Friday, August 11, 2017

"We Are Hesitant...To Ground A Finding Of Professional Misconduct On A Post Hoc Parsing Of Semi-Spontaneous Oral Statements Made During The Heat Of Trial"

A majority of the Indiana Supreme Court has concluded that disciplinary charges against a prosecutor were not proven by clear and convincing evidence

At relevant times, Respondent served as a deputy prosecuting attorney in Marion County. In 2012, Respondent represented the State during the trial of Bruce Ryan on charges of sexual misconduct with a minor. In 2013, Respondent represented the State during the trial of Brandon Brummett on charges of child molesting and sexual misconduct with a  minor. Both trials resulted in convictions and, in the ensuing direct appeals, each defendant’s convictions were challenged on grounds of prosecutorial misconduct. Based on the appellate records that were before us, and applying the well-settled standards for reviewing such claims in a criminal setting, we concluded that prosecutorial misconduct indeed had occurred in each trial. We reversed Brummett’s convictions, summarily affirming the Court of Appeals’ conclusion that the cumulative effect of several of the challenged actions by Respondent and her co-counsel amounted to fundamental error. Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014), aff’d on reh’g, 21 N.E.3d 840, summarily aff’d in relevant part on transfer, 24 N.E.3d 965 (Ind. 2015). We affirmed Ryan’s convictions after concluding the misconduct did not rise to the level of fundamental error. Ryan v. State, 9 N.E.3d 663 (Ind. 2014).

A referee appointed to hear the resulting bar charges found no misconduct had been proven. The Disciplinary Commission then sought review.

The hearing officer relied heavily on our decision in Matter of Smith, 60 N.E.3d 1034 (Ind. 2016), which we issued after the instant case was charged and tried but before the hearing officer issued his report. Like the instant case, Smith involved a deputy prosecutor charged with professional misconduct in the wake of an appellate reversal of a defendant’s conviction on grounds that included prosecutorial misconduct. Also like the instant case, the Commission’s prosecution of the disciplinary action in Smith was structured largely around the notion that a criminal appellate finding of prosecutorial misconduct was dispositive of the question of professional misconduct in disciplinary proceedings. We rejected this notion in Smith and we do so again here...

At issue in the instant disciplinary proceedings are one portion of Respondent’s closing argument during the Ryan trial and six portions of her closing argument in the Brummett trial. Most of these instances were addressed and held to have been prosecutorial misconduct in the respective criminal appeals. Similar to the respondent in Smith, Respondent has attempted in this disciplinary proceeding to provide additional context for the events at issue. And like Smith, the hearing officer ultimately found Respondent’s testimony credible.

The parties and the hearing officer have exhaustively dissected the segments of closing argument at issue, as framed by the additional context provided during these disciplinary proceedings. We find Respondent’s post hoc explanations as a whole to be somewhat less convincing than the extrinsic evidence adduced in Smith, but we also are hesitant on these facts to ground a finding of professional misconduct on a post hoc parsing of semi-spontaneous oral statements made during the heat of trial. Keeping in mind the Commission’s burden of proof and the emphasis we afford factual findings arising from the hearing officer’s opportunity to observe witnesses directly and adjudge their credibility, a majority of this Court accepts the hearing officer’s report and recommendation and concludes that the Commission’s allegations of professional misconduct against Respondent have not been clearly and convincingly proven.

A note of caution

We caution that by no means should our opinion today be read as an endorsement of Respondent’s actions. For the reasons outlined in Ryan and Brummett, we continue to disapprove of arguments that invite a conviction for reasons other than a defendant’s guilt, impugn the integrity of defense counsel, or otherwise create a “good guy / bad guy dichotomy” between the respective roles of the State and defense counsel. Arguments of this nature, whether intentionally or carelessly made, endanger the defendant’s right to a fair trial and the probability that any resulting conviction will survive appellate review. It is no small thing for a conviction to be reversed and a case retried, particularly in cases such as these involving allegations of sex offenses against children; it delays justice, places a strain on limited judicial resources, and forces victims and others to testify yet again. Respondent’s conduct in these cases caused one conviction to be lost, placed another at unnecessary risk of being lost, and placed herself at risk of professional discipline. Prosecutors would be well-advised to exercise better care in crafting their presentations to juries than Respondent did here.

Indystar reported on the Brummett case and links to the opinion of the Court of Appeals. 

It is hard of reconcile the result here with the findings and conclusion of that court as the conduct was apparently more than an isolated episode

Here, the prosecutor not only impugned the integrity of defense counsel but also suggested that the role of defense lawyers was to help guilty men go free. Id. We agree with Brummett that the prosecutor attempted to create a good guy/bad guy dichotomy that portrayed defense counsel as the “bad guy.”

...Here, as in Gaby, the credibility of the girls is the central issue in the case. Id. We find that the prosecutor’s statement that “these kids do not . . . they do not lie about the Defendant,” was not based on any evidence outside of the girls’ testimony and conclude that the statement constituted improper vouching.

...The attitude displayed by the prosecutor in the above exchange amounts to belligerence toward the defendant. We agree with Brummett that the questions were argumentative and inflammatory and amounted to prosecutorial misconduct.


We conclude that the prosecutor engaged in prosecutorial misconduct by improperly distinguishing between the role of the defense and the prosecution, by improperly vouching for the State’s witnesses, and by asking argumentative and inflammatory questions. The cumulative effect of this misconduct amounted to fundamental error, as it placed the defendant in grave peril and made a fair trial impossible. Consequently, the defendant is entitled to a new trial.

That is a fair amount of misconduct to excuse under ethics rules that govern the profession.

The Indiana Lawyer had the story of a prior reprimand.

DePrez, who began practicing in May 2007 and worked in the prosecutor’s office sex crimes division, was arrested in July 2009 for drunk driving in Broad Ripple. She faced charges of driving while intoxicated and leaving the scene of an accident, but a special prosecutor from Monroe County allowed her to plead guilty and avoid that drunken driving conviction. She pleaded guilty in November to reckless driving, and received 24 hours of community service and 90 days on nonreporting probation.

Spokeswoman Susan Decker with the prosecutor’s office wasn’t sure what DePrez has been doing since, but said she is being re-hired for the same position she held before the drunken driving incident. DePrez restarts in the sex crimes unit June 7, despite the public reprimand from the Indiana Supreme Court on Rule 8.4(b) and an order to pay for costs of the disciplinary proceedings.

(Mike Frisch)

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