In the Matter of: Gillian DePrez Keiffner
2017 Ind. LEXIS 592
| Ind. | 2017Background
- Respondent Gillian DePrez Keiffner, a deputy prosecuting attorney admitted in 2007, prosecuted two criminal trials: State v. Ryan (2012) and State v. Brummett (2013).
- Appellate courts found prosecutorial misconduct in both trials; Brummett’s convictions were reversed for cumulative error, Ryan’s convictions were affirmed on review.
- The Disciplinary Commission charged Keiffner with violating Indiana Professional Conduct Rule 3.4(e) (improper trial statements) in both cases and Rule 8.4(d) (conduct prejudicial to the administration of justice) in Brummett.
- A hearing officer conducted evidentiary proceedings, heard Keiffner’s testimony, and concluded the Commission failed to prove misconduct.
- The Indiana Supreme Court reviewed the record de novo but gave weight to the hearing officer’s credibility findings and ultimately held the Commission did not prove misconduct by clear and convincing evidence.
- The Court admonished the prosecutor’s trial conduct as improper and risky, but declined to impose discipline, discharging the hearing officer.
Issues
| Issue | Commission's Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether Keiffner violated Rule 3.4(e) by making improper statements in closing argument (Ryan & Brummett) | Closing remarks included improper allusions, personal opinions, or assertions unsupported by evidence — warrant discipline | Closing statements should be viewed in context; testimony and extrinsic evidence explain or mitigate the remarks | Not proven: Commission failed to meet clear-and-convincing standard; no discipline imposed |
| Whether Keiffner violated Rule 8.4(d) by engaging in conduct prejudicial to administration of justice (Brummett) | Cumulative improper argumentation contributed to reversible error and demonstrates professional misconduct | Appellate reversal does not automatically equate to professional misconduct; evidentiary context and credibility findings negate disciplinary culpability | Not proven: Court declines to equate appellate reversal with disciplinary violation absent clear-and-convincing proof |
| Whether an appellate finding of prosecutorial misconduct is dispositive in disciplinary proceedings | Appellate reversal shows misconduct and supports discipline | Disciplinary process is distinct; more evidence and opportunity to defend may alter conclusions | Held: Not dispositive; disciplinary inquiry is independent and may consider extrinsic evidence and witness credibility |
| Role of hearing officer credibility findings in de novo review | N/A (Commission bears burden) | Hearing officer’s direct observation of witness testimony merits deference | Held: Court gives emphasis to hearing officer’s findings and accepts credibility determinations in reaching judgment |
Key Cases Cited
- Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014) (appellate reversal for cumulative prosecutorial error)
- Brummett v. State, 21 N.E.3d 840 (Ind. 2015) (affirming on rehearing)
- Brummett v. State, 24 N.E.3d 965 (Ind. 2015) (summarily affirming on transfer in relevant part)
- Ryan v. State, 9 N.E.3d 663 (Ind. 2014) (affirming convictions despite some misconduct)
- Matter of Smith, 60 N.E.3d 1034 (Ind. 2016) (disciplinary proceeding: appellate misconduct findings not dispositive; extrinsic evidence may negate discipline)
- Matter of Mitthower, 693 N.E.2d 555 (Ind. 1998) (Court’s exclusive province to regulate legal conduct)
- Matter of Brizzi, 962 N.E.2d 1240 (Ind. 2012) (deference to hearing officer’s findings due to live witness observation)
- Whiting v. State, 969 N.E.2d 24 (Ind. 2012) (trial transcript is only part of the whole picture)
- Matter of DePrez, 928 N.E.2d 198 (Ind. 2010) (prior disciplinary proceeding involving Respondent)