Category Archives: Prosecutor criminal conduct

Maine Supreme Judicial Court imposes stayed 30 day suspension on criminal prosecutor for multiple acts of misconduct both before and during trial

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

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer sanctions, Prosecutor criminal conduct, Prosecutorial misconduct ethics

Illinois Review Board recommends disbarment for criminal prosecutor who had personal relationships with criminal defendant and a minor witness in another case

Hello and welcome to this Ethics Alert blog which, in keeping with the theme of discipline of former criminal prosecutors, will discuss the recent Report and Recommendation of the Illinois Disciplinary Review Board to uphold the Illinois Hearing Board’s recommendation that a former criminal prosecutor who had personal relationships with a criminal defendant whom he was prosecuting and an underage witness in another case be disbarred.  The case is In re: Hunter Hogan, Commission No. 2011PR00047 (June 26, 2013).  I previously discussed the Illinois Disciplinary Hearing Board’s Report and Recommendation in my December 10, 2012 Ethics Alert.  The Review Board’s Report and Recommendation is here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10997.

The Review Board’s Report and Recommendation provides the following factual summary:  “The Administrator charged (the lawyer) with misconduct arising out his conduct in two matters (the lawyer) handled while he was an Assistant State’s Attorney in Carroll County.”

“In the first count, the Administrator alleged that (the lawyer) overreached his position of trust as a prosecutor when he began a personal relationship with a defendant, K.I., in a case he  prosecuted. (The lawyer) engaged in a discussion with K.I. while she was in jail.  After K.I. was sentenced and released from custody, (the lawyer) had another conversation of a personal nature.  (The lawyer) took K.I. out to dinner, and while in the car, touched her leg and kissed her.  (The lawyer) later sent K.I. four text messages.”

“In the second count, (the lawyer), in his capacity as an Assistant State’s Attorney, charged A.F. with child pornography for taking pictures of J.C., who was 14 years old when the pictures were taken.  During the course of  the prosecution of the case, (the lawyer) developed a personal relationship with J.C. and her family.  As a result of that relationship, (the lawyer) was removed from the case, but he continued the relationship with J.C. and her family.  On February 22, 2010, when J.C. was 17 years old, she was at (the lawyer’s) apartment, and he kissed her and touched her breast.”

“(The lawyer) failed to appear at his disciplinary hearing.  The Hearing Board filed a Report and Recommendation concluding that (the lawyer) engaged in overreaching his position of trust and authority as a prosecutor in  both matters.  The Hearing Board concluded that (the lawyer) engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of  the 1990 Rules of Professional Conduct or 8.4(d) of the 2010 Rules because his conduct undermined the authority of the State’s Attorney’s Office and the criminal justice system. The Hearing Board also concluded that with respect to the second matter, (the lawyer) engaged in criminal conduct in violation of Rule  8.4(b). The Hearing Board recommended that (the lawyer) be disbarred.”

“(The lawyer) filed exceptions to the Hearing Board’s Report and Recommendation.  Upon review, the Review Board noted that (the lawyer’s) brief failed to comply with the Rules and failed to provide a comprehensible basis for the review of the Hearing Board’s conclusions. The Review Board reviewed the record and found no reason to disturb the Hearing Board’s findings or recommendation. The Review Board recommended that (the lawyer) be disbarred.”

Bottom line: The Illinois Supreme Court will now review the Report and Recommendation and issue a final disciplinary opinion.  Not sure what was going through this lawyer’s mind; however, it may not have been much.  This appears to be another example of a lawyer behaving badly, who in this case happened to be a criminal prosecutor sworn to uphold justice and the law.

Be careful out there.

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

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer conflict of interest, Lawyer criminal conduct, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Prosecutor criminal conduct, Prosecutorial misconduct ethics

lllinois discipline board recommends that former criminal prosecutor who engaged in inappropriate conduct toward a minor defendant and minor victim in separate criminal cases be disbarred

Hello everyone and welcome to this Ethics Alert blog which will discuss very recent report and recommendation of an Illinois discipline board that a former criminal prosecutor who engaged in inappropriate conduct with a defendant and victim in separate criminal cases should be disbarred.  The case is In the Matter of Hunter Logan, Illinois Disciplinary Commission No. 2011PR00047 No. 6296751 (11/30/12).  The report and recommendation is  at: http://www.iardc.org/HB_RB_Disp_Html.asp?id=10706.

