Hello and welcome to this Ethics Alert blog which will discuss the recent disciplinary opinion of the Maine Supreme Judicial Court imposing a stayed 30 day suspension on a criminal prosecutor who engaged in multiple acts of misconduct in a criminal prosecution both before and during trial, including failing to provide exculpatory evidence in discovery and improper comments during rebuttal closing argument. The case isMaine Board of Overseers of the Bar v. Kellett, Docket No. BAR-13-10 (Maine. Supreme Judicial Court,July 16, 2013). The opinion is online here: http://www.courts.state.me.us/opinions_orders/supreme/bar_decisions/2013/bar-13-10_kellett_judgment.pdf
According to the opinion, “(t)his case is the first disciplinary proceeding ever filed with the Court by the Overseers of the Bar against a member of Maine’s prosecutorial bar that is based upon the prosecutor’s representation of the State. In reviewing the actions of (the lawyer), the Court has considered the special duty that a prosecutor owes to the bench, to opposing counsel, to criminal defendants, and to the people of Maine. A prosecutor must always act in an effort to do justice rather than simply to convict. That is because prosecutors do not represent individual victims, nor should they work towards any particular outcome other than one that involves the creation of a fair trial process and outcome.
“Over seventy-five years ago, the United States Supreme Court described a prosecutor as: the representative…of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88 (1935).
“The Law Court has endorsed this vision of a prosecutor’s role, see, e.g., State v. Young, 2000 ME 144, ¶ 6, 755 A.2d 547, 548 (“As we have noted previously, prosecutors are held to a higher standard regarding their conduct during trial because they represent the State…and because they have an obligation to ensure that justice is done, as opposed to merely ensuring that a conviction is secured.”), and it is because (the lawyer) failed to meet this standard that she must be sanctioned.”
“However, the Court is also mindful that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to, or otherwise have failed to, properly discharge their professional duties. See M. Bar. R. 2(a). In this proceeding, (the lawyer) has admitted that she did, in fact, violate the Bar Rules in effect at the time of her actions, she has apologized, and she has expressed her remorse for her actions. She has no history of other misconduct, and the Court is satisfied that through these proceedings and through the actions and study she has undertaken since the Filler case, (the lawyer) has a much more robust understanding of the grave obligations and responsibilities attached to the prosecutorial role, and that she is not likely to commit misconduct in the future.”
Bottom line: This is another opinion this year which imposes discipline on a criminal prosecutor for violations of state Bar Rules because of misconduct during a criminal prosecution. This opinion states that this is the first disciplinary proceeding against a criminal prosecutor in Maine. Considering the evidence of multiple acts of misconduct cited in the opinion, the 30 day stayed suspension misconduct appears to be relatively minimal.
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
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