Attorney's Impersonation Conviction Overturned
Thursday, May 24, 2007
Maryland's second-highest court recently overturned the conviction of a Rockville defense attorney who was found guilty of impersonating a Montgomery County sergeant to intimidate a state witness.
In an opinion handed down May 4, the Court of Special Appeals reversed Patrick J. Smith's conviction on charges of impersonating a police officer and intimidating a witness, saying his right to a speedy trial was violated.
The case arose from a February 2004 incident. The night before a trial in which Smith was to represent a man charged with assault, the attorney left a message on the answering machine of the state's star witness saying he was a Montgomery sergeant who had a warrant for the witness's arrest. There was no warrant on file, and the call appeared to be an attempt to keep the witness from testifying.
After listening to the message, the witness called Assistant State's Attorney Stephen H. Chaikin, the prosecutor handling the case, who listened to the recording and identified Smith's voice. Smith initially denied leaving the message but later admitted doing so during his trial.
After Chaikin confronted Smith, the defense attorney said he had "gotten too close to the case" and asked the prosecutor whether the matter could be handled "in house," according to a summary of the facts in the opinion.
Smith was arrested in February 2004 and tried in April 2005. Defendants have a constitutional right to a prompt trial, barring compelling reasons.
In Smith's case, the trial was initially delayed because the first set of charges were dropped after the prosecutor failed to follow proper procedures and later because the judge had a scheduling conflict. In his appeal, Smith argued that the delay had been prejudicial.
The case was prosecuted by Frederick State's Attorney Charlie Smith, who at the time was a deputy state's attorney. Montgomery prosecutors handed the case to the neighboring jurisdiction because it arose from a Montgomery trial, which posed a potential conflict of interest.
The state attorney general's office, which handles criminal appeals, might ask the state's highest court to review the case, said Kathryn Grill Graeff, chief of the agency's Criminal Appeals Division.
Smith's lawyer, Bruce Marcus, said Smith was pleased with the court's ruling.
"Mr. Smith is a highly respected member of the bar," Marcus said. "He values and cherishes his license to practice law and was gratified by the ruling of the court."
Smith's law license in the District was suspended as a result of the conviction, and the Board of Professional Responsibility in December 2005 recommended that he be disbarred.
The new opinion probably will lead the D.C. Office of Bar Counsel to take a fresh look at the case, said Wallace E. Shipp Jr. of the counsel.
The Maryland Commission on Judicial Disabilities has not taken any public action against Smith, who continues to practice in Maryland. Melvin Hirshman, an attorney with the commission, said an overturned conviction does not necessarily shield a lawyer from disciplinary action.
"It's possible to try a disciplinary case despite the fact that there isn't a conviction," he said. "It's the conduct, not necessarily the conviction," that the commission takes into account.
The 19-page opinion includes a footnote stating that the court doesn't "condone Smith's conduct" and doesn't "take issue with the underlying facts found in this case."
Chaikin said he was disappointed by the opinion and concerned that Smith continues to practice law.
"In 13 years of practicing law, I've never heard or seen an attorney do something like this," he said. "There's a feeling of concern because we don't want the citizens to think that an attorney can conduct himself this way and continue to practice."