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Wednesday, November 24, 2010

Ind. Courts - More on: David Camm hearing tomorrow in Rockport [Updated]

Updating yesterday's ILB entry, Grace Schneider of the Louisville Courier Journal was at the hearing today in Rockport. Here are some quotes from her story:

ROCKPORT, IN – Prosecutors and defense lawyers for David Camm sparred aggressively during a hearing Wednesday over the question of whether Floyd County Prosecutor Keith Henderson should be allowed to stay on the triple murder case.

Special Judge Jonathan Dartt didn’t rule after nearly six hours of testimony on whether Henderson should be removed from the case because of a book deal Henderson signed in May 2009, a deal a law professor testified resulted in the prosecutor having “divided loyalties.”

The judge’s decision is expected within a month. If he rules Henderson can stay on the case, Camm’s defense team may appeal, which could delay the trial well into 2011.

Camm, a former Indiana State police trooper, has been convicted twice of fatally shooting his wife, Kim, 35, and his two children. Both convictions were overturned on appeal, and now the parties are gearing up for a third trial — in a case that’s predicted to cost Floyd County, Ind. taxpayers more than $2 million.

Camm’s lawyers argued during the hearing that Henderson should be removed from the case and replaced with a special prosecutor because it was a conflict of interest for Henderson to sign a book deal while the case was still ongoing. * * *

During the hearing, Camm lawyers Richard Kammen and Stacy Uliana presented testimony from Norman Lefstein, a former Indiana University law school dean who testifies frequently as an expert on legal ethics.

Lefstein testified there were several instances where he thought Henderson’s conduct — lining up a literary agent shortly after the second murder conviction and signing a contract with Penquin Book last year — violated state judicial ethics rules and put Henderson’s personal goals and the state’s interests in conflict.

The professor, who acknowledged he isn’t licensed to practice law in Indiana, pointed to one ethics rule accepted in most states that prohibits defense lawyers and prosecutors from negotiating or contracting literary rights on cases in which they are involved.

“It’s really about divided loyalties,” Lefstein said. “You suddenly have personal interests that may be in conflict” with the prosecutor’s professional duties to represent the state.

Louisville's WHAS11 has a 2:00 minute newsclip here.

[Updated 11/25/10] Janelle MacDonald of WAVE3 has this story. Some quotes:

"The third trial is a bigger book and our fear is that from this point on, whatever assurances he makes to the contrary the book, the desire for the book drives the case," said Camm's new lawyer, Richard Kammen.

Kammen says the prosecutor has a conflict and he should be kicked off the case.

Henderson says at the time he signed the deal, he thought the conviction would be upheld and the Indiana Attorney General's office was on the case. He says the deal was terminated after the Supreme Court's decision.

"There's no conflict of interest," Henderson said. "I wasn't the prosecutor. I wasn't the prosecutor on the case ... What's my conflict, that I'm going to prosecute him harder?"

In a five hour hearing Wednesday, lawyers made their case to Special Judge Jon Dartt and it got ugly at times.

"I think that unfortunately, sometimes people play to the press," Kammen said. "I think that's one of the concerns here: the more that the press is involved, the bigger the book it is."

"Let's call this for what it is," Henderson said. "They want to get rid .. they've gotten rid of the judge, they've gotten rid of the jury, the county and now they want to get rid of the prosecutor. It's a tactical advantage pure and simple."

The lawyers will file written arguments with Judge Dartt by December 4 and the judge promises to make a decision within 30 days or less, but it's unclear when the trial would be. Henderson estimates late summer or fall but also says if he stays on the case, the defense will appeal. If there's a new prosecutor, that person will have to get up to speed. Both could slow down this ten year old case.

Some quotes from this story by Matt Thacker of the New Albany News & Tribune:
Lefstein testified that attorneys are prohibited from negotiating for literary rights in connection with a case in which that attorney is still engaged. He said that section of the attorney ethics code applies to all attorneys, including prosecutors who represent the state as a client.

Camm’s attorneys frequently referenced an e-mail to Henderson’s agent and co-author that was written July 30, 2009.

In the e-mail, Henderson asks them to delay deliveries of the manuscript to the publisher until after the third trial and advises them to negotiate more money on the front or back end because it will now be a “bigger story than ever.”

Owen said the entire deal was worth only $10,000, with 15 percent of that going to the agent and the remainder split in half between the writer and Henderson. He said it was never about the money.

One challenge for both sides was finding applicable case law.

“Not a single prosecutor in our knowledge in the history of the state of Indiana has done what Mr. Henderson did,” Camm’s attorney, Richard Kammen, argued. * * *

Another alleged ethical violation was Henderson’s press release stating, “After the case is completed, the unedited version of events need to be told.”

Camm’s side argued that this was intended to prejudice the next jury by hinting that there is more evidence than can be presented at trial.

They also argued there was no written agreement that the book deal would be terminated if the decision was reversed by the Supreme Court. Owen said the agreement was not written, but there was an understanding that it would be terminated.

Camm’s attorneys alleged that Henderson’s misrepresented his agreement in filings with the court.

“He has, in my opinion, not been truthful explaining what transpired in the past,” Lefstein said.

He said it was Penguin Publishing that terminated the book deal because they did not want to wait until after the third trial.

Another issue was whether Henderson should be required to submit a manuscript of the book to the court. Henderson said he does not have it and has never seen it, but Kammen wanted it produced from the co-author. Henderson objected.

“The defense does not have a right to my thoughts, to my opinions,” Henderson said.

Kammen said Henderson indicated in an e-mail that what is in the manuscript could have him removed from the case, and they have the right to know what that is.

Posted by Marcia Oddi on November 24, 2010 06:35 PM
Posted to Indiana Courts