Bell: 3 things to know about ethics and the ‘heat of trial’

In the case, In the Matter of Gillian DePrez Keiffner, 2017 WL 3443081 at *3 (Ind. Aug. 11, 2017), the Indiana Supreme Court made reference to the “heat of trial.” It is hard to describe what the “heat of trial” is, but an attorney knows what it is when he or she is in it. The “heat of trial” is a place where the unplanned occurs, where things are simply out of an attorney’s control and for better or for worse, it is a place where judges and lawyers make mistakes.

In Keiffner, the Supreme Court had to decide whether mistakes made by an attorney in the “heat of trial” rose to the level of violations of the Indiana Rules of Professional Conduct. The hearing officer and the Supreme Court concluded that such mistakes did not constitute ethical breaches and the Supreme Court ultimately entered judgment in the attorney’s favor. Id. at *1.

The Keiffner matter involved a deputy prosecutor and the disciplinary charges arose out of her conduct in two trials in which the state of Indiana obtained convictions. Both convictions were appealed and the Court of Appeals found that the deputy prosecutor (the “Respondent”) committed “prosecutorial misconduct.” Id. In one instance, the Court of Appeals found that the Respondent’s co-counsel also committed misconduct. Only one of the defendants mentioned above was given a new trial.

Based on Court of Appeals’ findings, the Disciplinary Commission alleged violations of Rule 3.4(e) and Rule 8.4(d) of the Indiana Rules of Professional Conduct. Id. However, a hearing officer found that the commission had not met its burden of proving the Respondent violated the Rules of Professional Conduct and the Supreme Court agreed. Here are three things to know about ethics and the “heat of trial.”

1. Appellate error does not necessarily create a disciplinary violation.

In In the Matter of Keiffner, our Supreme Court relied heavily on its ruling in the Matter of Smith, 60 N.E.3d 1034 (Ind. 2016). In Smith, the court held that an appellate finding of misconduct did not necessarily constitute a violation of the Indiana Rules of Professional Conduct. Specifically, the Supreme Court noted that while “claims of prosecutorial misconduct and disciplinary allegations … share some similarities, the analyses are not exactly the same. A criminal appeal examines the propriety of the defendant’s conviction, not whether an attorney’s conduct merits professional discipline.” Id. at 1036. Furthermore, the Supreme Court held that it alone maintained “the exclusive province . . . to regulate professional legal activity.” Id.

2. The court can be hesitant to discipline an attorney’s “semi-spontaneous” statements at trial, but areas of caution were identified.

As any attorney who has tried a jury trial knows, not everything (and sometimes nothing) that happens at trial is scripted, planned or within the attorney’s control. As part of its decision in the Keiffner matter, the court noted that it was “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.” Matter of Gillian DePrez Keiffner 2017 WL 3443081 at *3

Nevertheless, using the Keiffner and Smith matters, the court identified areas of concern and ways attorneys can avoid scrutiny:

• Educate witnesses on orders in limine and how not to violate them;

• Train witnesses to testify to facts, answer your questions and not to vouch for the credibility of investigations;

• Take time to craft closing arguments. Avoid making arguments that are inaccurate, not supported by the record or that impugn the integrity of opposing counsel; and

• Finally, if you are a prosecutor, avoid arguments that invite convictions for any reason other than the defendant’s guilt.

3. An expanded record helps an attorney in a disciplinary matter.

Not all is as it may seem. The Smith matter noted that “disciplinary proceedings afford the opportunity for evidentiary development beyond the cold record available to the Court of Appeals in a criminal appeal.” Smith, 60 N.E.2d at 1036. For example, in the Smith matter, the former deputy prosecutor was alleged to have made inaccurate closing arguments by using the word “substantiated.” However, when the audio recording was obtained, it was determined that the word the deputy prosecutor actually used was “arrested.” Id. at 1037. (Oops). In addition, the Supreme Court also determined that the deputy prosecutor in Smith should not be disciplined when state witnesses violated an order in limine through no fault of the prosecutor. Id. at 1037.

In the Keiffner matter, the Respondent testified why she made her statements on the record. For example, in one instance, the Respondent testified that the comments at issue were made in reaction to comments made by others at trial. The hearing officer found this testimony to be “fully credible” and also found that the “Respondent’s activities, strategy and rationale for such to be entirely consistent with how a competent, experienced, ethical prosecutor should conduct the trial in a child molest case.” [See Matter of Keiffner, Hearing Officer’s Report, pg. 49 of 96, Feb. 10, 2017]. Finally, the hearing officer also found that “the statements at issue were of the kind that had never before been determined to constitute either ethical or prosecutorial misconduct under Indiana law.” Id. at pg. 83 of 96.

Conclusion

In the “heat of trial,” things “happen.” The Keiffner matter demonstrates that there is daylight between unethical behavior and mistakes and errors made in the heat of trial. With an expanded record, the Respondent in Keiffner was able to demonstrate why her conduct was not a violation of the Indiana Rules of Professional Conduct. If an attorney catches a mistake when it happens at trial, making a full record during trial may help alleviate future scrutiny.•

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• James Bell is an attorney with Paganelli Law Group who practices in criminal defense and also assists lawyers and judges with professional liability and legal ethics issues. He can be reached at [email protected]. The opinions expressed are those of the author.