The prosecutorial misconduct hearing for Assistant District Attorney Laura Marshard continued on Tuesday, with Ms. Marshard spending the entire day on the stand under direct questioning by her attorney, Elizabeth Mulvey.
The hearings are conducted by the Massachusetts Board of Bar Overseers (BBO), an independent board established by the Supreme Judicial Court to investigate complaints against lawyers. The proceedings, which began on May 3, are the result of a three-count complaint to the board that alleges that Ms. Marshard — prosecutor for the Cape and Islands District Attorney’s Office for 13 years — committed prosecutorial misconduct in three criminal trials on Martha’s Vineyard.
As she has since opening arguments, Ms. Mulvey painted the Vineyard as a rural enclave where professional and personal relationships invariably overlap, including at the Dukes County courthouse. Ms. Mulvey attempted to show the board that internecine courthouse conflicts and an honest mistake are at the heart of the charges against Ms. Marshard.
Responding to questioning, Ms. Marshard said prosecuting cases on the Vineyard is markedly different than it was during her tenure at the Suffolk County D.A.’s office, and before that, in her nine years as a prosecutor in Colorado.
“It’s most definitely a different culture,” she said. “If there were 30 potential jurors on the Vineyard, you knew from five to 15 of them. Getting a jury can take weeks. It becomes a standard of how well you know them. Have you been to each other’s house? Do your kids go to school together? It’s the same thing with witnesses.”
One of the counts in the complaint against Ms. Marshard alleges she withheld evidence from defense attorneys that could have absolved two men of charges stemming from a bar brawl at the Ritz Cafe in Oak Bluffs in March 2013. The defendants, Patrece Petersen and Darryl Baptiste, were indicted by a Dukes County grand jury on assault charges related to a fight with brothers Jason and Frank Cray. Mr. Petersen was also charged with attempted murder.
On Tuesday, Ms. Mulvey acknowledged Ms. Marshard spoke to Christine Arenburg about the incident without a police officer present, but painted it as a situation where blurred line of Island relationships came into play.
Under questioning, Ms. Marshard talked about a social connection she had with Ms. Arenburg through the equine community, and said that their private conversation about the incident revealed no exculpatory evidence. But she conceded that it was a mistake.
“There is no case that’s worth your reputation,” she said. “It’s so much simpler just to have someone there, and I should have done that.”
Ms. Marshard said she and Ms. Arenburg knew each other through Rising Tide, a therapeutic equine program for children and adults with disabilities. Ms. Marshard is on the board of directors of Rising Tide, which hosted fundraising events at the Ritz Cafe while Ms. Arenburg owned it. She said Ms. Arenburg approached her about the Petersen case at the Agricultural Fair, and not wanting to talk about it in front of her children, Ms. Marshard suggested they meet at her office.
“She kept saying she didn’t see the incident,” Ms. Marshard said. “I knew she was uncomfortable with public speaking. She made clear she did not want to testify … She didn’t say anything exculpatory. I don’t recall writing any notes. I didn’t do it because I knew Ms. Arenburg. It was the wrong choice … It doesn’t make police happy that you request they be at every meeting. But that’s important. This case exemplified that.”
Ms. Arenburg gave an affidavit shortly before the trial which contained exculpatory evidence in Mr. Petersen’s favor, leading his attorney Robert Moriarty to file a motion to dismiss for prosecutorial misconduct against Ms. Marshard. Ms. Marshard said she was blindsided by the motion. “We were to start the trial on Monday, I got word of it on Saturday,” she said. “I asked Mr. Moriarty if we could speak; he never called. We spoke often. He didn’t hesitate to reach out to me. We both had jobs to do. At the time, I thought he was a friend.”
Mr. Petersen and Mr. Baptiste were acquitted of all charges in November 2014, after a trial that included a finding by Judge Richard J. Chin of prosecutorial misconduct on the part of Ms. Marshard.
“Her actions were part of a ‘win-at-all-costs’ strategy, and were not consonant with the pursuit of justice,” Judge Chin wrote in his decision.
October 2014 was a busy month for Mr. Petersen. Just before his trial for attempted murder, he was charged with numerous offenses, including felony mayhem, pursuant to an altercation he had with David Sylvia at a house party. This led to Count Two in the complaint against Ms. Marshard — that she talked to Mr. Sylvia, without his counsel present, about testifying against Mr. Petersen.
On Tuesday, Ms. Marshard maintained she was speaking to Mr. Sylvia, whom she’d prosecuted repeatedly for lesser infractions in District Court, to reassure him he could testify against Mr. Petersen without fear of prosecution. “I wanted Mr. Sylvia to know he wasn’t in trouble. He’s a man that’s prosecuted repeatedly, often by me, and now he had an attorney taking his side,” she said, referring to his court-appointed attorney Tim Moriarty. “I wanted him to know that.”
Ms. Marshard also stated that Tim Moriarty, Robert Moriarty’s brother, was aware of their conversation, and was sitting outside the room while the discussion took place.
“Tim Moriarty said nothing. Rob Moriarty said nothing,” she said. “No one raised the issue that day.”
Ms. Mulvey showed the board a letter from Edgartown Police Lieutenant Chris Dolby that corroborated Ms. Marshard’s version of events.
Ms. Mulvey again tried to show that the charges of prosecutorial misconduct are rooted in alleged courthouse contretemps between Ms. Marshard and District Clerk Magistrate Liza Williamson. Ms. Marshard was the prosecutor in a domestic violence charge involving Ms. Williamson’s mother and stepfather in July 2004. The charges were dismissed before arraignment days later, but Ms. Mulvey has kept the issue front and center since the first hearing on May 3. Ms. Mulvey placed Ms. Williamson’s parents on a witness list for the board proceedings. They have not been called.
In her testimony last week, Ms. Williamson categorically denied that she had any kind of vendetta against Ms. Marshard.
Ms. Williamson is the clerk magistrate of the District Court. The three counts in the complaint against Ms. Marshard are related to Superior Court cases.
On Tuesday, Ms. Marshard recapped her version of their relationship, which started when they were both prosecutors in the Suffolk County D.A.’s office. “We had a Vineyard connection,” she said. “We were friendly. We had a congenial relationship.”
Ms. Marshard said when she was transferred to the Vineyard under the Cape and Island’s D.A.’s office, Ms. Williamson went out of her way to welcome her and introduce her to members of the Oak Bluffs Police Department, where Ms. Williamson’s husband, Lieutenant Tim Williamson, works, but that their relationship changed dramatically after July 2004.
“At any opportunity she would seek to undermine what I was doing,” Ms. Marshard said. “Not every day, but consistently. She almost never came to me directly about any issue, whether it was a charging decision or a scheduling request. It always came to me from another attorney … I tried to speak with Ms. Williamson and open the lines of communication, and that didn’t go well.”
Ms. Marshard said she’d had a conversation with a Tisbury Police Department detective, who told her Ms. Williamson was giving him contradictory advice about how to charge a suspect, and that it was like “talking to two different D.A.s.” She did not state the detective’s name.
Ms. Mulvey attempted to delve further into their history, but repeated objections by Bar Counsel Stacey Best were sustained by Board of Bar Overseer’s chairman James Breslauer. Mr. Breslauer has been giving less and less latitude to the alleged personal vendetta as the proceedings have progressed.
“I know you’re alleging bias in Ms. Williamson’s testimony, but I think her testimony speaks for itself,” he said to Ms. Mulvey.
The hearing will continue on Monday, June 26, when District Attorney Michael O’ Keefe is slated to testify.