Update Oct. 30 5 pm
Laura Marshard, an assistant district attorney for the Cape and Islands who served in Edgartown District Court, is facing a public reprimand after the state’s Board of Bar Overseers found her guilty of misconduct by meeting privately with a witness.
“[Ms. Marshard] crossed an ethical line, and for that we recommend that she receive a public reprimand,” the decision states. “Other conduct on her part was problematic but, in the rough-and-tumble world of criminal prosecutions, it did not cross the ethical line into the charged misconduct.”
The board held eight days of hearings over eight weeks that included Cape and Islands District Attorney Michael O’Keefe testifying in Ms. Marshard’s defense. Ms. Marshard, who lives on the Vineyard, had the benefit of high-powered defense attorney Elizabeth Mulvey throughout the proceedings. Ms. Mulvey attempted to paint the Island courthouse as a place where personal grudges ruled the day.
But the board dismissed Ms. Mulvey’s narrative that the allegations were born out of a feud between Ms. Marshard and Clerk Magistrate Liza Williamson over the prosecution of Ms. Williamson’s mother, concluding “that narrative was irrelevant.”
Ms. Williamson declined to comment on the outcome.
As The Times reported through the disciplinary proceedings, Ms. Marshard faced a three-count complaint that she intentionally withheld exculpatory evidence from the defense, met with a potential witness without his attorney present, and failed to correct testimony before a grand jury. The only count that was proven was that she met with a potential witness without his attorney present, the decision states.
According to the decision, an attorney cited for a similar ethical lapse would typically face a private admonition. “The typical sanction is not enough, however, in the circumstances of this case. [Ms. Marshard’s] misconduct in contacting a represented party without the consent of that party’s attorney was willful and intentional, not accidental or peripheral,” the decision states. “It was aggravated by the respondent’s lack of candor before us about that incident and about other incidents that were the subject of this disciplinary proceeding, as well as her substantial experience and failure to recognize the wrongfulness of her misconduct under count two.”
Ms. Marshard, who has been serving as a prosecutor at Falmouth District Court, referred calls to Mr. O’Keefe and her attorney Mike Mone. Mr. O’Keefe issued a statement saying an appeal is likely.
“It would be inappropriate to comment while the matter is pending,” Mr. Mone said, noting his client has 20 days to determine whether to appeal. “We are pleased that board found that only one of the three counts was proven by bar counsel. We intend to take close at count two, because we don’t find the evidence supports the finding.”
Mr. Mone declined to answer specific questions. “It ain’t over,” he said.
At issue was Ms. Marshard’s handling of David Sylvia, a witness in a July 2014 case involving a brawl at a party. Ms. Marshard, who had previously prosecuted Mr. Sylvia, met with him without his attorney present. Mr. Sylvia was to testify against Patrece Petersen, who was charged with assault and battery with a dangerous weapon, assault and battery on a police officer, mayhem, resisting arrest, and disturbing the peace.
According to testimony during the hearing and documented in the board’s decision, Ms. Marshard “directed an Edgartown police detective [to] locate Sylvia and bring Sylvia to the courthouse library.” Ms. Marshard then met with Mr. Sylvia without his attorney present. She later admitted she had met with Mr. Sylvia, but said it was only to reassure him he would not be prosecuted if he testified.
Mr. Sylvia, who could have potentially incriminated himself by testifying, was given counsel, but Ms. Marshard met with him without that attorney present.
The 58-page decision concludes by taking a shot at Mr. O’Keefe’s lieutenants. “Finally, we are concerned that apparently one of the respondent’s witnesses, a Second Assistant District Attorney, and perhaps a First Assistant District Attorney as well, took the position that [Ms. Marshard’s] ex parte contact with a represented person concerning the subject of the representation was, in effect, business as usual.”
Asked specifically about whether he would answer any questions beyond a written statement issued by his office, Mr. O’Keefe said, “Nope.”
In that statement, Mr. O’Keefe vowed to appeal the board’s decision.
“I am happy to see the Hearing Panel found that the Bar Counsel failed to carry their burden with respect to two out of the three counts. The underlying basis for the recommendation on the count they found responsibility for will be appealed,” Mr. O’Keefe wrote. “That count, meeting with a witness who was the victim in a case, and who was appointed counsel, ‘is somewhat close,’ according to the findings in determining the degree of appropriate punishment, and the hearing panel recommended public reprimand.”
Mr. O’Keefe went on to write that the conversation did not involve the substance of the man’s testimony: “In the case in question, the attorney appointed to represent the victim was the brother of the defendant’s attorney.”
It’s unclear why Mr. O’Keefe brought that up. Mr. Petersen was represented by Robert Moriarty, and Timothy Moriarty was appointed to represent Mr. Sylvia to advise him on his Fifth Amendment rights against self-incrimination. At no point did the board find that Timothy Moriarty’s counsel was in conflict with his brother’s representation of Mr. Petersen.
Robert Moriarty, who was called to testify during the hearings, with Ms. Mulvey attempting to vilify him, declined to comment on the board’s decision, or Mr. O’Keefe calling him and his brother out in his prepared statement.
It is rare for a prosecutor to be charged with misconduct, let alone to be cited for an ethical lapse. There were numerous instances, even in not finding a violation, where the board said it “did not credit” or found a “lack of candor” in Ms. Marshard’s testimony, as well as other officials from Mr. O’Keefe’s office.
In one of the counts, Ms. Marshard was accused of not turning over exculpatory evidence to a defense attorney. In that case, Ms. Marshard was accused of withholding details from an interview she did with Christine Arenburg that contradicted a sworn affidavit by Ms. Arenburg. The case involved a fight that started with a conflict inside the Ritz, where Ms. Arenburg was a bartender.
“We were given some pause in this matter where [Ms. Marshard] erroneously told Arenburg that her testimony was not based on personal knowledge and would not be admissible,” the decision states. “Still, while [Ms. Marshard’s] bad advice to Arenburg was ill-advised, and perhaps tainted by too zealous a desire to obtain a conviction, we cannot say that it was an obstruction to the defendant’s access to Arenburg’s testimony.”
There are similar passages throughout the decision that point to the Bar Counsel Stacey Best not making the case, rather than a full vindication of Ms. Marshard.
“I fully support my Assistant District Attorneys,” Mr. O’Keefe wrote. “Every Assistant District Attorney in my office understands the higher ethical responsibilities we have in every criminal case. I will continue to review the transcript and decision, and weigh requesting further action by the board on this matter.”
Updated to add comment by attorney Mone and to clarify the board’s ruling.