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In re Smith

Supreme Court of Indiana

October 25, 2016

In the Matter of: Terry Lee Smith, Respondent.

         Attorney Discipline Action Hearing Officer Robert C. Reiling, Jr.

          Respondent Pro Se Terry Lee Smith Reynolds, Indiana

          Attorneys for the Indiana Supreme Court Disciplinary Commission G. Michael Witte, Executive Secretary Seth T. Pruden, Staff Attorney Indianapolis, Indiana

          Per Curiam

         The Indiana Supreme Court Disciplinary Commission filed a "Verified Complaint for Disciplinary Action" against Respondent Terry Lee Smith, charging him with attorney misconduct based on actions taken while prosecuting a defendant's retrial. Respondent's 1977 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

         This matter is now before the Court on the report of the hearing officer appointed by this Court to hear evidence on the verified complaint and on the post-hearing briefing by the parties. Based on the record before us, we conclude that Respondent did not engage in attorney misconduct as charged and therefore enter judgment in Respondent's favor.

         Procedural Background and Facts

         At relevant times, Respondent served as a deputy prosecuting attorney in White County. In 2011, Respondent represented the State during the trial of Ryan Bean on child molestation charges. Bean was convicted and appealed. The Court of Appeals reversed and remanded for a new trial, holding Bean's confession to police was obtained in violation of his Fifth Amendment rights and should not have been admitted into evidence. Bean v. State, 973 N.E.2d 35 (Ind.Ct.App. 2012), trans. denied.

         Respondent again represented the State during Bean's retrial in 2013. Respondent's actions during that retrial, which we examine below, provide the basis of the allegations in this disciplinary proceeding. Bean was convicted following retrial, appealed, and again had his conviction reversed, this time upon the Court of Appeals' conclusion that improper vouching and prosecutorial misconduct cumulatively amounted to fundamental error. Bean v. State, 15 N.E.3d 12 (Ind.Ct.App. 2014) ("Bean II"), trans. denied. Bean eventually pled guilty to lesser charges.

         The Commission charged Respondent with violating Indiana Professional Conduct Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice during Bean's retrial. Following a hearing, the hearing officer filed his report to this Court on April 28, 2016, concluding that the Commission had not met its burden of proving that Respondent violated Rule 8.4(d) as charged.

         Discussion

         The Commission has petitioned this Court to review the hearing officer's findings and conclusions. The Commission carries the burden of proof to demonstrate attorney misconduct by clear and convincing evidence. See Ind. Admission and Discipline Rule 23(14)(i). While the review process in disciplinary cases involves a de novo examination of all matters presented to the Court, the hearing officer's findings nevertheless receive emphasis due to the unique opportunity for direct observation of witnesses. See Matter of Brizzi, 962 N.E.2d 1240, 1244 (Ind. 2012).

         We first address the Commission's threshold argument that Bean II should be given preclusive effect in this disciplinary proceeding. The Commission concedes "that res judicata does not technically apply when there is no exact privity of parties." (Pet. for Review at 13). Nevertheless, the Commission argues that the underlying question of Respondent's misconduct is the same in both proceedings, and therefore the Court of Appeals' conclusions in this regard should now be treated as "conclusively established." (Id. at 14).

         We agree with the hearing officer's conclusion that Bean II is not dispositive of this disciplinary matter. "It is the exclusive province of this Court to regulate professional legal activity." Matter of Mitthower, 693 N.E.2d 555, 558 (Ind. 1998). While appellate claims of prosecutorial misconduct and disciplinary allegations of Rule 8.4(d) violations may share some similarities, the analyses are not exactly the same, nor are the parties and interests at stake in the proceedings the same. A criminal appeal examines the propriety of a defendant's conviction, not whether an attorney's conduct merits professional discipline. Respondent was not a party to the criminal appeal and did not have an opportunity prior to the instant proceedings to defend his own professional conduct. Moreover, disciplinary proceedings afford the opportunity for evidentiary development beyond the cold record available to the Court of Appeals in a criminal appeal. We have previously recognized that a written ...


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