After arrest in 40-year-old rape chilly case, prosecutor-turned-defense attorney informed to withdraw

Tommy Damico was a 29-year-old assistant district attorney on Aug. 11, 1981, when he attended and took part in an interview of a woman who claimed she had been abducted at gunpoint from the parking lot of the old Woman’s Hospital on Airline Highway and raped.

The case went cold until September 2019, when Donald Ray Dunn Sr. was arrested after DNA evidence from the 1981 crime was re-examined by the Louisiana State Police crime lab with updated technology. 

Dunn, 58, of Baton Rouge, was indicted by an East Baton Rouge Parish grand jury in January 2020 on counts of aggravated kidnapping and aggravated rape. Later that month the local law firm of Damico & Stockstill — where Damico is a partner — enrolled to represent him.

Tommy Damico is now a prominent criminal defense attorney, and his law partner, Brent Stockstill, also is a former prosecutor.

The East Baton Rouge District Attorney’s Office quickly filed a motion to disqualify Damico and his firm from representing Dunn due to a conflict of interest: Damico’s early involvement in the case as a prosecutor.

State District Judge Fred Crifasi denied the state’s motion, but the state 1st Circuit Court of Appeal reversed the judge in December, and last month the Louisiana Supreme Court denied Dunn’s appeal — meaning he will have to find new counsel.

Damico didn’t mince words Wednesday when asked how he felt about the situation.

“I believe it’s absurd,” he said. “Any contact I had over 40 years ago gave me no information about the case that wouldn’t be discoverable today.”

Stockstill, who litigated the matter on behalf of Damico and the firm, said in an interview that he firmly believes no conflict exists and he alleged that the District Attorney’s Office “created a conflict” to exclude the firm from representing Dunn.

“The only logic I can see is that they don’t want to try the case against us,” Stockstill said.  He said Dunn will now have to go to trial “without the counsel of his choice.”

East Baton Rouge District Attorney Hillar Moore III, who took office in 2009, expressed his utmost respect for Damico and Stockstill but said the appeals court’s decision was correct given the particular circumstances of the case.

Moore said the victim recounted the intimate details of her traumatizing experience during a 20-minute interview at which Damico was present, and then Damico asked her specific follow-up questions about her attacker’s description, the weapon he used and vehicle he drove.

“Because of Mr. Damico’s participation in this matter as an ADA in 1981, his present-day participation as defense counsel presents an incurable direct conflict of interest that can only be resolved by disqualification of both him and his firm,” Moore said.

While it is true that prosecutors don’t represent victims as “clients,” he noted, they aren’t without their ethical obligations to those victims and the public at large.

“When Mr. Damico took his oath of office as an assistant district attorney in 1979, he was informed — as my current ADAs still are — ‘No . . . assistant district attorney shall appear, plead, or in any way defend or assist in defending any criminal prosecution or charge,'” Moore said.

“Admittedly, that oath prescribed upon Mr. Damico’s leaving the DA’s office, but the promise he made to the State of Louisiana, to the public, and to the victims with whom he interacted as an attorney for the state remains intact,” he added. “To ignore that oath would add further insult to this victim and result in a direct conflict of interest. At the very least, it creates an appearance of impropriety.”

Assistant District Attorney Sonya Cardia-Porter, who is prosecuting Dunn, stated in a court filing that she has spoken with the victim in the case about this issue, and the woman indicated she is not comfortable with Damico participating in representing the defendant since he was involved in the case as a District Attorney’s Office representative.

“She has indicated that she feels that his representation as a defense attorney in this matter is not the proper or moral thing to do,'” Cardia-Porter wrote.

Stockstill said he believes there is a “significant chance” that a conviction in the case would be reversed because of the disqualification issue.

But Cardia-Porter wrote that disqualification was necessary “to avoid the possibility of a mistrial, a reversal of conviction, or any future claim of defense attorney conflict and/or allegation of ineffective assistance of counsel.”

She acknowledged that a criminal defendant has the right to retained counsel of his choice but said that right “is not unfettered.”

“In the instant case there is a serious conflict,” she wrote. “The issue of a former prosecutor representing a defendant of a case the prosecutor was involved in the initial phases of investigation is definitely a conflict.”

Cardia-Porter noted that the Rules of Professional Conduct state that a lawyer “shall not otherwise represent a client in connection with a matter in which the lawyer participated personally or substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.”

Stockstill counters there was no substantial participation on Damico’s part, and he said Damico does not recall those events.

“Even if Thomas Damico has no recollection of the investigation or facts of this case at this time, the representation of Donald Dunn creates great confusion for society in the appearance of divided loyalties,” Cardia-Porter stated.

“A lawyer cannot represent both sides of a dispute,” she wrote. “In the United States, our system is built on an adversarial process, meaning that each side needs separate representation to stand up for their rights. There are some conflicts that can be waived but it is impossible to waive the conflict of being on two separate sides of the same case.”

If Damico were allowed to remain on the case, she said, he would find himself in the “unavoidable position” of being required to cross-examine witnesses he encountered in this case 40 years ago.

Stockstill wrote in a court filing that Damico’s actions were as an “observer” to a recorded statement by the victim, “not the actions of an Assistant District Attorney engaged in the prosecution of a criminal offense.” He said there was no suspect and no prosecution in 1981.

Stockstill said it was not until 2019 that the District Attorney’s Office actually became involved in the prosecution once Dunn was identified as a suspect.

“It is impossible to be engaged in a prosecution in which you do not know who the target is,” he added. “No prosecutorial actions were taken by the District Attorney’s office until 2019 when Donald Dunn’s DNA was allegedly sufficient for a judge to issue an arrest warrant.”

Cardia-Porter, however, wrote that the victim’s interview demonstrates Damico was more than an observer.

“He is now a potential witness and he may possess information that may be essential to present in the prosecution of this case before a jury,” she added.

Crifasi is scheduled to hold a status conference in the case July 27. Dunn does not have a trial date.