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Monday, July 07, 2014

Ind. Courts - Isn't it time to get serious about prosecutor misconduct?

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

As highlighted by a couple of recent opinions that reversed convictions, prosecutorial misconduct is unfortunately an all-too-common issue in Indiana criminal appeals. Beyond the relatively rare reversals, though, many appellate opinions have frequently found that prosecutors engaged in misconduct — sometimes even by citing specific Rules of Professional Conduct. Yet disciplinary opinions on the subject seem non-existent. This post considers the roles of the Indiana appellate courts, the Marion County Prosecutor’s Office, the Indiana Disciplinary Commission, criminal defense lawyers, and the media in a woefully inadequate response to this troubling issue. It ends with a discussion of the ethical woes of Keith Henderson, the former Camm prosecutor who vividly highlights these concerns.

The Ryan Case and the Indiana Supreme Court

The Indiana Supreme Court’s opinion last month in Bruce Ryan v. State was in some ways surprising and in other ways not. Reversal of a conviction is a longshot anytime a defendant raises a claim on appeal that was not preserved in the trial court; the fundamental error doctrine requires “an undeniable and substantial effect on the jury’s decision [such] that a fair trial was impossible.” Citing a 2011 case, the Indiana Supreme Court reiterated that defendants are “‘highly unlikely’ to prevail on a claim of fundamental error relating to prosecutorial misconduct.”

Reticence to reverse a conviction for any reason, much less one that counsel did not preserve by an objection, is certainly understandable. But what is lost in the Ryan opinion — and most other opinions involving prosecutorial misconduct — is whether the reviewing court is even concerned or troubled by the prosecutor’s conduct or if prosecutors can safely continue the same conduct with impunity.

In Ryan the supreme court noted the impropriety of inviting the jury to convict for reasons other than the defendant’s own guilt when the prosecutor alluded to the “bigger picture,” to “hearing about this happening” without a chance “to stop it,” and to other perpetrators such as “a teacher, or a coach, or a pastor;” and then imploring the jury to "send the message that we're not going to allow people to do this."

It also expressed disapproval of the prosecutor’s “characterization of defense counsel’s line of argumentation as ‘how guilty people walk’ and a ‘trick,'” which violates the requirement that lawyers “demonstrate respect for the legal system and for those who serve it, including . . . other lawyers,” see Preamble [5], Ind. Professional Conduct Rules.

Nevertheless, the supreme court’s response was quite mild, simply noting in the conclusion that it did not “endorse the prosecutor’s trial tactics in this case.” Compare this tepid language to the indignation expressed in other recent opinions about the conduct of non-lawyers. Remember the detective, who is constitutionally permitted to tell all sorts of lies to suspects but told an African-American defendant he would face a jury of Caucasians and Hispanics in Lake County? The supreme court justices were beside themselves: “this was an intentional misrepresentation of rights ensconced in the very fabric of our nation’s justice system—the rights to a fair trial and an impartial jury, and the right not to be judged by or for the color of your skin—carried out as leverage to convince a suspect in a criminal case that his only recourse was to forego his claim of innocence and confess. And like Judge Kirsch, we condemn it.” Or a family case manager at the Department of Child Services who claimed she had simply completed a form that automatically “populated” with certain information? “We find it extremely troubling that a representative from DCS would make a misrepresentation on such an important document.”

Shouldn’t the court expect at least as much of lawyers in the justice systems as it does of detectives and case managers?

But in the Ryan case the court never suggested it was troubled, much less extremely troubled, and offered no condemnation of lawyer conduct. Rather, the court surprised and confused many by including the prosecutor’s name on the opinion. She did not file an appearance on appeal but did, as prosecutors sometimes do, sit at the State’s table at oral argument. Sitting at counsel table and not speaking at argument has never before warranted inclusion of a prosecutor’s name on an opinion. Was this some form of vindication (the Indiana Supreme Court found only two problems with the prosecutor’s conduct instead of the several found by the Court of Appeals) or was it a mild form of public shaming (albeit for conduct that was simply “not endorsed”)?

The Indiana Supreme Court leads the State’s judicial system. If it shows little or no concern about prosecutor misconduct, one cannot expect the Court of Appeals, the Disciplinary Commission, and others to care much either.