According to the report and recommendation, the lawyer was admitted to practice law in Illinois in November 2008.  In February 2009, he began working as an assistant state attorney in Carroll County, assisting in the prosecution of misdemeanors and petty offenses.

In the first matter, before April 2, 2009, the lawyer was assigned to prosecute two cases involving K.I., a minor female. On March 9, 2009, K.I. entered a plea of guilty to the offense of minor drinking and was sentenced to 22 days incarceration with a 12 month period of conditional probation to follow.  K.I. was later arrested again and incarcerated in the county jail.  On October 21, 2009, the lawyer went to the jail and met with K.I. without being asked.  He discussed the new case and then asked her about her personal history.  K.I. told him that (among other things), she had a 37 year old boyfriend and was interested in photographic journalism.  K.I. also told the lawyer that she drank to intoxication almost daily, had experimented with controlled substance, and had poor relationships with her family.  This meeting lasted “a couple of” hours.

Between January 8, 2010 and January 14, 2010, the lawyer saw K.I. at the courthouse with her grandparents and she told him she was waiting to get admitted to a halfway house.  She also again told him about her interest in becoming a photographic journalist and the lawyer offered to lend her an old digital camera and told her to contact him about it.  About two weeks later, K.I. called the lawyer at the prosecutor’s office and they had a 25 to 40 minute personal conversation.  At the end of the conversation, the lawyer told K.I. that he would drop the camera off at her grandparents’ home.

On January 24, 2010, the lawyer drove to K.I.’s grandparents’ house where she was staying and asked her if she wanted to go with him to Wal-Mart.  K.I. testified that she thought his request was unusual because he was the prosecutor in her case, and she was afraid that if she did not go with him, he could create problems for her.  Before going to Wal-Mart, the lawyer stopped at Applebee’s restaurant.  A condition of K.I.’s probation on her first case was that she could not go to a restaurant that had a bar or be around alcohol and Applebee’s had a bar.  K.I. was also 19 years old and she had just completed an alcohol treatment program.  They were seated next to the bar, and the lawyer asked her if she wanted a drink.  She declined and thought the lawyer was trying to set her up or test her.

On the car ride back to her house, K.I. told the lawyer that she had “a crush on him forever” and he put his hand on her inner thigh and she “moved his hand away”.  The lawyer then tried to put his hand on her thigh a second time, K.I. moved it away again and told him to stop.  He then pulled into a gas station and when he got back into the car, he grabbed her chin and kissed her.  She pushed him away and he kissed her again.  He started to become agitated, and asked K.I. if they could go back to his apartment.  She said she wanted to go home, and he became more agitated.  K.I. then got out of the car and the lawyer agreed to drive her home and when she got home, she told her grandmother what had happened.

The following day, the lawyer sent four text messages to K.I., to which K.I. did not respond.  K.I. had no further contact with the lawyer and she showed the text messages to her probation officer. The probation officer then prepared and submitted a memo detailing the incident to the State’s Attorney and, on February 17, 2020, the State’s Attorney confronted the lawyer.  The lawyer did not deny the allegations or think he did anything wrong.  The State’s Attorney then told the lawyer he could no longer work for his office and the lawyer submitted his resignation on February 26, 2010.

In the second matter, a complaint was filed against A.F. in April 2009 charging him with violating a civil no contact order related to J.C., a minor female.  J.C.’s mother, Naomi, testified that A.F. physically and verbally abused J.C. and, as a result of that relationship, J.C. became emotionally unstable, attempted suicide and was admitted to an in-patient treatment program.  The lawyer met J.C. while prosecuting that case and, in June 2009, after additional investigation, the lawyer filed a two-count complaint charging A.F. with child pornography by photographing J.C. in several poses with her genitals exposed, with the intent to disseminate the photos.

After the charges were filed, J.C. developed a friendship with the lawyer and they saw each other once or twice a week.  He visited J.C.’s family at their home and the lawyer, J.C. and Naomi would also go out to eat.  By mid-July 2009, the lawyer asked State’s Attorney to remove him from the A.F. case because his impartiality in the matter had been questioned.  After discussing the matter with the lawyer, the State’s Attorney learned of the lawyer’s involvement with J.C., and told him to have no further contact with her or her family.

