Sunday, February 27, 2011

Reprimand For Rape Shield Law Violation

The Vermont Professional Responsibility Board has publicly reprimanded an attorney admitted in 2005. The attorney represented a criminal defendant through a contract with the public defender. The case involved charges of aggravated sexual assault and domestic assault. The attorney sought to introduce evidence of past sexual acts of the victim:

In the week prior to the trial...the court made several specific pre-trial rulings that prohibited the defense from referring to the complaining witness’ sexual behavior.  On the first day of the trial, before the jury came in, Respondent asked that the court reconsider the rulings.  The request was denied, and the court noted that these rulings had been made on at least three prior occasions.        On Respondent’s cross-examination of Detective Tyler Kinney, one of the State’s witnesses, Respondent asked the detective if he had learned during his investigation that the complainant had had sex with three other men.  The court sustained the State’s objection to the question.  The court then excused the jury and told Respondent that he was in direct contempt of the earlier rulings.  The court later granted the State’s motion for mistrial.

            Respondent stipulated that his disobedience of the court order was knowing.  The trial court found that his conduct “was an intentional violation of the court’s pre-trial rulings and the Vermont Rape Shield Law.”  The court found him directly in contempt and fined him $2000.00, the cost of drawing the jury and one day of trial.  Respondent appealed to the Vermont Supreme Court.  The Supreme Court affirmed the trial judge’s ruling in rather strong language. “Counsel’s conduct is particularly egregious given the purpose of the rape-shield law. . . .  Under no circumstances could counsel have reasonably believed that his question about the victim’s sexual encounters in 2006 was appropriate, and the court’s finding that he willfully violated its prior rulings is amply supported by the evidence.  The only purpose of this question was to intentionally prejudice the jury, and the court correctly characterized counsel’s conduct as calculated and outrageous.  It acted well within its discretion in finding [him] in contempt.”

The board found that mitigating factors made suspension inappropriate notwithstanding the attorney's knowing disobedience of a court order. (Mike Frisch)

Bar Discipline & Process | Permalink

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