Marion County Prosecutorial Misconduct Cases

Prosecutorial misconduct is far too common in Marion County. The day before the Indiana Supreme Court issued its opinion in Ryan, the court of appeals reversed a conviction for prosecutorial misconduct in a case involving the same (unnamed) Marion deputy prosecutor. The court of appeals found that the prosecutor had improperly distinguished between the role of the defense and the prosecution, improperly vouched for the State’s witnesses, and asked argumentative and inflammatory questions.

What about other cases? The linked document ("Prosecutor Misconduct Discussed in Appeals from Marion County, January 2012-June 2014") includes 22 cases in which an Indiana appellate court has found, or assumed without deciding, one or more instances of improper conduct by prosecutors in Marion County since 2012. Sometimes the court explicitly cites a Rule of Professional Conduct; other times the court simply describes the conduct.

Marion County Prosecutor Terry Curry, who was elected in 2010, is either oblivious to or unfazed by these opinions. His June email newsletter boasts that his office is “holding criminals accountable for their actions, preserving the rights of victims and continually seeking justice, all while maintaining the highest of ethical standards.” (emphasis added) Ethics was a big part of the 2010 campaign to replace Carl Brizzi, but Mr. Curry’s self-congratulations seem unwarranted in light of the 22 cases out of a fairly small universe of only a few hundred cases appealed since 2012 involving his lawyers. Some may question whether Curry has appropriate policies in place and has been taking "reasonable efforts to ensure that his subordinates conform to the Rules of Professional Conduct” as required by Professional Conduct Rule 5.1(a) & (b).*

The Court of Appeals

Some of the 22 opinions include a fairly detailed and specific explanation of exactly what the prosecutor did wrong, at times even citing applicable Rules of Professional Conduct. For example, citing Rule 3.4(e):

A concurring opinion from Judge Friedlander in a third case suggests concern about prosecutor misconduct but apparent resignation to stopping it: “we do not go so far as to explicitly ‘condemn’ the prosecuting attorney’s actions, although we could, and perhaps should. Be that as it may, there is cause to doubt the efficacy of even an official condemnation of such behavior. Our appellate courts have on occasion issued condemnations of prosecutorial misconduct. [citations omitted] Yet, instances of condemnable prosecutorial behavior continue to come before us on appeal.” (Link to opinion.)

It is disappointing that none of these 22 opinions include language such as this: “We also direct the clerk of this court to transmit a copy of this opinion to the Indiana Supreme Court Disciplinary Commission for any action it deems appropriate.”**

Finally, although the desire to resolve cases without discussion of unnecessary issues is understandable in many appeals, prosecutorial misconduct cases should be treated differently. Opinions that assume without deciding that comments were misconduct but nevertheless affirm the convictions because the error was harmless or did not make a fair trial impossible leave defense lawyers, prosecutors, and trial judges wondering if the statement or other conduct was permissible or not. Can the prosecutor say the same thing in a future trial? Should the defense lawyer object? Should a trial judge sustain an objection to it?

Disciplinary Commission

Discipline of prosecutors is uncommon in Indiana. A search for “Witte” (the head of the Disciplinary Commission for the past four years) and “prosecutor!” yielded the following three opinions:

The most recent report of the Disciplinary Commission available on its website is for 2011-12. It does not include a separate category for allegations prosecutor misconduct, so it is impossible to know how many grievances are filed — or if any were filed in the cases in which the appellate court explicitly found misconduct under the Rules of Professional Conduct.***

The Commission is certainly busy, but investigating claims of ethical violations against prosecutors — whom the Rules of Professional Conduct term “minister[s] of justice” with the obligation “to see that the defendant is accorded procedural justice” — seems at least as important as prosecuting a lawyer with 41 years of practice experience for participating in “Law Tigers,” a website that helped the public find a motorcycle attorney or expending enormous resources against a lawyer who criticized a judge in a private email.

Some of the instances of misconduct from the 22 Marion County cases discussed above seem at least as troubling as the conduct for which Ms. Flatt-Moore and Mr. Brizzi received a public reprimand.

Finally, the standard for prosecutors is surely no different than it is for other lawyers. For example, one of June’s disciplinary opinions included violations for the following against a lawyer in civil practice:

Charges relating to closing argument: Respondent made a number of inappropriate remarks during closing argument, including telling the jury that this would be “a perfect case for punitive damages,” even though his clients’ claim for punitive damages had been withdrawn in exchange for the restaurant not pursuing any comparative fault, alluding to facts that were not supported by admissible evidence, asserting personal knowledge of facts in issue, and stating his personal opinion as to the justness of his clients’ cause and the credibility of a witness.
This sounds remarkably similar to some of the statements by prosecutors in the cases mentioned above.

