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Commonwealth of Massachusetts

NO. BD-2009-041

IN RE: JOSEPH BERNARD

S.J.C. Order of Term Suspension entered by Justice Cordy on June 2, 2009, with an effective date of July 2, 2009.1
(S.J.C. Judgment of Reinstatement entered by Justice Cordy on January 14, 2010.)

SUMMARY2

The respondent was admitted to the bar in 1991. For the first three years after his admission, the respondent was an assistant district attorney. Thereafter, he was in private practice, handling primarily criminal defense and personal injury cases.

In 2001, the respondent entered an appearance on behalf of an adult client, who had been arrested along with a minor and charged with drug possession. Shortly after entering his appearance, the respondent was given a copy of a police report which stated the following: the police had been advised by a confidential informant that the adult and minor were selling drugs at a certain location; the officers went to a secure location to observe them and saw a third person approach and a drug transaction take place; the officers then went to where the adult and minor were, saw the adult give the juvenile a shiny metal object, searched them, found drugs, and arrested them. The respondent was never given any other police report. The respondent took appropriate action to prepare the case.

In August 2001, the minorís attorney filed a motion to suppress in juvenile court, challenging the warrantless search at the time of the arrest, based on lack of probable cause. At the hearing on the motion to suppress, both of the arresting officers testified that they did not observe any kind of drug transaction prior to the search and arrest of the adult and minor. One of them also testified that the police report in this case, which omitted all reference to observation of a drug transaction from a secure location, was complete and correct. In November 2001, the minorís motion to suppress was allowed on the ground that the officersí testimony failed to corroborate the confidential informantís information. Shortly thereafter, the minorís case was nolle prossed.

In December 2001, a grand jury was convened to hear testimony concerning the charges against the adult. One of the arresting officers read a police report to the grand jury, which was the same as the report that had previously been provided to the respondent and which included a description of the drug transaction with a third party allegedly witnessed by the police. Indictments were returned against the adult.

By mid-December 2001, the respondent knew that the motion to suppress had been allowed in the minorís case and he spoke with the minorís attorney about the suppression hearing. In April 2002, the respondent filed a motion to suppress in the adultís case. Prior to the hearing on the motion, the respondent reviewed a copy of the grand jury transcript, a copy of the police report which had been read to the grand jury, and a copy of the transcript of the minorís suppression hearing. The respondent failed to recognize the inconsistencies in the testimony of the police officers in the two cases. As a result, he did not appreciate the fact that both officers testified at the minorís hearing that they did not observe any drug transaction prior to their search, yet in the adultís case, one of the officerís read a police report to the grand jury detailing a drug transaction allegedly witnessed by both officers.

At the suppression hearing in the adultís case, the officers both testified that they had witnessed a drug transaction prior to the search and arrest. The respondent did not confront or cross-examine either officer regarding their prior inconsistent statements. At the conclusion of the suppression hearing, the respondent filed a memorandum that he had not previously reviewed in support of the motion. This memorandum had been provided by the minorís attorney and the only changes that had been made were to names and pronouns and these had been made by an assistant in the respondentís office. The memorandum contained facts from the juvenile court case and the police report in that case, which did not include the observation of a drug transaction with a third party prior to the arrests. The respondent admitted that, had he read the memorandum, it would have been evident that the minorís attorney had a different police report that the respondent had. The motion to suppress in the adultís case was denied based on the credible testimony of the police officers that they had observed a drug transaction prior to the search.

The adult was tried in September 2002. One of the arresting officers testified, and he again stated that they had observed a drug transaction prior to searching the defendant. The respondent, failing to recognize any inconsistencies, did not cross-examine the police officer about this testimony. The adult was convicted and sentenced to prison for five years.

After reviewing the respondentís file, appellate counsel noted the inconsistencies in the testimony of the police officers and contacted the respondent. This was the first time the respondent became aware of the inconsistencies in the officersí testimony. Appellate counsel filed a motion for a new trial alleging that the client had received ineffective assistance of counsel based primarily on the respondentís failure to recognize the prior inconsistent statements and resultant failure to cross-examine the officers on these inconsistencies.

In November 2004, the assistant district attorney disclosed to successor counsel the police report from the minorís file, which had never been produced to the respondent, and which made no reference to a secure location and observation of a drug transaction. The assistant district attorney assented to the motion for a new trial and the client was released after more than two years of incarceration.

After hearing, in August 2005, the original trial judge dismissed the two most serious indictments based on prosecutorial misconduct, namely knowingly proceeding with false testimony and omitting inconsistent, exculpatory testimony before the grand jury. The Commonwealth filed a motion for reconsideration and requested an evidentiary hearing at which the Commonwealth claimed that there was no false testimony, both police reports were created on the date of the arrest, the juvenile police report was a draft which was filed in that case by mistake, and the testimony at the juvenile suppression hearing was not inconsistent with that in the adultís hearing because it related to a different time period. The motion for reconsideration was denied.

The hearing committee concluded that the respondentís failure to adequately prepare his clientís case and provide competent representation and his failure to act with reasonable diligence and zealously represent his client violated Mass. R. Prof. C. 1.1, 1.3, and 8.4(d) and (h).

In aggravation, the committee found that the respondent had previously received an admonition for improper comments during opening argument and improper cross-examination as a prosecutor, and that the respondent was an experienced criminal attorney. A majority of the committee found that the clientís incarceration for over two years was the result of the respondentís misconduct.

A majority of the hearing committee recommended that the respondent be suspended for six months; the dissent recommended a public reprimand. The parties did not appeal, the Board of Bar Overseers adopted the findings of fact, conclusions of law and recommendation of the majority of the hearing committee, and the single justice entered an order, July 2, 2009, suspending the respondent for six months.


FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.



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