Updated May 21 @ 4 pm
One week after the state board that oversees the conduct of attorneys issued a blistering commentary on one of his employees and his office, Cape and Islands District Attorney Michael O’Keefe refuses to comment on the case, but is offering lawyers an ethics workshop.
On Monday, May 14, the Massachusetts Board of Bar Overseers found that prosecutor Laura Marshard “abused her prosecutorial power” and should be suspended for a month and attend a board-sanctioned ethics class for meeting with a witness in a criminal case without that person’s attorney present.
O’Keefe has not returned repeated calls to his office, but on Monday issued a press release inviting prosecutors and other Cape and Islands attorneys to an ethics training workshop on June 14. “The recent experience of a member of my staff with the Board of Bar Overseers inspired the idea for this seminar,” O’Keefe is quoted as saying in the release. “Ethics are important to every profession, doctors, journalists, business leaders, and lawyers.”
Asked when O’Keefe might say something on the actual decision by the Board of Bar Overseers, Tara Miltimore, a spokesman for his office, told The Times, “When it’s resolved.”
The board recommendation goes before a single justice of the Massachusetts Supreme Judicial Court, which is considered a formality. The SJC typically goes along with the board’s recommendation, Marty Rosenthal, an attorney who has represented defendants before the board, told The Times.
It’s rare for a prosecutor to even go to a hearing, let alone receive sanctions, he said. “As a defense lawyer, I’m pretty surprised that they’re taking this so seriously, frankly,” said Rosenthal, who has alleged selective enforcement against defense attorneys. “They almost never go after prosecutors.”
Marshard could not be reached for comment, but her attorney, Elizabeth Mulvey, issued a statement saying her client respected the decision of the board.
The decision was made May 14, but not released until Thursday, May 17. Within the decision, board members explained the reason they recommended stronger action.
“Because we concluded that [Marshard] abused her prosecutorial power — aggravated by her misrepresentations to a judge — we disagree with the recommended sanction of public reprimand; instead we recommend that [Marshard] be suspended for one month with reinstatement conditioned on the successful completion of a legal ethics class approved by bar counsel.”
Marshard had been already been found guilty by the board, an independent body established to investigate and evaluate complaints against Massachusetts lawyers, but was only facing a public reprimand for misconduct related to meeting privately with the witness.
Marshard, who lives on the Island, was at one time assigned as the prosecutor at Edgartown District Court. She came under scrutiny by the board and was the focus of eight days of testimony before the board last year before the hearing panel ultimately found her guilty of misconduct in October and issued a reprimand.
At issue was Marshard’s handling of David Sylvia, a witness in a July 2014 case involving a brawl at a party. Marshard, who had previously prosecuted Sylvia, met with him without his attorney, Timothy Moriarty, present. 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, Marshard “directed an Edgartown police detective [to] locate Sylvia and bring Sylvia to the courthouse library.” Marshard then met with Sylvia without his attorney present. She later admitted she had met with Sylvia, but said it was only to reassure him he would not be prosecuted if he testified.
Sylvia, who could have potentially incriminated himself by testifying, was given counsel, but Marshard met with him without that attorney present.
Neither Marshard nor bar counsel had appealed the original ruling, and instead asked for a stipulation that a public statement about the case be issued verbatim. The full board refused.
“We declined to do so, since we found the statement to be inaccurate,” the decision states.
Instead, the board sought a more severe sanction, concluding that Marshard should have known her actions were inappropriate.
“I’m a little puzzled by the lenient agreement by bar counsel” on the stipulated public statement, Rosenthal said.
The board found that Marshard “flouted” the requirement for Sylvia to have his attorney present. “This case illustrates the importance of the rule. Sylvia, who had little education, was confused and frightened. He thought he was facing criminal charges. While his lawyer sat in the hallway, he was denied counsel,” the decision states.
Marshard thought she had consent, Mulvey wrote in her statement. “At the time, ADA Marshard believed that since the victim’s experienced court-appointed counsel was aware of the meeting and did not voice any objection, either before or after the meeting, she had his consent,” she wrote. “The hearing committee and the Board of Bar Overseers found that affirmative consent was required, and ADA Marshard hopes that this ruling will help clarify prosecutors’ obligations in the future. Her actions arose out of her desire to respect and protect the victim’s rights, which is both the consistent policy of the Cape and Islands District Attorney’s office and a statutory obligation of prosecutors. ADA Marshard is pleased that the hearing committee found no basis for the other violations charged by bar counsel. Nevertheless, she recognizes the serious nature of this matter, and respects and accepts the board’s decision.”
The full board concluded what the hearing panel had already stated: Marshard showed a “lack of candor” during her testimony. “In addition to lack of candor before the hearing committee, [Marshard] misled the judge when she falsely told him that [attorney] Moriarty had not been appointed at the time she met with Sylvia,” the decision states.
The decision states that misrepresentation to a court typically comes with a one-year suspension.
“We are particularly troubled by the fact that [Marshard] tried to mislead a judge when she said that the witness did not have appointed counsel at the time she spoke with him, and when she failed to inform the judge that the government had offered not to prosecute the witness if he testified,” the decision. “These were lies.”
The board also took a shot at O’Keefe’s office, stating, “The hearing committee noted that ex parte meetings with represented persons are apparently regular occurrence in the district attorney’s office where [Marshard] works. This is troubling coming from prosecutors, whose broad discretion carries with it ‘the responsibility of a minister of justice and not simply that of an advocate.’”
On Friday, May 18, Miltimore wrote, “District Attorney O’Keefe is in Boston Thursday and Friday for DA meetings, and will respond after he reads the BBO report and has an opportunity to speak with Laura Marshard and her attorney Elizabeth Mulvey.”
Asked Monday what changed, she said that the press release would stand as the only comment from the office.
In the Massachusetts Board of Bar Overseers decision, the use of police officers was also cited as problematic. “Even if unintentional, the presence of uniformed officers can be intimidating,” the decision states. “The threat of prosecution is real. The consequences can be severe.”
During her hearing, Marshard’s defense centered on her being targeted as part of a vendetta at the courthouse, but the board in its decision gave little credibility to those claims. Instead, the hearing board in that decision stated Marshard “crossed an ethical line,” and also found other conduct by her “problematic, but in the rough-and-tumble world of criminal prosecutions, it did not cross the ethical line into the charged misconduct.”
O’Keefe, who was called to testify during Marshard’s hearing, has been a staunch supporter of her, saying his office would appeal that ruling even before Marshard and her attorney did.
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.
The release issued by O’Keefe’s office Monday states that the ethics training will be held at the Hyannis Resort and Conference Center from 9:30 am to 3 pm, with lunch provided. Among the topics included will be conflicts, discovery, witness preparation, and ex parte communication.
Panelists will include Tigran Eldred, a professor at New England Law, Judy Zeprun Kalman, general counsel and director of the AG Institute at the Massachusetts Attorney General’s Office; and Brendan Ruane, a professional development consultant and lead instructor for the National Attorneys General Training and Research Institute.
“Continuing education in this area is as important as continuing education in substantive law, and my hope is that this will place ethical obligations front and center in the minds of prosecutors and defense counsel alike,” O’Keefe said in the press release. “I hope to see many lawyers from our three counties in particular, but from all over as well.”
Attorneys can register with Cara Winslow at the DA’s office.
Updated to include press release from O’Keefe and comments from an attorney who has defended lawyers before the Board of Bar Overseers. -Ed.