In late January 2010, after the lawyer was told to have no contact with her, J.C. went to the lawyer’s apartment.  At that time, J.C. was 17 years old and the lawyer was 34 years old.  The lawyer was lying down on the sofa on his side, and J.C. was lying down in front of him on her side.  The lawyer told J.C. he was having dirty thoughts, and began rubbing her side.  The lawyer then slipped his hand up J.C.’s blouse and touched her breast and she “panicked”, got up from the sofa, and said she had to go.  The lawyer grabbed her waist and asked her not to go and she then sat down next to the lawyer, kissed him, and left his apartment.  This was the only occasion that the lawyer had sexual contact with J.C.  The lawyer later told J.C.’s mother that he had kissed J.C. and she became angry and ordered him out of her house.

J.C. later testified that she trusted the lawyer and called him a “hero” on her MySpace page.  She also considered the lawyer to be her “knight in shining armor” because he was on her side in the A.F. matter when no one else was there for her.  After the lawyer left Carroll County in February 2010 (as a result of the K.I. incidents), J.C. thought he was a coward and she did not understand why he would leave her alone.  The lawyer did not explain why he left and J.C. had no contact with him after that.

On May 20, 2011, a two-count disciplinary complaint was filed against the lawyer and, on May 26, 2011, a first amended Complaint was filed, correcting an error in the original Complaint. The first amended Complaint alleged that the lawyer engaged in inappropriate conduct in the two above instances.  The first count alleged that the lawyer overreached his position of trust as a prosecutor when he engaged in the conduct related to minor defendant K.I.  The second count alleged that the lawyer engaged in an improper relationship with the minor victim J.C. and her family.

After conducting proceedings, the hearing panel recommended that the lawyer be found guilty of violating Illinois Bar Rules and that he be disbarred.  “We base this recommendation on the facts that Respondent was in a position of trust and authority, used that position to take advantage of vulnerable girls, and has demonstrated no acknowledgment of his misconduct.  We place substantial weight on Dr. Henry’s expert opinion that Respondent lacked an understanding of the relationship between an attorney and defendant or client, and that Respondent believed there was nothing wrong with the relationships he had with J.C. and K.I.  Most importantly, Dr. Henry concluded that without treatment, Respondent is at risk to engage in similar conduct in the future, especially with vulnerable and susceptible clients.  Given that attorneys meet and represent vulnerable and susceptible clients every day, Respondent is a threat to the community at large.  Accordingly, we find that the only way to protect the public from further misconduct is to disbar Respondent.”

Bottom line:  If the facts in the report are true, this prosecutor’s conduct is so wrong on so many levels.  What in the world could he have been thinking…or not thinking.

Be careful out there!

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

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer criminal conduct, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Prosecutor criminal conduct, Prosecutorial misconduct ethics

Illinois disciplinary board recommends 4 month suspension for state prosecutor who pulled gun on process server attempting to serve a complaint and summons

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent report and recommendation of the Illinois disciplinary board of a 4 month suspension for prosecutor who pulled a gun on a process server who was attempting to serve him with a summons in a federal lawsuit.  The case is In the Matter of Allen W. James, No. 6239218, Commission No. 08 SH 105 (November 15, 2012).  The Board’s Report and Recommendation is at http://www.iardc.org/HB_RB_Disp_Html.asp?id=10635.

According to the report and recommendation, a licensed private detective, Dees, had been attempting to serve the lawyer, a criminal prosecutor, with a summons and complaint in a federal lawsuit in which the lawyer was named as a defendant since he was the State’s Attorney of Union County, Illinois.  The process server attempted to serve the lawyer at both his office and his home; however, he was unsuccessful since the lawyer was apparently intentionally avoiding service of the summons.

On the morning of March 19, 2008, the process server approached the lawyer in the parking lot of the Union County Courthouse in an attempt to serve the summons and complaint.  According to the board’s report and recommendation, the process server identified himself, displayed a badge, stated he was a process server, and called the lawyer by his name. The lawyer then pulled a loaded .380 semi-automatic handgun from his pocket and pointed it at the investigator.  The process server identified himself again and the lawyer continued to point the gun at him.  The process server then dropped the summons at the lawyer’s feet and left and no shots were fired.  The investigator reported the incident to the Union County Sheriff’s Department.  The lawyer was subsequently charged with aggravated assault and found guilty of that crime.

