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
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,
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.
Background and Facts
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.
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
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.
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).
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).
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 ...