IN: Appearance of impropriety barred lawyer from being appointed special prosecutor, without proof of actual conflict
11/16/09
IN: Appearance of impropriety barred lawyer from being appointed special prosecutor, without proof of actual conflict
The appearance of impropriety required a writ of prohibition be granted in the appointment of a special prosecutor, just because it looked bad because of a family relationship. State ex rel. Kirtz v. Delaware County Circuit Court No. 5, 18S00-0909-OR-411 (November 13, 2009):
In sum, the evidence shows that Cummins was appointed to prosecute Kirtz just a few weeks after Kirtz testified against Cummins’s brother-in-law in a felony case in which Cummins had expressed interest and some support for his brother-in-law and other members of their family. The issue here is not whether Cummins has a grudge against Kirtz or some other motivation to prosecute him more harshly; nor is the issue whether Cummins can set aside any personal feelings or interests he may have, fairly prosecute Kirtz, and effectively represent the State. The issue is one of appearance: whether Cummins’s appointment created the appearance of impropriety. See Ind. Code § 33-39-1-6(d). The appointment created the appearance of impropriety because the totality of circumstances allowed an objective observer reasonably to question whether Cummins’s familial relationship with Alexander and Kirtz’s role in the case against Alexander would affect the prosecution of Kirtz, including Cummins’s exercise of broad discretion in that prosecution. See Jones v. State, 901 N.E.2d 655, 658 (Ind. Ct. App. 2009) (noting elected prosecutor properly sought appointment of special prosecutor to avoid appearance of impropriety where defendant had impersonated prosecutor and “[i]t reasonably could appear to a member of the public that [prosecutor] would be motivated to treat [defendant] more harshly than an “ordinary” theft or forgery suspect, even if [prosecutor] would not actually do so”).
At a minimum, the circumstances cast serious doubt about the propriety of Cummins’s appointment. Public trust in the integrity of the judicial process requires us to resolve serious doubt in favor of a prosecutor‟s disqualification. State v. Romero, 578 N.E.2d 673, 676 (Ind. 1991); State ex rel. Meyers v. Tippecanoe County Court, 432 N.E.2d 1377, 1379 (Ind. 1982). We ascribe no improper motive to the trial court or to Cummins, but “sometimes an attorney, guiltless in any actual sense, nevertheless is required to stand aside for the sake of public confidence in the probity of the administration of justice.” Romero, 578 N.E.2d at 676-77 (quoting State v. Rizzo, 69 N.J. 28, 30, 350 A.2d 225, 226 (1975)).
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