The lawyer was then charged with violation of Illinois disciplinary rules for misconduct related to criminal charges.  A hearing board conducted proceedings and issued a report stated, in part: “(i)n summary, we find that the Respondent committed the criminal offense of Aggravated Assault in the parking lot of the Union County Courthouse on March 19, 2008, in that the Respondent, without justification, knowingly drew and pointed a loaded handgun, a deadly weapon, at Christopher Dees, a process server, thereby placing Mr. Dees in reasonable apprehension of receiving a battery.  We also find that, before the Respondent drew his handgun, he knew or had a strong suspicion that Mr. Dees was a process server who was attempting to serve summons on the Respondent, as the Respondent knew Dees had attempted to do on the previous day at both the Respondent’s office and home.  We further find that, at the time the Respondent drew his handgun, the Respondent did not believe that Mr. Dees posed a threat to his safety, and the Respondent did not draw his handgun for the purpose of protecting himself from physical harm.”

The hearing board concluded that the lawyer engaged in conduct prejudicial to the administration justice and recommended a 6 month suspension.  After reviewing the hearing board’s findings and considering the aggravating and mitigating circumstances, the disciplinary board recommended a 4 month suspension.  The Illinois Supreme Court will consider the matter and issue a final disciplinary opinion.

Bottom line:  Don’t pull a gun and commit an assault on a process server (who is just doing his or her job)…particularly if you are a criminal prosecutor charged with upholding the law…

Be careful out there!

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

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Pennsylvania Assistant District Attorney receives public censure after arrest and diversion for possession of cocaine and marijuana

Hello everyone and welcome to this Ethics Alert which will discuss the recent Pennsylvania disciplinary opinion imposing a public censure on a former state criminal prosecutor who was arrested of possession of cocaine and marijuana and later received a diversion and dismissal of the criminal charges.  The case is Pennsylvania Disciplinary Counsel vs. Yanoff, No. 71 DB 2012 (October 4, 2012).

According to the Pennsylvania Supreme Court opinion, on November 29, 2008, the lawyer was in a vehicle in a driveway near a city street in Philadelphia, Pennsylvania.  A police officer observed him empty a white powdery substance onto a magazine, and use a straw to snort the substance.  The lawyer was arrested and found to be carrying a blue “ziplock” packet containing 1.079 grams of cocaine and a small plastic bag containing .79 grams of marijuana.

At the time he was arrested, the lawyer had recently been hired as an Assistant District Attorney in Philadelphia.  Following his arrest, the District Attorney’s office suspended the lawyer without pay.  On November 30, 2008, the lawyer was arraigned and formally charged with possession of a controlled substance (cocaine) and possession of a small amount of marijuana, in violation of Pennsylvania criminal statutes and he resigned his position as an Assistant District Attorney on December 8, 2008.

On December 21, 2009, the lawyer entered a nolo contendere plea to possession of a controlled substance (cocaine) and possession marijuana and was placed on supervised probation for a maximum term of 12 months, subject to drug testing and screening.  The lawyer successfully completed the probation on December 29, 2010 and the criminal charges were dismissed without an adjudication of guilt.

The Pennsylvania Disciplinary Counsel charged the lawyer with violating Pennsylvania Bar Rules.  The lawyer subsequently entered into a consent agreement wherein he admitted violating Pennsylvania Rule of Professional Conduct: RPC 8.4(b), which states that “it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” and agreed to a discipline of public censure.   According to the consent agreement (which was adopted in the opinion), the following mitigation was present:  remorse by pleading nolo contendere to the criminal charges; payment of the full amount of costs that was imposed upon him by the Court as a result of his plea; admission to engaging in misconduct and violating the charged Rule of Professional Conduct;  “remorseful for his misconduct and understands he should be disciplined, as is evidenced by his cooperation with Petitioner and his consent to receiving a public censure”; no prior criminal history; and no prior disciplinary history.

Bottom line:  Notwithstanding the fact that he was a state criminal prosecutor, this Pennsylvania lawyer’s criminal case was dismissed and he received a minimal discipline of a public censure (reprimand) by showing remorse and other mitigating factors.  I don’t know if I need to say this, but lawyers (particularly those who are supposed to uphold the criminal laws) should not possess and use cocaine and possess marijuana since it is obviously against the law.  A lawyer/state prosecutor in Florida might also not receive such a relatively minimal discipline and would almost certainly lose his or her job.

Be careful out there!

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, EsquireLaw Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Lawyer criminal conduct, Lawyer discipline, Lawyer drug misconduct, Prosecutor criminal conduct