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Thursday, December 03, 2009

Ind. Courts - More on "David Camm defense seeks special prosecutor to replace Henderson" [Updated]

Updating yesterday's ILB entry, Matt Thacker of the New Albany News-Tribune has a story, dated Dec. 2nd at 10:39 pm, that reports:

Attorneys for David Camm are asking that a special prosecutor be appointed before a decision is made about a possible third trial, alleging that Floyd County Prosecutor Keith Henderson has negotiated a book deal to write about the case.

In a motion filed in Warrick County Superior Court No. 2 on Tuesday, attorneys state there is a conflict between Henderson’s personal interest and the interest of the State of Indiana.

“The elected prosecutor has negotiated a financial contract to write a book concerning the investigation into the Camm murders and the trials,” the motion states. * * *

Henderson released a statement late Wednesday afternoon that, after the case was out of his jurisdiction, he had agreed to publish the story of the Camm case with the encouragement and support of Kim Camm’s family.

The attorney general’s office represents the state on appeals cases. Henderson said that the agreement to publish the story was terminated once Camm’s second conviction was overturned by the Supreme Court.

“However, I am more convinced now than ever that when this matter is completed, the unedited version of events needs to be told,” Henderson said.

Camm’s attorneys say sources within the publishing industry name Frank Weimann as the agent who negotiated a book deal between Henderson and Penguin Publishing. * * *

The motion filed by Camm’s defense cites Indiana’s Rules of Professional Conduct stating that an agreement for literary rights creates a conflict of interest between the client and lawyer. Camm’s defense team argues that the rule also applies for prosecutors representing the state as their client.

The American Bar Association also states that “entering into such literary or media agreements prior to the conclusion of all aspects of the criminal matter should be scrupulously avoided.”

The motion argues that Henderson’s interests are divided between justice and his personal interest in future sales of the book. The attorneys say Henderson sought publicity during the second trial by trying to move the case back to Floyd County, and they argue he is more likely to seek a third trial in order to have a “better story to tell.”

“Because of his book deal, the prosecutor now has a pecuniary interest directly relating to the publicity surrounding Mr. Camm’s case and at direct odds with his duty as a prosecutor to represent the State of Indiana,” the motion states. * * *

Henderson has not said whether he will seek a third trial but that a decision would be made within the next few days. Henderson said a press conference will be held later this week.

From a report by Ben Zion Hershberg of the Louisville Courier Journal:
Michael Frisch, an ethics attorney and adjunct professor of law at Georgetown University Law School, said Henderson’s agreement with a publisher, even if it’s no longer in effect, could still raise ethics questions as well as questions for the judge who would preside over another Camm trial.

The Indiana professional rule for lawyers cited in the request for a special prosecutor follows national guidelines from the American Bar Association, Frisch said. Under the rule, negotiating a book agreement on an ongoing case could be interpreted as an ethics violation, even if a contract isn’t in effect, he said.

He said the trial judge, meantime, would be concerned about the trial’s “integrity” and whether Henderson’s interest in publishing a book could have an effect on the way he conducted the trial.

For example, Frisch said, a judge might consider whether a lawyer thinking about publishing a book would want a trial to be as dramatic as possible, and whether that would conflict with his duty to do what’s best for his client – in Henderson’s case, the State of Indiana.

In their request for Henderson’s dismissal from the case, Camm’s lawyers said that, “By negotiating an agreement to write a book based on the information he has learned from investigating the Camm case, Prosecutor Henderson has acquired a personal pecuniary interest in the re-prosecution.”

[Updated at 12:51 PM] A very brief entry posted on the New Albany News-Tribune about an hour ago reports:
Floyd County Prosecutor Keith Henderson announced Thursday morning that he'll try David Camm a third time for the murders of his wife and two kids.
And Harold J. Adams of the Louisville Courier Journal reports:
Floyd County Prosecutor Keith Henderson said Thursday the state will retry David Camm.

The Indiana Supreme Court said earlier this week that it won’t reconsider its decision overturning Camm’s conviction of the murders of his wife and two children in September 2000.

A decision not to retry Camm would have meant releasing him from the life sentence without possibility of parole.

Camm has been tried twice for the murders and convicted both times, but both convictions were overturned on appeal.

Posted by Marcia Oddi on December 3, 2009 11:43 AM
Posted to Indiana Courts