Clerk magistrate ordered to testify at Boston hearing

Attorney for Laura Marshard alleges grudges and gamesmanship are behind accusations of prosecutorial misconduct.

Laura Marshard's disciplinary hearing has come to a close in Boston. — Amanda Lucidi

Liza Williamson, the clerk magistrate at district court in Edgartown, is expected to testify on Thursday at a disciplinary hearing in Boston.

Laura Marshard, the assistant district attorney for the Cape and Islands, and her conduct as a prosecutor are under review by the Massachusetts Board of Bar Overseers.

Ms. Williamson attempted to have her subpoena quashed, a legal proceeding that would have gotten her out of testifying. In a hastily arranged appearance on Monday, attorney Daniel Sullivan argued her testimony was not crucial, and as the sole clerk, her absence would create problems in Dukes County courthouse.

After a private discussion with the attorneys at the close of Monday’s hearing, board chairman James Breslauer rejected the motion and scheduled Ms. Williamson to testify Thursday.

During opening arguments last week, attorney Elizabeth Mulvey, who is defending Ms. Marshard, said a personal grudge Ms. Williamson holds against Ms. Marshard plays a significant role in the accusations of misconduct. Although Mr. Breslauer considered allowing Ms. Williamson to testify via video link, Ms. Mulvey argued strongly against it.

Cape and Islands District Attorney Michael O’Keefe and Ms. Marshard are also scheduled to testify this week.

Ms. Marshard’s defense is being provided pro bono by Ms. Mulvey and attorney Michael Mone Sr.

As the hearing entered its third and fourth days, Ms. Mulvey continued to paint a picture of Vineyard defense attorneys with a vendetta against her client.

On Tuesday, former West Tisbury Police Chief Beth Toomey testified about her experience working with Ms. Marshard and Ms. Williamson.

Ms. Mulvey asked if Ms. Marshard’s leadership ever “ruffled any feathers,” and Ms. Toomey confirmed it likely had an impact.

“The Vineyard wasn’t used to someone toeing the line, doing extra work,” Ms. Toomey said. “Laura ran a really tight ship. Of course it ruffled feathers.”

On Monday, Ms. Mulvey continued her cross-examination of Vineyard attorney Robert Moriarty about his reasons for alleging prosecutorial misconduct against Ms. Marshard.

Later in the day, two members of the Martha’s Vineyard Drug Task Force — Oak Bluffs Police Department Sergeant Nicholas Curelli and Massachusetts State Police Sergeant Jeffrey Stone — were questioned on the third count of the complaint, in which Ms. Marshard is alleged to have failed to correct testimony by Sgt. Stone before a grand jury. Sgt. Stone was testifying in the absence of Sgt. Curelli, the arresting officer, about a 2013 drug bust on Circuit Avenue.

‘Nuclear option’

During almost two hours of cross-examination on Monday, which at times was contentious, Ms. Mulvey asked why attorney Robert Moriarty did not question former Ritz owner Christine Arenburg when she gave a much more detailed statement of the 2013 melee at the Ritz in Oak Bluffs — which had resulted in attempted murder charges against his client, Patrece Petersen — almost a year and half after she submitted a handwritten affidavit to the police. Ms. Arenburg was owner of the Ritz at the time, and was bartending on the night of the brawl.

One count of the three-count complaint against Ms. Marshard by bar counsel states Ms. Marshard failed to disclose an interview which she conducted with Ms. Arenburg, who was without counsel at the time. During the interview, Ms. Arenburg contradicted accusations against Mr. Petersen.

In testimony last week, Mr. Moriarty said he became suspicious when Ms. Arenburg was dropped from the witness list two days before the trial.

He subsequently found out about Ms. Marshard’s interview with Ms. Arenburg, which led him to file a motion to dismiss the case for prosecutorial misconduct.

The motion was not granted, but Mr. Petersen was later acquitted.

In her opening statement last Wednesday, Ms. Mulvey said that Ms. Marshard admitted she should not have interviewed Ms. Arenburg without police present.

On Monday, Ms. Mulvey went on the offensive, stating there were “vast differences” in Ms. Arenburg’s two statements, so much so that Judge Richard Chin said it bordered on Ms. Arenburg providing false evidence to police. Mr. Moriarty contended that the statement he provided the court was much more detailed, but “generally the same sentiment.”

Ms. Mulvey pressed. “Even if you accept every word that you typed as true, there’s new and conflicting information,” she said.

Mr. Moriarty agreed.

Mr. Moriarty said he did not ask Ms. Arenburg why her memory of the incident was better a year and a half after filing her initial affidavit with Oak Bluffs police. Ms. Mulvey asserted that Mr. Moriarty was using the new affidavit to get his client a deal with the district attorney’s office. “That’s fair,” he said, adding that it is his job as counsel to get the best result for his client.

Mr. Moriarty said he did not approach Ms. Marshard about the issue, or ask Judge Chin for a colloquy — private conference — before filing a motion to dismiss that alleged prosecutorial misconduct by Ms. Marshard.

“Just like in the [David] Sylvia case, you chose the nuclear option,” Ms. Mulvey said.

Ms. Mulvey also delved into Mr. Moriarty’s allegation that Ms. Marshard used mug shots of the defendants, which were “highly prejudicial” and resulted in him filing a motion for mistrial, which was denied.

The photos were from the defendant’s driver’s licenses.

“In fact, they weren’t mug shots, and you knew it,” Ms. Mulvey said.

