Former Deputy Prosecutor Won’t Be Disciplined For Misconduct
IL for www.theindianalawyer.com
A former Marion County deputy prosecutor will not be discipline for alleged misconduct that led to the reversal of a child molesting conviction, though the Indiana Supreme Court noted in a Friday opinionthat the lack of disciplinary action was not an endorsement of the attorney’s conduct.
While working as a Marion County deputy prosecuting attorney in 2012, Indianapolis attorney Gillian DePrez Keiffner represented the state during the trial of Bruce Ryan, who was charged with sexual misconduct with a minor. She also represented the state in the 2013 child molesting and sexual misconduct trial against Brandon Brummett.
Both men were convicted, but their convictions were overturned in the Indiana Court of Appeals on the grounds of prosecutorial misconduct. The Indiana Supreme Court affirmed that decision for Brummett, finding Keiffner’s conduct rose to the level of fundamental error, but reached the opposite conclusion for Ryan. Her challenged conduct related to comments she made during closing arguments at both trials.
Keiffner had previously been forced to resign her role as deputy prosecutor after she received a public reprimand for a drunken driving arrest in 2009. As part of a resolution of the case of Matter of DePrez, 928 N.E.2d 198 (Ind. 2010), Keiffner agreed to resign her position, and in a footnote in a Friday opinion, the Indiana Supreme Court wrote it was unclear how she came to resume her prosecutorial role.
After Ryan and Brummett’s appeals, the Indiana Supreme Court Disciplinary Commission charged Keiffner with violation of Indiana Professional Conduct Rule 3.4(e) — which prohibits a lawyer from alluding to irrelevant or unsupported matter during a trial, asserting personal knowledge of facts or stating a personal opinion as to justness, credibility or culpability — in regard to both trials. The commission also charged her with a violation of Rule 8.4(d), a prohibition against prejudicial conduct, in Brummett’s trial.
The commission’s prosecution of the instant disciplinary action was structured around the notion that a criminal appellate finding of prosecutorial misconduct is dispositive of the question of similar misconduct in a disciplinary proceeding. But in a Friday opinion, the Indiana Supreme Court wrote in a per curiam opinion that such a notion was previously rejected in Matter of Smith, 60 N.E.3d 1034 (Ind. 2016).
Specifically, Smith held that while “a written trial transcript ‘presents only a small part of the whole picture,’” a disciplinary proceeding allows the parties to “offer additional evidence that paints a more complete picture.”
“Similar to the respondent in Smith, Respondent has attempted in this disciplinary proceeding to provide additional contexts for the events at issue,” the high court wrote. “And like Smith, the hearing officer ultimately found Respondent’s testimony credible.”
Thus, a majority of the court accepted the hearing officer’s report and determined that the allegations against Keiffner were not proven by clear and convincing evidence. However, the opinion did not provide a specific tally of votes among the justices.
“We caution that by no means should our opinion today be read as an endorsement of Respondent’s actions,” the court wrote. “…Respondent’s conduct in these cases caused one conviction to be lost, placed another at unnecessary risk of being lost, and placed herself at risk of professional discipline. Prosecutors would be well-advises to exercise better care in crafting their presentations to juries than Respondent did here.”
Thus, the court entered judgment in favor of Keiffner in In the Matter Of: Gillian DePrez Keiffner, 49S00-1509-DI-522.