Prosecutor Admonished For Ex Parte Conversation

A District Attorney has been admonished for an ex parte communication by a panel of the Maine Grievance Commission. 

Kennebec Journal reported on the bar proceedings and noted that prosecutors are rarely the subject of bar discipline in Maine.

From the admonishment

Respondent DA Maeghan Maloney (DA Maloney) of Augusta, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, DA Maloney is subject to the Maine Bar Rules, and the Maine Rules of Professional Conduct (M.R.P.C.). DA Maloney was admitted to practice in 1998 and has no prior bar discipline.

According to the parties’ stipulations, the Grievance Commission finds the following relevant facts:

On January 1, 2013, Ms. Maloney was sworn in as District Attorney for Kennebec and Somerset Counties. At that time, the District Attorney’s office was prosecuting Eric Bard, who had been indicted on August 9, 2012, with multiple counts of serious criminal conduct. Throughout much of the proceedings, Bard had been represented by two defense counsel. During a June 12, 2014 hearing, one of those attorneys stated that DA Maloney (who was not present at the hearing) had engaged in improper conduct. DA Maloney was not present because an Assistant Attorney General was assigned to the case.

On June 23, 2014, DA Maloney, at the direction of the trial judge, appeared in the judge’s chambers. In addition to the trial judge, a court reporter and clerk were present. The trial judge questioned DA Maloney to determine whether she had engaged in misconduct, and DA Maloney responded to the questions.

The trial judge subsequently conducted jury selection on August 8, 2014. Neither DA Maloney nor one of Bard’s co-counsel were present. At that time, defense counsel who was present remarked that he understood that the judge had engaged in ex parte communications with DA Maloney regarding the case. The judge stated that he had met with DA Maloney to determine whether there had been an ethical breach and that, as a result of the meeting, he was satisfied that there had been no breach. He also stated that the communications he had with DA Maloney were not relevant to the case. Based upon the court’s response, defense counsel did not request a transcript of the June 23, 2014 chambers conference.

On August 27, 2014, Bard entered a conditional guilty plea. On July 24, 2015, the trial judge sentenced Bard, and he entered a judgment of conviction on July 28. Bard appealed to the Law Court. At the oral argument in September 2016, which included questions concerning the June 23, 2014 chambers conference, Bard’s co-counsel learned of that conference and the existence of a related transcript. After argument, defense counsel moved for production of that transcript. The Law Court then stayed the appeal to allow for further proceedings in the Superior Court. After obtaining the transcript, Bard moved for the trial judge’s recusal and to vacate the judgment of conviction. The trial judge recused himself, and a second trial judge denied Bard’s motion to vacate. Bard appealed to the Law Court.

In its decision dated March 15, 2018, the Law Court vacated all adjudicatory action taken after the June 23, 2014 chambers conference. State v. Bard, 2018 ME 38. The Court held that Bard’s decision not to request a copy of the chambers conference transcript at the August 8, 2014 jury selection proceeding was based “on the court’s assurances that the ex parte conference &lsqou;had absolutely nothing to do with the motion to dismiss’ and had ‘nothing to do with this case.’” Id. at ¶ 36. The Court specifically stated:

“As is now evident, the ex parte conversation at issue here did include a discussion (between the court and DA Maloney) of several areas of substance pertaining to the pending criminal case.” (Bard, 2018 ME 38, ¶ 48).

The panel understands that the chambers conference DA Maloney attended presented unique circumstances. The trial judge directed DA Maloney to appear and answer his questions. Nevertheless, DA Maloney, in response to the judge’s questions, did engage in communications regarding the pending prosecution of Bard. The panel accepts DA Maloney’s representation that she understood that she was required to answer the trial judge’s questions and that, because the conference was being recorded, a transcript would be made available to defense counsel if the trial judge deemed it appropriate. DA Maloney now recognizes and admits that she should have been more cautious in her communications with the trial judge.

 (Mike Frisch)