Friday, March 30, 2012
In an unusual twofer, the Wisconsin Supreme Court has imposed professional discipline on both the prosecutor and defense counsel in a criminal case. The underlying case involved charges of vehicular negligent homocide.
The prosecutor was suspended for 30 days, primarily for making false representation about the disclosure of accident scene photographs. The referee had propsed a public reprimand.
It being Wisconsin, there was some expressed disagreement among the justices.
Chief Justice Abrahamson concurred and commented on Justice Prosser's concurrence/dissent;
The lawyer discipline system, including the work of the Office of Lawyer Regulation (OLR), the Preliminary Review Committee, the referees, and this court, like any system, has its strengths and also its opportunities for improvement. Reasonable people can and do disagree about the virtues, the snags, and the changes needed.
But I am disappointed when a justice of this court unfairly and wrongly undermines the lawyer discipline system, a decision of this court, and the actions of the justices joining the per curiam opinion with unwarranted, unfounded accusations. I therefore write in response to Justice Prosser's concurrence/dissent.
The concurrence/dissent charges that the "handling of [the Humphrey] case has been so irregular that it is unfair to the attorney and seriously undermines confidence in the lawyer regulation system, especially the actions of this court." See concurrence/dissent, ¶¶132, 159.
The concurrence/dissent does not and cannot back up this harsh charge.
In spite of the storm and fury and nasty insinuations about the court's actions, it turns out that the concurrence/dissent disagrees only with the imposition of a 30-day suspension. The concurrence/dissent joins the opinion of the court in concluding that Attorney Humphrey violated the Rules of Professional Conduct twice, by misrepresentations to the trial court.
Justice Prosser, in part:
When [prosecuting] Attorney Humphrey's case was argued on April 10, 2008, Justice Annette Kingsland Ziegler did not participate. She did not participate because [defense] Attorney Sommers had been a candidate for the supreme court against Justice Ziegler in 2007. Justice Ziegler apparently decided that if she should not sit in the Sommers case, she should not sit in the Humphrey case either. This reduced the size of Humphrey's court from seven to six.
Justice Louis Butler did sit in the Humphrey case, but when this court decided to hold the release of any decision on Attorney Humphrey until reaching a decision on Attorney Sommers, it effectively knocked the departing Justice Butler off the case and reduced the size of the court to five.
The decision to hold Attorney Humphrey's case in abeyance had another unfortunate effect: Attorney Humphrey was left twisting in the wind for three and one-half years while this court struggled to resolve the intractable Sommers matter.
Attorney Humphrey played no part in this delay. He simply paid the price for it. The court should have separated the two cases and granted Humphrey's motion for reargument.
Beyond the unseemly delay and its adverse effect on Attorney Humphrey, this court has created the spectacle of invalidating one of the three counts against Attorney Humphrey but nonetheless increasing his discipline from a proposed public reprimand to an unprecedented 30-day suspension...
The defense attorney was also suspended for 30 days in a unanimous opinion, with Justices Ziegler and Gableman not participating. The opinion in that case discusses the complications caused by the separate hearings held in the two matters.
The defense counsel made allegations against the prosecutor, the trial judge, the Office of Lawyer Regulation and the referee appointed to hear the disciplinary case. The primary misconduct involved an in-court tirade and accusations against the judge:
Further context for these remarks [quoted in the opinion] was obtained at the 2009 evidentiary hearing before the referee. Judge Pekowsky testified that throughout [defense] Attorney Sommers' statements, Attorney Sommers was not looking to Judge Pekowsky but was speaking to "his" (i.e. Attorney Sommers') audience in the courtroom and that the entire courtroom was "frozen" during Attorney Sommers' tirade. Judge Pekowsky testified that the deputies in the courtroom kept getting closer to Attorney Sommers and he was afraid they would confront Attorney Sommers and cause a fight. Judge Pekowsky recalled that at one point during the May 24, 2004 hearing Attorney Sommers was so loud——louder than anyone Judge Pekowsky had ever heard speak "in any courtroom at any time before"——up to nine bailiffs rushed into the judge's courtroom "because they were concerned there was a huge fracas going on down here and somebody was going to get hurt and they had to intervene." Judge Pekowsky estimated that "most of the second floor of the City County Building" was disrupted by Attorney Sommers' behavior.
There also was a violation of the rule governing trial publicity;
Attorney Sommers has every right to publicly criticize the district attorney's office. However, engaging in pretrial publicity consisting of speculation, unproven allegations, and release of inadmissible evidence in a manner likely to prejudice the integrity of the judicial process may violate SCR 20:3.6. We conclude that the record supports the referee's conclusion that Attorney Sommers' actions during the Raisbeck matter violated [the Rule]...
The client was acquitted. (Mike Frisch)