“I inferred they were mug shots because the photos came from the Dukes County Sheriff,” he said.
Ms. Mulvey quoted Judge Chin describing both prosecution and defense attorneys as “zealous lawyers [with] win-at-all-costs strategies.”

“Did Laura Marshard ever file a complaint about your win-at-all-costs strategies?” Ms. Mulvey asked.

“No, she didn’t,” he said.

On Tuesday, attorney John Amabile, who represented Daryl Baptiste in the case, testified that Ms. Arenburg’s testimony was exculpatory evidence that would have disputed Baptiste as the aggressor.

Assistant District Attorney Sharon Thibeault, who was approached by attorney Robert Moriarty about Ms. Arenburg’s more detailed affidavit, testified that she reviewed it and saw no cause for concern.

“[Mr. Moriarty] often saw issues where they didn’t exist,” Ms. Thibeault said. “He was an alarmist.”

Arenburg is scheduled to testify Thursday.

Conflict of interest alleged

Ms. Mulvey began questioning Robert Moriarty last Thursday, day two of the hearings, probing his social relationship with clerk magistrate Liza Williamson. She also revisited possible conflict of interest issues that stemmed from Mr. Moriarty and his brother Timothy representing clients that were adversarial parties at the same trial.

As she did in day one, Ms. Mulvey stressed that personal relationships on the Vineyard can play an outsize role in Island jurisprudence.

Under questioning, Mr. Moriarty said he had socialized with Ms. Williamson on occasion and that they had both served on the board of trustees at the Vineyard Montessori School. Ms. Mulvey stated that in a small courthouse such as the one in Edgartown, a clerk magistrate can have considerable sway over proceedings, as compared with larger courtrooms.

Mr. Moriarty agreed. “The judge can hurt you, but the clerk can kill you,” he said.

Ms. Mulvey questioned Mr. Moriarty at length about two trials where he defended Mr. Petersen, which account for two of the three counts against Ms. Marshard in the petition for discipline.

In addition to the case involving the brawl at the Ritz, Mr. Moriarty defended Mr. Petersen against charges that included assault and battery with a dangerous weapon, stemming from a brawl at a party.

Mr. Moriarty backed his brother Timothy’s testimony that they were not aware Ms. Marshard had spoken to defendant David Sylvia — a potential witness against Mr. Petersen represented by Timothy — without counsel until Ms. Williamson “came in yelling” at a probable cause hearing. Mr. Moriarty said he had “no concrete evidence” that Ms. Marshard had inappropriately questioned Mr. Sylvia about the case. “All I know is he was alone in a room with her, and I thought it was patently unfair,” he said. “I was trying to protect my client’s rights.”

“You were trying to protect your client’s rights by accusing Laura Marshard of misconduct?” Ms. Mulvey asked. She said he had options other than charging her with prosecutorial misconduct. “The ethical thing to do is ask the judge to ask Mr. Sylvia, but that’s not what you did.”

Mr. Moriarty said that he was concerned that Ms. Marshard’s tactics could tarnish the image of the D.A.’s office, where he once worked and where his wife still works. He said he also expressed his concerns to Assistant District Attorney Sharon Thibeault. “This is the last thing I wanted to do,” he said. “I don’t want her to be here, I don’t want to be here, I knew if this went before the court it could be really bad.”

Testimony centers on text

On Monday, the third count of prosecutorial misconduct against Ms. Marshard by bar counsel was addressed. It stems from an August 2013 drug arrest of Mike Jean Francois in Oak Bluffs. The complaint alleges that Ms. Marshard failed to correct testimony by Sgt. Jeffrey Stone, resulting in incorrect information presented to a grand jury. It also alleges that Ms. Marshard failed to adequately prepare for the grand jury.

Sgt. Stone testified that Sgt. Nicholas Curelli used the cell phone of Nicholas Viaggio, who had recently been arrested on drug and larceny charges, to communicate with a suspected drug dealer known as “Mike Peters.” After using the phone to arrange a drug buy at Fat Ronnie’s on Circuit Avenue, Sgt. Curelli stopped Mike Jean Francois, and used the confiscated phone to to text “here.” Sgt. Curelli said Mr. Francois’ cell phone buzzed within seconds of sending the text.

Sgt. Curelli was away during the grand jury hearing, and Sgt. Stone, a member of the Drug Task Force also in on the arrest, testified that Sgt. Curelli saw the word “here,” when the police report, written by Sgt. Curelli, only stated he heard the phone buzz.
“I saw the word ‘observed’ in Sgt. Curelli’s report and mistakenly understood it to mean that he read the word rather than heard the alert sound,” Sgt. Stone said.

Although the complaint alleges Ms. Marshard knowingly let the misstatement stand, Robert Manning, defense attorney for Mr. Francois, testified Monday that he did not think Sgt. Stone or Ms. Marshard were being intentionally duplicitous.

During testimony Tuesday, attorney Robert Nolan said he sought dismissal of his client’s case because of the discrepancy in testimony about the text.

“Allegations were made by Sgt. Stone that the words were there, and that was not true,” Mr. Nolan said. “I don’t think he lied; the language in Sgt. Curelli’s report was somewhat confusing.”

Nolan said he would not call Marshard “negligent,” but added that she still failed to disclose the information.

To the allegation that Ms. Marshard did not adequately prepare for the trial, Sgt. Curelli testified he had been involved with hundreds of cases with Ms. Marshard, and always felt prepared for testimony. Sgt. Stone concurred. “She would be overly prepared to the point where I’d be like, ‘Come on, Laura, I got this,” he said.

Times intern Amanda Lucidi contributed to this report.