Defense counsel

In most of the 22 cases discussed above, defense counsel lodged no objection to the prosecutor’s statements and in the remaining ones counsel failed one of the other requirements for preserving a claim of prosecutorial misconduct: a motion to strike and a motion for mistrial. Perhaps all three of these should not be required, but until the law is changed defense counsel who fail to request all three will not preserve a claim for appeal and their clients will face a nearly impossible road to reversal under the fundamental error standard.

That said, reversible error is wholly separate from ethical misconduct. The failure of defense counsel to lodge the proper objection should in no way insulate prosecutors from ethical sanctions when their comments violate the Rules of Professional Conduct.

The Media

Appellate opinions finding misconduct, especially when a reversal occurs, would seem to be of great interest to the public, worthy of media attention but seldom garnering it. Questions for the offending deputy prosecutor or elected prosecutor would be appropriate, including mentioning the offending prosecutor by name. But that rarely happens.

Prosecutors are elected officials, and the public should be apprised of the significant activities of their office, especially those implicating ethics. Last month, the Indiana Lawyer posted a story online summarizing the Brummett opinion, which reversed a conviction because of several instances of prosecutorial misconduct. The final paragraph of the story included the prosecutor’s name and noted that she had previously resigned from the office and been disciplined after pleading guilty to reckless driving (as part of a plea agreement that dismissed a charge of operating a vehicle while intoxicated). That paragraph was inexplicably gone by the following morning and has not reappeared.

A Final Example: Floyd County Prosecutor Keith Henderson

More than two and a half years ago, the Indiana Court of Appeals ordered Floyd County Prosecutor Keith Henderson off of the high-profile David Camm prosecution because “[a]s prosecutor, Henderson should not have a personal interest in this case separate from his professional role as prosecutor. In other words, Henderson cannot be both committed to writing a book about the Camm case and serve as prosecutor. Such a personal interest creates an actual conflict of interest with his duties as prosecutor.” Months after denying transfer, the Indiana Supreme Court reappointed Mr. Henderson to a five-year term on its prestigious and powerful Rules Committee. With approximately 90 other prosecutors without ethical blemishes to choose from, Henderson is a surprising choice for this honor.

Although the filing of disciplinary grievances against lawyers is generally confidential, it’s no secret that one was filed against Mr. Henderson, who retained counsel at county expense to represent him in 2011. Many grievances, however, do not result in formal charges (a complaint). As explained on the Disciplinary Commission’s website: “If we believe there is probable lawyer misconduct, the full Disciplinary Commission will review the matter. If the Commission believes that the lawyer has engaged in misconduct for which he or she should be disciplined, we file a complaint with the Clerk of the Supreme Court formally charging the lawyer with misconduct.”

Because the clerk’s docket shows no filing of a complaint, one of two troubling things is true, either (1) the Disciplinary Commission is still investigating three years later (while instead devoting its resources to the Law Tiger and private email cases discussed above) or (2) the matter was resolved with no complaint being filed by the Commission. (The docket does show a private administrative admonition against Mr. Henderson in 2001.)

If all of that is not enough, the Indiana Prosecuting Attorney’s Council website lists Mr. Henderson as chair of its Ethics Committee.


Prosecutors are the most powerful player in the criminal justice system. They determine what, if any, charges will be filed and can dismiss charges or offer harsh or lenient plea agreements for any — or no — reason. Most try cases as “minister[s] of justice” who fulfill their ethical obligation “to see that the defendant is accorded procedural justice.” But a few prosecutors bend or break the rules in a quest to attain convictions at any cost. Without intervention, their numbers may well grow.
*Then again, a lack of leadership may be better than leading in the wrong direction, such as the incredibly wasteful, misguided prosecution of Bei Bei Shuai or dismissing a high-profile case and returning confiscated money while announcing a $300,000 donation to law enforcement (including 20% to Curry’s office).

**This language was included in a 2011 opinion in a civil case from the Indiana Court of Appeals, which quoted a recent Seventh Circuit opinion. Oddly, similar language is nearly impossible to find in opinions written by Indiana judges.

***Four pages of the Indiana Supreme Court’s 2013 annual report discuss the activities of the Disciplinary Commission and similarly provide no specific information about the categories of grievances filed or complaints filed.

Posted by Marcia Oddi on July 7, 2014 08:10 AM
Posted to Schumm - Commentary