Argued: November 10, 2014
Circuit Court for Baltimore County Case No. 13C13004267AG
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
State law requires that law enforcement authorities provide certain notices to victims and, in the case of a child victim, to the representative of the victim. Among other things, this requirement allows those specially affected by the criminal justice system to know its workings and perhaps participate in them. In particular, it provides an opportunity for the victim, or the victim's representative, to be heard at critical junctures in the case, such as sentencing, when the victim's perspective may be significant to the court's decision. This is an important responsibility of a prosecutor who, as the representative of the State, has a duty to ensure that "justice shall be done."
This attorney disciplinary proceeding arises out of a criminal prosecution involving an alleged incident of child sexual abuse. Respondent Bruce Michael Smith, at the time an Assistant State's Attorney assigned to the Child Advocacy Center in Harford County, was the prosecutor. In that capacity, he was responsible for notifying the 10-year-old victim and her foster mother of their rights under State law, preparing them for the trial, and informing them of critical proceedings in the case. Mr. Smith concedes that he was woefully deficient in carrying out that responsibility with the result that neither the victim nor her foster mother was aware of the prosecution of the alleged assailant, they were not able to participate in sentencing following the defendant's Alford plea, and they were not aware of the conditions of the defendant's later release from custody that forbade any contact with the victim. Mr. Smith also concedes that his failure to communicate with the victim's foster mother resulted in his giving incorrect information to the Circuit Court, which caused that court to postpone the original trial date.
We conclude that Mr. Smith failed to act with the reasonable diligence expected of a member of the bar and that his misconduct prejudiced the administration of justice. He is suspended indefinitely from the practice of law, with the right to re-apply no sooner than 60 days from the date that his suspension begins.
A. Legal Context - Child Victims and Victim Notification
1. Victim Notification Requirements
The Maryland Constitution confers on victims of crimes the right to be treated with "dignity, respect, and sensitivity" by agents of the State and to be notified and to participate in criminal proceedings, as may be permitted by implementing legislation. Maryland Declaration of Rights, Article 47. The General Assembly has implemented this "strong public policy" by enacting several statutes that create "a class of specific, but narrow, rights for victims." Hoile v. State, 404 Md. 591, 605, 948 A.2d 30 (2008). In particular, the Legislature has set forth certain guidelines for the treatment and notification of a victim. Maryland Code, Criminal Procedure Article ("CP"), §11-1002(b). In addition, it has required prosecuting attorneys, law enforcement officers, and certain judicial officials to notify victims of those guidelines. CP §11-104. When the victim is a minor or incompetent person, a "victim's representative" – defined as a close relative or guardian of the victim – has similar rights under these statutes.
Under the statutory guidelines, victims are to be provided with certain services, amenities, information and notices, and opportunities to participate in the criminal process.Pertinent to this case, a victim and a victim's representative, on written request, "should be kept reasonably informed by the police or the State's Attorney of the arrest of a suspect and the closing of the case, and should be told which office to contact for information about the case." CP §11-1002(b)(8). If the alleged crime is a "crime of violence, " such as sexual abuse of a minor in certain circumstances,  the victim and victim's representative should be notified in particular of specified stages of the criminal case, including trial and disposition. CP §11-1002(b)(10). In addition, on request of the State's Attorney and in the discretion of the trial court, the victim and victim's representative may submit a victim impact statement and address the court at sentencing. CP §11-1002(b)(11). The victim and victim's representative also have certain rights as to notice when the defendant will be released from custody. CP §11-1002(b)(14)-(16).
To ensure that victims are aware of their rights, a law enforcement officer or District Court commissioner is to provide the victim or victim's representative with a pamphlet describing those rights on first contact. CP §11-104(b). Once charges have been filed and made public, the prosecutor is to provide the victim or victim's representative promptly with a copy of the pamphlet and a notification request form. CP §11-104(c). The prosecutor is to certify compliance with that requirement with the clerk of the court. Id. If the victim or victim's representative completes and files the notification request form, the prosecutor is, to the extent practicable, to give the victim or victim's representative prior notice of each court proceeding, of the terms of any plea agreement, and of the right to submit a victim impact statement in connection with sentencing. CP §11-104(e). In addition, that victim or victim's representative "has the right to attend any proceeding in which the right to appear has been granted to a defendant." CP §11-102(a).
2. Child Advocacy Centers
To address what it found to be a lack of "necessary counseling and follow-up services" for sexual assault victims, the General Assembly directed the Governor's Office of Crime Control and Prevention ("GOCCP") to establish sexual assault crisis programs in the State, including child advocacy centers. CP §11-923. The State has designated 21 child advocacy centers throughout the State to provide a "coordinated multi-disciplinary approach to the problem of child abuse." Report of GOCCP on Child Advocacy Centers (January 1, 2015) at 1, available at <www.goccp.maryland.gov/victim/documents/annual-reports/CACS-2014.pdf>. The centers are to provide "safe, child friendly environments for forensic interviews and medical evaluations of the alleged child victim and offer continued support to the child." Id. The centers are to foster collaboration and "reduce existing gaps in services." Id. Pertinent to this case, the Harford County Child Advocacy Center ("Center") was established in 1993 and includes on its staff forensic interviewers, therapists, a pediatrician, local, county, and State law enforcement officers, and Assistant State's Attorneys. See <http://harfordcac.org/>.
