A persistent retort to misconduct by prosecutors is that they suffer no consequences when they’re caught. For chief deputy prosecutor in LaPorte County, Indiana, Robert Neary, getting caught wasn’t the problem. He was honest enough to report himself to the bar for his misconduct.
Count 1. 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.”
As Payne and Taylor spoke, the cops and Neary sat in the war room and listened. They finally heard some good stuff.
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.
Bad, bad, bad. But this wasn’t the first time Neary had done this sort of thing, although with a different lawyer and defendant. Not exactly the same situation, but the same idea.
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.
Neary eventually reported his misconduct himself.
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.
It’s impossible to ignore the fact, and irony, of a prosecutor being told by a police chief of his duty to inform defense counsel of his misconduct. That Neary self-reported might include some component of regret, but appears more likely to be a pre-emptive effort in light of the likelihood that Payne would grieve him.
And the Indiana Supreme Court punished him for it.
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.
The court found little to discuss about whether he engaged in misconduct, and put their effort primarily into the question of suspension or disbarment.
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.
A prosecutor listening in on a lawyer and his client? How could this not be cause for disbarment? Sit down. I have something to tell you and it’s going to make you sad. Phone calls from defendants in jail are recorded. Those cameras in attorney/client meeting rooms are, you know, cameras. And let’s not even talk about the privacy of The Cloud.
Any defense lawyer who isn’t wary of his confidential communications with his client being overheard or recorded needs a good, hard smack. They have the technology. The only question is whether they can restrain themselves from using it. We are circumspect on a landline, except on a call from jail, where it doesn’t matter since we know it’s recorded. We never discuss anything of substance on a cellphone. We look carefully around the attorney rooms for microphones. It’s not paranoia, but caution.
But what makes the Indiana Supreme Court’s ruling noteworthy isn’t that it reveals that Robert Neary lacked the self-restraint to honor his prosecutorial obligation to not eavesdrop on confidential meetings, but that the court didn’t doubt the egregiousness of his conduct. Indeed, Neary’s attempt to minimize its significance, and hence his wrongfulness, worked against him and offset the mitigating argument of his self-reporting.
Most courts would have tried to rationalize why this sort of thing can happen, why prosecutorial misconduct may be unfortunate, and wrong, but in the grand scheme of safeguarding the public, a wrong with a heart of gold. Not Indiana.
Should Neary have been disbarred? That certainly would have “sent a message,” but so too does a four-year suspension without automatic readmission. He’s got no future in prosecution, and the likelihood of his getting a shot at the bench is slim. Whether he can figure out how to kill four years and then come back to the practice of law is unknown, but seems to be a pretty hard thing to accomplish.
And he will, in perpetuity, be tarred with this “egregious misconduct,” as well he should be. And most importantly, a prosecutor engaged in misconduct and didn’t get away with it. This time.