Justices dismiss misconduct charge against White County deputy prosecutor

The Indiana Supreme Court has entered judgment in favor of a White County attorney after finding that the state Supreme Court Disciplinary Commission failed to prove that the attorney had violated a rule of professional conduct, resulting in a man’s erroneous convictions of child molestation.

In 2011 and 2013, Terry Lee Smith, a White County deputy prosecutor, represented the state during the trial and retrial of Ryan Bean, who was convicted both times on child molestation charges but whose convictions were twice overturned by the Indiana Court of Appeals. When his conviction was overturned the second time, the Court of Appeals ruled that improper vouching and prosecutorial misconduct had cumulatively amounted to fundamental error.

The Indiana Supreme Court Disciplinary Commission subsequently charged Smith with violating Indiana Rule of Professional Conduct 8.4(d) by engaging in conduct that was prejudicial to the administration of justice during the 2013 retrial. The commission alleged three instances of misconduct, according to the Supreme Court’s Tuesday ruling – that Smith had improperly elicited testimony from the county sheriff about Bean’s confession, that he had elicited improper vouching, and that he had made statements during closing arguments that were inaccurate and that placed undue emphasis on the improper vouching testimony.

However, when the hearing officer filed a report with the Indiana Supreme Court in April 2016, he concluded that the commission had not met its burden of proving that Lee had violated the professional conduct rule.

The commission then petitioned the high court to review the hearing officer’s report, arguing that the retrial, referred to as Bean II, should be given preclusive effect in the disciplinary proceeding. The question surrounding Smith’s alleged misconduct is the same in both proceedings, the commission argued, so the Court of Appeals’ conclusions should be treated as “conclusively established.”

But in its Tuesday per curiam opinion, the justices agreed with the hearing officer that the commission failed to meet its burden of proof.

In regard to the improper elicitation of testimony claims, the high court noted that Smith had testified the he instructed Sheriff Shafer prior to his trial testimony not to mention the police interview. The commission argued that asking Shafer about his investigation “necessarily included the interview assuming Sheriff Shafer was going to answer the question completely and truthfully,” but the justices disagreed. Instead, they wrote that the commission’s argument “rests on the untenable proposition that (Smith)…should have anticipated that Sheriff Shafer would violate that order in responding to generally-worded questions about his investigation.”

In the commission’s second charge against Smith, it focused on the testimony of Darrel Noonkester, an investigator for the Indiana Department of Child Services who testified that he and the agency “substantiated” the allegations of child molestation against Bean. That term of art was not included in the trial court’s order in limine, and Smith testified that he had tried to craft his questions to align with the order. The hearing officer credited Smith’s testimony, and the Indiana Supreme Court once again agreed that the commission had failed to prove that Smith had elicited improper vouching testimony

Finally, in regard to the third claim regarding Smith’s closing arguments, the Supreme Court noted that there was a material difference between the Court of Appeals’ holding related to his closing arguments in Bean II and the audio recording of Smith’s actual words. The Supreme Court held that Smith accurately described Shafer’s testimony during his closing arguments by pointing out that he had arrested Bean, not that he had substantiated the claims against him.

The case is In the matter of: Terry Lee Smith, 91S00-1603-DI-136.

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