contacted him “not because she was interested in hiring him, but because she had some questions about the case.”
Joshi told Hopson’s family that “he’d always felt bad about that case,” according to Key, and “made the proposition that he could do something for them if they’d pay him money.”
Joshi told the family that he believed the victim and witness had provided false testimony, according to Key.
“They know something wasn’t right, and they wanted it on the record,” said Key, and they began recording their conversations with Joshi; the recording played in court Wednesday was from a meeting last September.
On Wednesday, Assistant District Attorney Elizabeth A. Baker sought unsuccessfully to stop the tape from being played in court, asserting that Joshi’s opinion had no bearing on the evidence of the case and terming the recording “irrelevant” to Hopson’s conviction.
Joshi was clearly uncomfortable at the hearing, confirming the contents of the recording prior to its being played and asking whether he could be excused as Key prepared to play the CD on a laptop computer.
“You are not,” replied Russell curtly.
On the recording, Hopson’s mother mentions that she is seeking a second mortgage for the $15,000 requested by Joshi, and then asked, “Do you believe in your heart Jason raped that girl?”
“No,” replied Joshi, “and you know when the change occurred? … It was when I realized the friend, Angela, was lying. You may even want to raise that, where I suborned,” he said, apparently to Zimmerman.
The witness and victim testified that she was dragged into a restricted area behind a McDonald’s on the site, but Joshi said the women never told investigators about being dragged.
“That’s when I said to my investigator, ‘these girls are lying,’” he said on the recording. Asked during the meeting whether the issue could provide grounds for a new trial, he responded firmly: “New trial.”
As the meeting drew to a close, Joshi is heard reminding Hopson’s mother that, although he will be doing half the work, his name cannot be associated with the case.
“Everything’s got to have [Zimmerman’s] name on it,” he said.
After listening to the recording, Baker asked whether Joshi’s recorded comments were an accurate assessment of his opinion as to the witnesses’ testimony. “Yes,” he said, “but let me make sure this is very clear: Nobody came to me and said they lied.”
“Do you believe the victim was raped?” asked Baker.
“Yes,” said Joshi, apparently contradicting what he told the defendant’s mother on the recording.
Sexton said that Georgia Bar Rule 3.8, which states that a prosecutor “shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause,” required Joshi to stop the trial at the moment he noticed the conflicting testimony.
“He has an ethical obligation to ensure that testimony is truthful,” he said.
Baker reiterated her opposition to Hopson’s retrial bid.
“There is no evidence the victim has recanted,” she said, a key element for a new trial in rape cases. “While I disagree with [Joshi’s] conduct, that doesn’t change the facts.”
Russell allowed the defense team 20 days to rebut the state’s motion to deny a new trial.
According to the motion Sexton and Key filed Wednesday, Joshi violated several bar rules in addition to the Section 3.8 requirement regarding probable cause. He is accused of breaking rule 3.4, which mandates that a “lawyer shall not knowingly offer evidence that the lawyer knows to be false;” rule 1.9, which governs conflicts of interest and mandatory disclosure of such; and rule 4.2, which bars an attorney from seeking to represent a client already known to be represented by counsel.
Atlanta criminal defense attorney Brenda Joy “B.J.” Bernstein, a former Gwinnett County ADA, said that if a prosecutor knows a witness is lying, “you absolutely have a duty to stop it. Yes, you represent the state, but you also have the essential duty to seek justice, to seek the truth. You cannot allow perjured testimony.”
She noted that legal rules of ethics require an attorney entering a case in which he or she may have a conflict with a former client requires written permission from that client.
“When I started my practice,” she said, “I made a rule that I wouldn’t take any cases that were opened by my old department before my tenure ended, even if I weren’t involved and knew nothing about them and even if [Gwinnett County District Attorney] Danny Porter said, ‘OK, I’ll talk to you.’
“If I had to give up some business—and when I was starting out, I needed it—so be it.”
On Thursday, Joshi defended his handling of the case and expressed regret at consulting with Hopson’s family. “No defendant’s family ever wants to hear that they’re guilty,” he said. “I was trying to help; I never should have said, ‘I know she’s lying.’ It’s my opinion; I can’t know that.”
As to his advice to Zimmerman concerning the subornation, he said, “I was telling him that, if he took the case, he should explore every issue—just as Mr. Sexton is doing now, which is what he’s supposed to do.”
Zimmerman and Joshi said that, within an hour of the recorded meeting, they decided Joshi could have nothing to do with the case.
“I told him, ‘If I take this, you cannot be involved at all.’” Zimmerman said Thursday. “I wish I’d never been dragged into it myself.”
The case is State of Georgia v. Jason Kyle Hopson, No. 04SC22730.
Out of the gloom a voice spake unto me. 'Smile and be happy, Things could get worse."
So I smiled and was happy, and behold... Things did get worse.
16th-June-2007
