Friday, May 5, 2017

The Nebraska Supreme Court publicly reprimanded an attorney for a mid-trial press release

On July 22, 2016, relator filed formal charges against respondent. The formal charges contain one count generally regarding respondent’s statements to the press regarding his client’s refusal to testify at a murder trial. The formal charges alleged that by his conduct, respondent violated his oath of office as an attorney pursuant to Neb. Rev. Stat. § 7-104 (Reissue 2012) and Neb. Ct. R. of Prof. Cond. § 3-504.4(a) (respect for rights of third persons), as well as professional conduct rules §§ 3-503.6(a), 3-504.1(a), and 3-508.4(a), (c), and (d).

On September 19, respondent filed his answer to the formal charges, generally denying the allegations set forth in the formal charges.

A hearing was held

The substance of the referee’s findings may be summarized as follows: In July 2008, a 2-year-old child was murdered in her home in Scotts Bluff County. At the time she was murdered, the only adults present in the home were the child’s mother, who became respondent’s client; the client’s boyfriend, Dustin Chauncey; and their friend. A law enforcement investigation ensued, but no criminal charges were filed at that time. During the investigation, in late 2008 or early 2009, respondent began representing the client. Prior to respondent’s involvement, the client had given several inconsistent statements to law enforcement regarding the events that occurred on the night that her child was murdered, but after respondent became involved, the client gave no further statements to law enforcement.

In the criminal case, public pressure led to the appointment of a special prosecutor (Zimmerman) when responsible officials had failed to act

The grand jury convened and returned an indictment against Chauncey for intentional child abuse resulting in death, a Class IB felony. The grand jury also indicted the client as an accessory after the fact in the death of her child, a Class IV felony. The charges against the client were dismissed because the statute of limitations had run. The charges against Chauncey proceeded to trial.

The prosecutor sought the client's testimony

Chauncey’s trial commenced on February 23, 2015. [prosecutor] Zimmerman wanted the client to testify. On February 24, Zimmerman sent respondent an email containing an outline of the questions which Zimmerman intended to ask the client during his direct examination of her. Respondent did not respond to Zimmerman’s email. The client invoked her Fifth Amendment right to remain silent, and Zimmerman moved to grant the client immunity regarding her testimony. The court ordered that the client give her testimony and that if she refused, she would be held in contempt of court. After conferring with respondent, the client refused to testify, and she was held in contempt of court by an order filed February 24. On February 25, the client was brought back before the court. She again indicated that she was refusing to testify, and she continued to be held in contempt of court.

Then the press release that led to the bar charges

During the trial on February 25, 2015, Zimmerman learned that a press release had been issued to a local radio station. The press release had been issued at respondent’s direction on behalf of his client, and it stated:

“[The client] continues to desire to cooperate with the Prosecution, however, the only testimony they want to believe is their version of the truth. The Prosecution’s version of the truth, while inconsistent with the actual events, forces [respondent’s client] to either lie or face perjury charges. She continues to desire justice for her daughter . . . but will not lie to achieve that result.”

The court

The evidence in the present case establishes, among other facts, that respondent knowingly issued a press release on behalf of his client which called into question the integrity of Zimmerman, who was the attorney prosecuting the criminal case against Chauncey. The press release indicated that Zimmerman wanted respondent’s client to testify at the trial and “‘to either lie or face perjury.’” More fully, the press release stated that “‘[t]he Prosecution’s version of the truth, while inconsistent with the actual events, forces [the client] to either lie or face perjury charges. She continues to desire justice for her daughter . . . but will not lie to achieve that result.’”

As aggravating factors, we note, as did the referee, that the press release was offensive and that the public nature of the press release called into question the reputation of the bar as a whole. We further note that respondent had received a public reprimand for an incident that occurred around the same time as the incident at issue in this case.

As mitigating factors, we acknowledge, as did the referee, that respondent has indicated that he regretted the wording of the press release and that he did not mean to call into question Zimmerman’s integrity and ethics. We further note, as did the referee, that other than a prior public reprimand, respondent has not received any other discipline.

Noteworthy that the discipline also cites a violation of the rule governing trial publicity.

The boyfriend was convicted. The conviction was recently affirmed by the Nebraska Supreme Court.

The Scottsbluff Star Herald reported on the crime. The same source has a link to its extensive coverage.

There may be a problem with the link. The case is State ex rel. Counsel for Discipline v. Bell Island. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2017/05/the-nebraska-supreme-court-on-july-22-2016-relator-filed-formal-charges-against-respondent-the-formal-charges-contain-one.html