Massachusetts Supreme Judicial Court Justice Elspeth Cypher heard the case involving Laura Marshard Wednesday morning in the John Adams Courthouse on Beacon Hill.
After hearing from both sides and requesting documents, the judge closed the brief hearing without issuing a decision on Marshard’s discipline.
Marshard, who lives on the Island, was found guilty of misconduct a year ago for interviewing a witness without his attorney present. While the panel that found her guilty recommended a reprimand, in May the Massachusetts Board of Bar Overseers ruled Marshard “abused her prosecutorial power” while she was an assistant district attorney prosecuting cases in Edgartown District Court.
The board recommended that Marshard should be suspended for a month and ordered her to attend a board-sanctioned ethics class for meeting with a witness in a criminal case without that person’s attorney present. Marshard has taken two courses thus far, a webinar and a live course. Assistant Bar Counsel Stacey Best said those courses did not satisfy the Board of Bar Overseers. She asked for a decision that compelled Marshard to attend a particular course at Suffolk University. Marshard’s attorney, Elizabeth Mulvey, said such a course would be burdensome and unnecessary, and pointed out Best is an instructor for the course.
Cape and Islands District Attorney Michael O’Keefe, who has stood behind Marshard and even testified at her disciplinary hearing, was in the courtroom for Wednesday’s proceedings. After the hearing he huddled with Marshard and and Mulvey.
Cypher inquired about what Best termed the “aggravating feature of dishonesty” in the case, asking if she could be supplied with transcripts of prior proceedings on the subject. Best emphasized Marshard’s transgression was in a “criminal context,” in that “constitutional rights of the relevant witness were at stake.” She did not have the transcripts on hand, but promised to submit them in a timely manner.
Mulvey said while she understood the Board of Bar Overseers had already made a finding, she described their evidence as “not all that clear.”
Wednesday’s hearing presented the opportunity for a single justice of the Massachusetts Supreme Judicial Court (SJC) to hear the case and decide Marshard’s punishment.
The Board of Bar Overseers is an independent body set up by the SJC to investigate complaints against attorneys. Legal experts have told The Times previously that it’s rare for a prosecutor to face discipline, let alone sanctions. O’Keefe told The Times in the Adams Courthouse that in his 36 years as a prosecutor, he hasn’t seen an assistant district attorney face such sanctions. Asked what the misconduct means for Marshard’s employment with his office, he said,
“It would be inappropriate for me to comment until Judge Cypher gives her decision.”
The board recommended stronger action against Marshard than the panel that held her disciplinary hearing and found her guilty of misconduct.
“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 council.”
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.
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’s attorney Elizabeth Mulvey has contended that Marshard believed she had consent to talk to Sylvia.
Marshard showed “lack of candor” during her testimony, the board concluded.
“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 states. “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.’”
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.”