Tuesday, November 7, 2017
The Indiana Supreme Court harshly sanctioned an eavesdropping prosecutor
We find that Respondent, Robert Neary, committed attorney misconduct by, among other things, eavesdropping on confidential attorney-client communications. For this misconduct, we conclude that Respondent should be suspended for at least four years without automatic reinstatement.
He was the chief deputy prosecutor in LaPorte County
On Friday, March 14, 2014, Brian Taylor was being held in custody at the Michigan City Police Department in connection with a homicide investigation. Attorney David Payne arrived at the station mid-afternoon to meet with Taylor, and Respondent was summoned to the station by the police chief to assist with any issues that might arise. Respondent and detectives escorted Payne to the interview room to meet with Taylor, a detective instructed Payne to flip a toggle switch outside the room "unless you want us listening to your conversation," and Payne did so. However, the switch merely controlled the recording system and did not disable the audio and video feeds, which were controlled in a separate area in the police station referred to as the "war room."
After Payne began his meeting with Taylor, Respondent and several detectives gathered in the war room. They did not disable the audio or video feeds, but rather watched and listened to the confidential attorney-client discussion. Ten to twenty minutes into the interview, Taylor and Payne discussed a gun allegedly used in the incident under investigation, and Taylor told Payne where the gun was located. A few minutes after that, the audio in the war room was disabled, the room was cleared, and Respondent instructed the detectives not to recover the weapon. Notwithstanding Respondent’s instruction, two detectives proceeded to the site identified by Taylor during his conversation with Payne and recovered a gun.
Respondent did not initially notify Payne of what had transpired. Three days after Payne’s meeting with Taylor, when the police chief learned of the overheard conversation and the subsequent recovery of a gun, the police chief emphasized to Respondent the importance of sharing that information with Taylor’s counsel. Respondent then notified counsel of what had happened and self-reported his conduct to the Commission shortly thereafter
On December 13, 2012, John Larkin was being held at the Long Beach Police Department (LBPD) in connection with the shooting death of his wife. Larkin had agreed to give a statement to investigators in exchange for being charged with voluntary manslaughter in lieu of murder. Present for this interview were Larkin, Larkin’s counsel, Respondent, LaPorte County Prosecutor Robert Szilagyi, and the LBPD officer who conducted the interview. The interview room was monitored by an audio and video feed sent to a control room elsewhere in the police station.
About an hour into the interview, the participants took a short break lasting approximately eleven minutes. Larkin and his counsel remained in the interview room after the others had left. Based on past practices, Szilagyi and Larkin’s counsel both believed the LBPD officer in the control room would turn off the recording during the break. However, the recording system was not turned off and continued to record while Larkin spoke with his counsel during the break about several confidential matters, including defense strategy (hereinafter the "break discussion").
Respondent first viewed the DVD of the interview, including the break discussion, about one month later. Respondent watched the entire break discussion even though the privileged status of that discussion either was, or should have been, immediately apparent to Respondent. Respondent provided a copy of the DVD, including the break discussion, to Larkin’s counsel but did not mention to counsel that the break discussion had been recorded.
Thereafter, Larkin’s counsel filed a motion to dismiss the voluntary manslaughter charge based on the recording of the break discussion. Respondent 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, both of which included the break discussion. The trial court ordered the transcript and all relevant information be placed under seal and instructed Respondent to resubmit his filing on green paper excluded from public access.
We share the hearing officer’s view that "the egregious nature of Respondent’s conduct cannot be overstated" and warrants a sanction at the upper end of the disciplinary spectrum. (Id. at 21-22). The Commission urges us to disbar Respondent. The severity of the misconduct and Respondent’s repeated transgressions certainly lend support to the notion that he should be disbarred. On the other hand, Respondent has no prior discipline, he self-reported his conduct to the Commission, and several persons testified to his good reputation in the community (although, as noted by the hearing officer, these persons did not appear to have been particularly well-informed of the circumstances giving rise to these disciplinary proceedings). At the end of the day, these considerations persuade us that the door should not permanently be closed on Respondent’s legal career and that he should be afforded an opportunity at an appropriate juncture to prove by clear and convincing evidence his professional rehabilitation and fitness to resume practicing law.