MACHIAS, Maine — The Washington County district attorney has filed a motion to prevent attorney Don Brown of Brewer from representing former Sheriff Donnie Smith in a felony theft case because Brown could become a witness.
“The state is concerned that the defendant may decide to claim some type of immunity or other defense based on his status as a government official [sheriff of Washington County] during the time period of the alleged criminal conduct in this matter,” reads the motion filed by District Attorney Matt Foster. “To the extent that Mr. Smith may claim some defense that applies because he acted in his capacity as sheriff, or pursuant to the advice of counsel [attorney Brown], then it is likely attorney Brown could become a key witness in this case due to Mr. Brown’s former representation of the defendant in his capacity as sheriff.”
The motion cites a regulation that reads: “A lawyer shall not act as advocate at a tribunal in which the lawyer is likely to be a necessary witness.”
Smith was indicted May 4 on charges of theft by unauthorized taking and theft by misapplication of funds, both Class B crimes, as well as misuse of entrusted property, a Class D crime. A Class B crime is punishable by up to 10 years in prison and a $20,000 fine. A Class D crime is punishable by up to a year in prison and a $2,000 fine. Smith pleaded not guilty June 22 to the charges, which were filed in connection with alleged illegal expenditures from an inmate benefit account at the 48-bed county jail.
“Mr. Brown acted not only as personal counsel for the defendant in other civil matters but he appeared before the [Washington] County Commissioners and before other tribunals of this state as counsel representing Mr. Smith in his capacity as sheriff of Washington County and was paid for his services to the sheriff by the treasurer of Washington County,” the motion reads.
The motion is accompanied by a Washington County expenditure voucher noting the county paid Brown $4,500 May 31, 2013, for legal fees incurred representing Smith in January 2013.
Brown represented the sheriff during a disciplinary hearing conducted by the commissioners after Smith suspended and recommended termination of Karina Richardson, the jail clerk, and Robert Gross, the jail administrator. Gross resigned not long after being suspended. The commissioners agreed with Smith and discharged Richardson. She took her case to the state Board of Arbitration and Conciliation, which ruled in October 2014, that she should not have been terminated, but rather only suspended without pay for six months.
The county later settled its case with Richardson.
“The representation by attorney Brown of Mr. Smith personally and also in his capacity as sheriff of Washington County [during the disciplinary hearing] presents a conflict of interest that cannot be cured,” the motion states. “Mr. Smith, by hiring attorney Brown to represent him as sheriff basically retained Mr. Brown on behalf of the County of Washington and the County of Washington paid Mr. Brown’s fees for that representation.”
That proceeding, in which Richardson and Gross were suspected of misappropriating funds in the inmate benefit account, is “substantially similar” to the theft case against Smith in which he is charged with misappropriating $11,700 from that same account, Foster states in his motion.
Foster did not immediately return phone calls Friday.
Brown could not be reached for comment.
Court documents in the case against Smith indicate that the alleged thefts occurred over a six-year period between January 2007, just after Smith first took office as sheriff, and December 2012. Smith lost his re-election bid last fall to current Sheriff Barry Curtis. Smith’s last day in office was Dec. 31, 2014.
Use of funds from the inmate benefit account at the 48-bed Washington County Jail has been under scrutiny for years. Funds from the account, which contains revenue from jail commissary sales and fees from telephone service for inmates, are to be used to directly benefit inmates and not for a jail’s operating budget or other purposes, according to state Department of Corrections jail standards.
According to Foster, Smith is accused of misappropriating $11,700 from the county’s inmate benefit account by spending it on gifts for deputies, charitable donations, meals, flowers, uniforms and other items that did not benefit inmates.
In addition to the felony charges, Smith faces misdemeanor charges of reckless conduct and driving to endanger in connection with a Jan. 6 incident in Lubec with a woman he had previously accused of assaulting him. The trial will be moved to a Penobscot County in an effort to seat an impartial jury.
Smith has pleaded innocent to those charges, according to court documents.
Smith also reached a deal May 7 on two unrelated counts of harassment by telephone, for which a jury trial had been scheduled to begin May 8. Those charges stemmed from “offensively coarse and obscene” texts sent Jan. 1 to department employees, court documents say.
According to the terms of the deal in the harassment case, if Smith stays out of trouble for a year, the charges will be dropped, Foster has said. Smith also paid a $250 fee in that case.