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Tuesday, January 27, 2015

Ind. Decisions - Rare published dissent to transfer denial [Updated]

Henry L. Shell, Jr. v. State of Indiana is a 3-2 order filed this afternoon by the Supreme Court, denying appellant's petition to transfer. At issue were allegations of prosecutorial misconduct.

From a rare published dissent of Justice David writes, joined by Justice Rucker:

I respectfully dissent from the denial of transfer. To emphasize the significant obligation that attorneys have to follow the rules and assure that justice is properly administered, I believe we should address the issue of whether the alleged prosecutorial misconduct was harmless beyond a reasonable doubt.

In this case, the prosecuting attorney did the following: (1) openly stated to the jury that defense counsel’s “check comes from the government too, so we all work for the government here”; (2) commented three times in front of the jury and over objection on Shell’s post-arrest right to remain silent; and (3) referred to his own opinion as to Shell’s guilt during closing arguments. (Tr. at 284, 657, 662, 691.) * * *

Prosecutors must ensure that a criminal defendant’s rights are upheld by exercising only the soundest judgment and caution. Whether improper prosecutorial statements are due to carelessness or a conscious effort to test the line of what constitutes misconduct, the potential for a cumulative prejudicial impact on a defendant cannot be ignored. Even cases where fundamental error is not established do not detract from the “condemnable” nature of prosecutorial conduct in some instances. See Bernard v. State, 540 N.E.2d 23, 25 (Ind. 1989) (stating that “comments actually made by the prosecutor at the trial below were subject to interpretation as comments on the failure to testify and were therefore condemnable”).

A reviewing court must determine whether prosecutorial misconduct “placed the defendant in a position of grave peril to which he or she would not have been subjected.” Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (citing Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002)). However, this is not to suggest that anything that falls just below this standard is necessarily considered appropriate. Rather, the highest degree of professionalism should continue to govern the behavior of all attorneys at all times. Walking the line of permissible and impermissible conduct creates distrust in our legal system, undermines the rights we have sworn to protect, and discourages collegiality. The profession deserves thoughtful adherence to ethical, professional, and prosecutorial standards.

Because this Court is passing up an opportunity to resolve what seems to me to be a disturbing trend, I respectively dissent from the denial of transfer.

Rucker, J., joins.

ILB: The Court of Appeals issued a 22-page NPF opinion in Shell v. State on July 14, 2014. The case comes from Miami County. Judge Crone wrote:
Shell raises numerous issues for our review, none of which constitute reversible error. Accordingly, we affirm.
At least one other petition to transfer involving allegations of prosecutorial misconduct currently is pending before the Supreme Court.

On July 7, 2014 the ILB posted a commentary by Prof. Schumm headed " Isn't it time to get serious about prosecutor misconduct?"

Posted by Marcia Oddi on January 27, 2015 04:32 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists