As we promised in an earlier piece, here is an update on the disciplinary prosecution of Cape and Islands Assistant District Attorney Laura Marshard. Earlier this year, she went to trial on disciplinary charges related to suppressing exculpatory evidence, failing to correct false testimony, and meeting with a represented witness without notifying or obtaining permission from the witness’s lawyer. In October, the Massachusetts Board of Bar Overseers concluded that she deserved to be disciplined for the last count. While the Board’s recommendation of a public reprimand is not the most compelling outcome (though it’s something more than a private reprimand), by making that information more public, The Open File can help promote the deterrence of future misconduct.
The good news here is that the Board did not let Marshard’s lawyer’s opening argument persuade them. As we explained in our earlier coverage:
She argued, “Should you decide against her, Ms. Marshard would be the very first prosecutor ever disciplined in Massachusetts for withholding evidence. . . . Judges have dismissed charges for much worse; none of these [attorneys] have been disciplined.” In other words, Marshard’s position is that the bar’s historical failure to hold prosecutors accountable means that prosecutors should not be held accountable. If the Board falls prey to this claim, it may as well exempt prosecutors from the ethical rules altogether.
The bar’s long history of silence in the face of prosecutorial misconduct cannot justify silence in perpetuity. Here, the Board found that Marshard’s misconduct was “willful and intentional, not accidental or peripheral,” and that she showed a “lack of candor” during her testimony before the hearing. The Board’s decision is thorough—taking the reader right into the nitty-gritty details of a racially divisive prosecution stemming for a late night, alcohol-infused, post-bar confrontation turned street fight. It can be found here.
Rather than focus on the details of the case in which Marshard broke an important ethical rule, we want to look at how she and her boss have responded to the Board’s findings. Michael O’Keefe, the elected DA, refused to acknowledge his employee’s wrongdoing, immediately claiming that they would appeal the Board’s recommendation. The local paper of record in Martha’s Vineyard, The MV Times, published an editorial summarizing how wasteful and irresponsible O’Keefe’s position is: “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.”
Perhaps O’Keefe is in for a pound and not just a penny in this matter. Not only does the Board take Marshard to task for her behavior during the disciplinary proceeding, but it also calls into question other prosecutors who took the stand. The MV Times reported: “The 58-page decision concludes by taking a shot at Mr. O’Keefe’s lieutenants. ‘Finally, we are concerned that apparently one of the respondent’s witnesses, a Second Assistant District Attorney, and perhaps a First Assistant District Attorney as well, took the position that [Ms. Marshard’s] ex parte contact with a represented person concerning the subject of the representation was, in effect, business as usual.’” This damning observation reveals that Marshard is not some rogue in the Cape and Islands outfit; instead, O’Keefe may be running an office that fails to live up to its ethical duties.
Although the Board technically cleared Marshard of some of the charges brought against her, it appears that her troubles are far from over, in part because of her own refusal to be transparent and accountable in the face of the inquiry about her conduct. In the prosecution of Carlos Stevenson, Marshard failed to disclose that her key law enforcement witness was on paid leave and under investigation for repeatedly lying during that internal probe. In fact, the Board is widening the scope of its inquiry into Marshard’s behavior. As a prosecutor, one would expect Marshard would know that the Massachusetts Board of Bar Overseers would not respond well to a failure to take responsibility. But, she did herself no favors in her disciplinary proceedings. As the Board put it:
“The respondent demonstrated lack of candor concerning several matters and at various times. The consistency and extent of her misleading or false assertions bespeaks something more than mere negligence or slip of the tongue during her testimony before us, and in each instance the respondent was defending herself against charges of misconduct.”
Aren’t prosecutors the ones usually telling suspects not to make a situation worse than it needs to be?
In sticking with Marshard through all of this, O’Keefe may have stepped into a politically-charged situation. As elected District Attorneys come under increased public scrutiny, the local newspaper has sounded the bell, and prosecutorial misconduct will certainly be a major campaign topic: “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.” Take notice one, take notice all.