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Mass. Disciplines Prosecutors: No More Business as Usual

by Derek Gilna

Prosecutorial misconduct is considered a cancer by many criminal justice experts, eating away at the credibility, moral authority, and public support for the criminal justice system. However, the recent actions of the Massachusetts Board of Bar Overseers in sanctioning Cape and Islands Assistant District Attorney Laura Marshard for “suppressing exculpatory evidence, failing to correct false testimony, and meeting with a represented witness without notifying or obtaining permission from the witness’s lawyer,” according to the website The Open File, hopefully will be a step in the direction of more (some) prosecutorial accountability.

The October 2017 order from the Massachusetts Board of Bar Overseers, after an eight-day trial, resulted in a public reprimand, generally considered the highest level of discipline that does not require a suspension of the license to practice, on the charge of meeting with a represented party without his counsel present. It also opened the trial record to the public.

This sanction is significant because in most instances prosecutors on both the state and federal levels are not held accountable for ethical violations that dilute a defendant’s rights to a fair trial. One could argue that the bar’s lack of meaningful disciplinary action for previous prosecutorial misconduct has fostered an attitude of arrogance that appeared to be evident in the defense’s opening statement.

“Should you decide against her,” defense counsel argued, “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.”

To its credit, the Board of Bar Overseers rejected this argument, and with its order, took a small step toward deterring future prosecutorial misconduct, finding her conduct “willful and intentional, not accidental or peripheral” and that Marshard displayed a “lack of candor” in board testimony.

Rather than take the board’s harsh critique of Marshard’s ethical and professional lapses as a wake-up call for the need to remind all prosecutors in his office of their obligations, Michael O’Keefe, her boss and elected DA, refused to acknowledge Marshard’s wrongdoing. Instead, he immediately announced that his office would appeal the board’s recommendation.

However, the local newspaper, MV Times, published a scathing editorial detailing O’Keefe’s wasteful and irresponsible attitude: “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.”

The editorial continues by noting how the board’s 58-page decision also takes O’Keefe’s top lieutenants to task. “Finally, we are concerned that apparently one of [Marshard’s] witnesses, a Second Assistant District Attorney, and perhaps a First Assistant District Attorney as well, took the position that [Marshard’s] ex parte contact with a represented person concerning the subject of the representation was, in effect, business as usual,” wrote the board. That’s an extraordinary admission—that blatant violations of their ethical obligations are routine within the office. The board also indicated that it is investigating possible misconduct in other cases.

The MV Times editorial summed up the behavior of those involved as follows: “That’s disturbing for Ms. Marshard. That’s disturbing for the DA’s office. And, ultimately, that’s disturbing for justice.” 


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