B. Procedural Context
On March 15, 2013, the Attorney Grievance Commission ("Commission"), through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action alleging that Bruce Michael Smith violated various provisions of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") in connection with a child sexual abuse case that he prosecuted while employed by the Harford County State's Attorney's Office and assigned to the Center. In particular, the Commission charged Mr. Smith with violating MLRPC 1.3 (diligence), 3.3 (candor toward a tribunal), and 8.4(a), (c), and (d) (misconduct). Pursuant to Maryland Rule 16-752(a), this Court assigned this disciplinary proceeding to Judge Ruth Ann Jakubowski of the Circuit Court for Baltimore County,  to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law.
The hearing judge conducted an evidentiary hearing during October 2013, at which three witnesses, including Mr. Smith, testified, and at which the parties submitted a stipulation of facts as well as several documentary exhibits. The hearing judge filed a detailed Statement of Findings of Fact and Conclusions of Law in December 2013. Based on her findings of fact and analysis of the law, the hearing judge concluded that Mr. Smith had violated MLRPC 1.3, but had not violated MLRPC 3.3 or the various subsections of MLRPC 8.4.
The Commission did not except to the hearing judge's findings of fact, but did except to her conclusion that Mr. Smith did not commit all of the alleged violations; it offered alternative recommendations as to sanction, depending on how we dispose of those exceptions. Mr. Smith filed no exceptions or recommendation as to sanction.
C. Factual Context
Because the hearing judge's fact findings are uncontested, we treat them as established. Maryland Rule 16-759(b)(2)(A). The hearing judge's findings and the undisputed evidence in the record established the following facts.
Bar Admission and Employment
Mr. Smith was admitted to the Maryland Bar on December 16, 1999, and is also admitted to practice before the United States District Court for the District of Maryland. He is not a member of the bar of any other state or the District of Columbia.
After working for the Public Defender's Office, Mr. Smith was hired in 2007 as an Assistant State's Attorney for Harford County. He prosecuted cases in the District Court. He was also designated as one of the Assistant State's Attorneys assigned to the Center, which handled cases of child sexual assault and abuse, physical abuse and neglect, child pornography, and internet solicitation of children. As indicated earlier, the Center is also staffed by victim/witness advocates, a forensic interviewer, a family advocate, several detectives, a State trooper, and several child protective service workers.
State v. Head
In 2009, as part of his duties at the Center, Mr. Smith was assigned to prosecute the case of State v. Nathan Elwood Head, in which the defendant was charged with sexual abuse of a minor and a fourth degree sexual offense. According to documents in the State's Attorney's file, the 10-year old victim had been brought to the Center in February 2009 by her foster mother. There, a social worker (assisted in some respects by a detective) interviewed the child in some detail concerning an alleged assault by Mr. Head, the 19-year old former boyfriend of her foster sister. The interview was recorded and transcribed, and the matters described by the victim formed the basis of the charges against Mr. Head. The social worker also recorded an interview with the foster sister which was also transcribed and placed in the file.
Charges were filed against Mr. Head, who was in custody on an unrelated charge. Mr. Smith was assigned to prosecute the case. Toward the end of April 2009, Mr. Smith received notice from the Circuit Court for Harford County that the trial would begin on September 8, 2009.
On September 8, Mr. Smith appeared in the Circuit Court and requested a postponement because, according to Mr. Smith, a "necessary, critical witness, " the foster mother of the 10-year old victim, was not available. According to the transcript of that hearing, Mr. Smith stated that he believed the foster mother was in Connecticut for a medical emergency, but said, "I don't have my note with me." The trial judge heard from defense counsel, who said "it was [her] understanding that [they] weren't going to be reached for trial" that day, and did not object to the postponement. Finding good cause, the trial judge postponed the case until January 4, 2010 – well past the October 6, 2009 Hicks date.
On the new trial date, Mr. Smith again appeared at that proceeding as the prosecutor. The defendant entered an Alford plea to a fourth degree sexual offense and was found guilty. The court then proceeded to sentencing. Mr. Head's attorney and his grandfather addressed the court on his behalf, but neither the victim nor her foster mother was present and the State did not offer a victim impact statement. Mr. Head was sentenced to one year imprisonment, with all but 142 days suspended and with credit for time served, and three years' probation As a special condition of his probation, Mr. Head was not to have any contact with the victim. There is no indication in the record that anyone from the State's Attorney's Office or the Center had contacted the foster mother to advise her of the proceeding prior to the sentencing; nor did anyone subsequently advise her of the conditions of Mr. Head's probation that related to the victim.
Discovery of Non-Compliance with Victim-Related Responsibilities
More than two years later, in March 2012, when Mr. Head was about to be released from custody, the Division of Correction called the State's Attorney's Office to obtain victim contact information and the State's Attorney's office volunteered to notify the victim. When the State's Attorney's Office contacted the foster mother (who had adopted the child in the meantime) to tell her that Mr. Head was being released from custody, it was surprised to learn that she had no idea that the case had been prosecuted. She had not heard anything from the Center or the State's Attorney's Office since reporting her daughter's allegations of abuse and assault.
The State's Attorney himself then reviewed his office's file for State v. Head and the transcripts of the hearings in that case. The file contained the transcribed interviews with the victim and her sister, counsels' entries of appearance, discovery requests, and the State's responses to discovery – including a list of potential witnesses that included the victim, her foster mother, a detective, and a social worker. However, the note that ...