Cell Phone Video Shown In Lockup Draws Reprimand

The full Massachusetts Supreme Judicial Court affirmed a public reprimand imposed by a single justice of a criminal defense attorney for conduct in the Cheslea court lockup

On November 7, 2019, the respondent was working in the Chelsea District Court as an assigned duty attorney. At about 10:14 A.M., a detainee, a court officer, the respondent, and a probation officer went together into the basement lockup area. The detainee entered the rear cell on the right. After locking the detainee in the cell, the court officer left the area. The front two cells, on the right and left, were already occupied by detainees. The probation officer went to speak with the detainee in the rear cell on the right. For some minutes, the respondent stood behind her, listening, asking at least one question, and occasionally making notes on a pad of paper. During this time, the two detainees in the front cells appeared to be conversing with each other, and the probation officer observed the respondent “sort of bantering back and forth with the individuals in the first two cells.”

The respondent briefly exited the lockup area. When he returned shortly thereafter, he appeared to have a quick verbal exchange with the detainee in the front right cell. The respondent took his cell phone out, found an image, moved to the front right cell, and showed it to the detainee for several seconds. The respondent had his back to the probation officer and was several feet away from her, but his cell phone was visible to her. She can be seen on the video looking at his cell phone for several seconds.

The probation officer testified it was a video of a nude woman; Respondent claimed it was a Melania Trump meme

The hearing committee found that the image, or meme, that the respondent showed to the detainee depicted a scantily clad blond woman, wearing a bustier, thong underwear, and an off-the-shoulder fur jacket, descending a flight of stairs. Its caption stated, “Immigrants are bad,” and below the picture are the words, “Unless they have nice legs, screw you for money, and do naked photo shoots with other women.” The respondent showed this image to two of the detainees in the lockup area, moving around the area and continuing to talk to at least one of the detainees. The probation officer testified that the respondent said, “That is nineteen,” which she believed referred to the age of the woman in the photograph, and “that’s why you need to get out of here.” For his part, the respondent admitted showing the image to the detainee. His version of the conversation was that the detainee said, “Girls like that like guys like you in suits,” and he replied, “So get out of there, get yourself a job, get yourself a suit, and maybe you can get a girl like that,” and they laughed together.

The probation officer interacted with Respondent

The probation officer testified that she felt very uncomfortable and did not know how to address the situation, but she wanted to say something. As she left the area, she glared at the respondent and said, “I believe you might want to be a little more discreet next time, that was disgusting and inappropriate.” The respondent, standing toward the rear of the lockup area, appeared to say something in response. He covered his mouth with his hand and made a face, feigning shame or embarrassment. He eventually moved to the front of the lockup area, bantering briefly with the detainees as he passed them. As he left, he made a gesture with his left hand mimicking a form of male masturbation. The probation officer had left the area by this time and did not see this gesture.

Later that day, the probation officer returned to the lockup area and heard snickering between two detainees who had been present during the incident. She stated that the detainees were laughing and asking if she was married, comments that she felt stemmed from the respondent’s showing the image to them. She acknowledged that she was used to similar comments from detainees on a daily basis, but nonetheless, she believed that these comments were related to the respondent’s actions.

The probation officer reported the incident

Based on this conduct, a majority of the hearing committee found that the respondent violated Mass. R. Prof. C. 8.4 (h). The hearing committee also found one factor in aggravation (the respondent’s long experience as an attorney) and none in mitigation. A majority of the board agreed as to the violation and as to mitigation and aggravation. The single justice, after considering all the circumstances, imposed a public reprimand.

The court

The record supports the single justice’s description of the misconduct in this case: having “introduced [a] sexually suggestive image[] into a courthouse lock-up to potential clients” while in the presence of a probation officer, the respondent then “openly belittled” the officer “with a mock apology and obscene hand gesture” when she objected. By displaying the image to the detainees and then crudely dismissing her objection in front of them, he engaged in disrespectful, demeaning conduct toward an employee of the judiciary of a kind plainly inviting disrespect toward her from the detainees as well, thereby interfering with her ability to do her job. In these circumstances, imposing a public reprimand was not “markedly disparate” from a comparable sanction.

The court the conduct was not protected by the First Amendment.