Show humility and apologize

4

Cape and Islands District Attorney Michael O’Keefe owes an apology to the people of Martha’s Vineyard and, in particular, those who work at the courthouse in Edgartown.

Two weeks ago, the Massachusetts Board of Bar Overseers found Laura Marshard, an assistant district attorney who works for Mr. O’Keefe, guilty of misconduct. While the guilty finding was on only one of three counts, Ms. Marshard and Mr. O’Keefe shouldn’t be taking any victory lap. A careful reading of the 58-page finding shows the board members reviewing the case bent over backward not to find Ms. Marshard guilty on the other two counts. They even criticize Bar Counsel Stacey Best saying there were areas she could have explored, but didn’t. Perhaps if she had been more diligent, there would have been other guilty findings. In one instance, where Ms. Marshard met with witness Christine Arenburg without a police officer present, and allegedly failed to turn over exculpatory evidence, there were questions Ms. Best could have raised about that meeting.

“Bar counsel might have argued, but did not, that this committee can infer that Arenburg provided [Ms. Marshard] with additional exculpatory details based on the following: (i) the conversation lasted ‘maybe’ fifteen minutes … more than enough time to talk about the basic story in her written statement as well as additional details of the type reported to [Det.] Morse and, later, defense counsel; (ii) Arenburg testified before us that she had told Morse additional exculpatory detail; (iii) Arenburg provided a consistent statement to that effect to defense counsel …; and (iv) Arenburg volunteered details during her testimony before us in a manner suggesting how she would likely have talked with [Ms. Marshard].”

Ms. Best also appeared to miss other opportunities during her lackluster cross-examinations of witnesses in the case. An example would be her failure to get First Assistant District Attorney Michael Trudeau to elaborate about complaints his office had received about Ms. Marshard, rather than let him suggest there was both positive and negative feedback about her without any challenge. Ms. Best’s decision not to question Mr. O’Keefe on the stand after he testified on behalf of Ms. Marshard was bewildering.

Beyond that, what should be of concern to the public is the board’s comments describing a “lack of candor” on the part of Ms. Marshard, and a more deeply troubling “business as usual” attitude on the part of Mr. O’Keefe’s office.

“[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.”
Let’s not forget, this whole case began because a judge, sitting on a case prosecuted by Ms. Marshard in 2014, stopped the proceedings to point out misconduct on her part. “This was not a momentary misstep, but a persistent course of conduct designed to prejudice the defendant,” Judge Chin said during the proceedings. He also called it a deliberate attempt to sway the jury in showing the mugshots of the “two African American men” on trial.

Did we mention that despite her tactics, the defendants were acquitted? If you’re going to skirt ethical bounds, you should at least win, right?
Everyone should have a boss like Mr. O’Keefe. He immediately went to the defense of his prosecutor, and hasn’t backed off since, even after an exhaustive review by the Massachusetts Board of Bar Overseers. Still, in a prepared statement, Mr. O’Keefe proposes an appeal of the case, even though that would appear to be a decision to be made by Ms. Marshard and her attorneys.
You would hope the district attorney’s office would show some humility, take its medicine, and encourage the employee to apologize. Instead, they’re doubling down and talking about dragging this out some more with an appeal. As if eight days of testimony, spanning several months, wasn’t enough in this case.

The Board of Bar Overseers has already called it an “over-litigated” case.

Had she shown some remorse for her actions, Ms. Marshard would likely be facing a private admonishment, rather than a public reprimand, according to the decision. “It was aggravated by [Ms. Marshard’s] lack of candor before us about that incident and about other incidents that were subject of this disciplinary proceeding, as well as her substantial experience and failure to recognize the wrongfulness of her misconduct under count two.”
It’s disappointing and inappropriate that Ms. Marshard dragged clerk magistrate Liza Williamson to Boston and had her questioned on a grudge she allegedly held against Ms. Marshard because of the prosecution of her mother and competition over the job of clerk magistrate. The board rightly found that testimony to be largely “irrelevant.”

It’s equally untoward that, in the face of defeat, Mr. O’Keefe chose in a prepared, calculated statement to take aim at the Moriarty brothers — Robb and Timothy. For background, Robb Moriarty was the defense attorney in a case where the victim, also a possible witness, needed an attorney in the eyes of the court. Attorney Timothy Moriarty was appointed to advise the man of his Fifth Amendment rights against self-incrimination. There was no conflict of interest there, and there is certainly no evidence that Timothy Moriarty aided his brother’s defense of his client.

By contrast, Ms. Marshard’s decision to secretly meet with the man, without Timothy Moriarty present, is ultimately something the Board of Bar Overseers determined to be an ethical lapse.

The Moriarty brothers did nothing wrong, and yet Mr. O’Keefe chose to mention them in his prepared statement.

Both Ms. Williamson and Robb Moriarty declined to comment after the board released its decision. They’re the only ones showing dignity in this case.

Lest you believe this is an isolated incident with Ms. Marshard, we remind you that even after she was facing charges before the board, she was flirting with questionable behavior.

In April, as Carlos Stevenson went to trial on rape charges, Ms. Marshard knew that Tisbury Police Officer Mark Santon, her main witness in the case, was on paid administrative leave, under investigation for an arrest where a woman had attempted suicide. During the course of that probe, an independent investigator found that Officer Santon lied repeatedly.

Not exactly the guy you want to pin your case on. Sources told The Times that the investigation was never disclosed to the defense attorney, and what makes those sources credible is that Mr. Stevenson’s attorney, Janice Bassil, a highly respected Boston defense attorney, never attempted to impeach Officer Santon on the witness stand with regard to his truthfulness. No defense attorney is going to leave that chip on the table if she knows about it, no matter how confident she is about the case.

In June, the Cape Cod Times reported that bar counsel had reached out to people on the Vineyard about a 2011 drug case where Ms. Marshard had allegedly tipped off a friend that a house was about to be raided. To be clear, no charges have been filed by bar counsel in that case in the months since the Cape Cod Times report, and Mr. O’Keefe told the newspaper that an investigation was done and the allegations were found to be “utter nonsense.”

The MV Times asked for a copy of the investigative report, and was told it would have to travel to the DA’s Barnstable offices to review it.

Still, if Ms. Marshard and Mr. O’Keefe choose to pursue an appeal, it’s possible bar counsel will continue digging on that or other issues.

Ms. Marshard’s defense seemed to center on a vendetta by defense attorneys and the clerk magistrate. Her attorney painted the courthouse in Edgartown as a place where grudges rule the day.

We appreciate that a person is entitled to a zealous defense to allegations, but Ms. Marshard, through her attorney, crossed the line.

Most employers who have an employee found to cross ethical boundaries would discipline that employee with a reprimand and seek corrective training. If a pattern persisted, the employee would be fired.

Voters on the Cape and Islands should take notice. The region’s elected district attorney is openly supporting an employee who was proven to have crossed ethical lines, and whom a statewide board has found lacked candor. In the counts where she was not found responsible, it’s not that the board found her innocent, rather it found that bar counsel had not proven the case with a preponderance of the evidence.

That’s disturbing for Ms. Marshard. That’s disturbing for the DA’s office. And, ultimately, that’s disturbing for justice.

At a minimum, Mr. O’Keefe should assure the people of Martha’s Vineyard that Ms. Marshard will never prosecute cases on the Island again. He should also encourage his employee to drop the senseless appeal, given that the board was provided more than enough information to make its decision and this issue has dragged on too long. And he should issue a public apology to Ms. Williamson, the Moriarty brothers, and the defendants whom Ms. Marshard targeted with an overzealous and, ultimately, tainted prosecution.