December 19, 2017

A Warning To Those Who Repeatedly Violate The Rules; In re Neary

Category: Indiana Law Review | Author: | Share:

Prosecutors have a special role in our society, and it is particularly problematic when they flaunt ethical rules. And while those of us in civil practice may not be able to do the types of things the attorney did in this case, it is a reminder that willful and repeated violation of our ethical obligations will likely result in a stiff punishment.

Robert Neary was the chief deputy prosecutor in LaPorte County, and was charged with two counts of misconduct related to his performance in that position. The first incident occurred in December 2012. John Larkin was being held for questioning and agreed to give a statement with his attorney, Neary, and others present. Audio and video of this interview were sent to the police station control room.

They took a break about an hour into the interview, and Larkin and his attorney remained in the room to discuss defense strategy. But while it was common practice for the recording system to be turned off during breaks, it was not turned off during this break. Neary later watched the entire video of the interview, including the confidential discussions. He provided a copy of the interview to Larkin’s counsel, but did not tell him that the break discussion was recorded.

Larkin’s counsel moved to dismiss because of the recording of the break discussion. Neary then filed an unsealed response in which he recited the contents of the break discussion, and he attached as exhibits the DVD and a written transcript unsealed. The charges against Larkin were eventually dismissed.

In the second incident, Brian Taylor was being held in custody for questioning in March 2014. When Taylor’s attorney (Payne) arrived, Neary was summoned to the station to assist with any issues that might arise. He then escorted Payne to the interview room, so the two could meet privately. But neither Taylor nor Payne were told that live audio and video feeds were available in the station’s “war room.”

After the meeting began, Neary and several detectives gathered in the war room to watch and listen to Taylor’s confidential discussion. During that discussion, Taylor told Payne where a gun was located. After this was revealed, the audio in the war room was disabled and Neary told the detectives not to recover the weapon. Two detectives disobeyed and retrieved the gun.

Neary did not inform Payne of what had happened. But after the police chief found out what happened, he told Neary that he needed to tell Payne what happened. Neary did so, and self-reported to the Disciplinary Commission.

Unsurprisingly, the Court found that this conduct “easily” met the threshold for disciplinary action.

Respondent’s conduct in both cases fundamentally infringed on privileged attorney-client communications and, at an absolute minimum, has caused significant delays and evidentiary hurdles in the prosecutions of Taylor and Larkin, even assuming they still can be prosecuted at all. Respondent’s attempts to downplay the seriousness of his invasion of the attorney-client privilege—for example, by claiming he was not paying close attention to the Taylor-Payne conversation until the gun was mentioned, or by noting the proactive measures undertaken sua sponte by the trial court to shield Respondent’s filings in response to Larkin’s motion to dismiss from public access—are wholly unavailing.

The Court described Neary’s conduct as “egregious,” “flagrant,” “unconscionable,” “shameful,” “abhorrent,” and “reprehensible.” Therefore, it chose to give him a sanction “at the upper end of the disciplinary spectrum.” But rather than disbarring Neary, the Court found that the mitigating circumstances warranted a four-year suspension without automatic reinstatement.

Lesson:

If a prosecutor knowingly eavesdrops on a criminal defendant’s discussions with his attorney, then that prosecutor can expect to be disciplined.