ILNews

Court says why it removed special prosecutor

Back to TopE-mailPrintBookmark and Share

The Indiana Supreme Court released an original action Nov. 13 explaining why it ordered an appointed special prosecutor in Delaware County removed from a case.

The high court issued Oct. 16 its permanent writ of mandamus in which it granted the petition of relief of Adrian D. Kirtz. Kirtz claimed Delaware Circuit Court No. 5 and Judge Thomas A. Cannon Jr. exceeded their jurisdiction and failed when under a duty to act by appointing J.A. Cummins as the special prosecuting attorney in Kirtz's pending criminal case. A special prosecutor was appointed because Kirtz had been a cooperating witness in several cases - pending and closed - in state and federal court, and the Delaware County prosecutor wanted to avoid the appearance of impropriety.

In that writ, the justices said they may issue an order or opinion explaining their reasons for the grant. They did that Friday, detailing why it could be viewed as inappropriate to have Cummins serve as the special prosecutor.

Cummins is the brother-in-law of attorney Michael Alexander, the man against whom Kirtz recently testified in a different criminal case. Alexander was charged with bribery and Kirtz, as a former client of Alexander's, was one of the state's material witnesses against the attorney. Cummins attended some of the trial and was there when Kirtz testified. Alexander was found not guilty. Just a few weeks later, Cummins was appointed to prosecute Kirtz.

The trial court didn't believe the family relationship between Cummins and Alexander would create an appearance of impropriety, but the justices saw otherwise. Cummins had expressed an interest in the Alexander case and attended some of the trial to show his support for his 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 per curiam opinion stated. "The issue is one of appearance: whether Cummins's appointment created the appearance of impropriety."

Cummins' appointment, given the totality of the circumstances, would allow an objective observer reasonably to question whether his relationship with Alexander and Kirtz's role in that case would affect the prosecution of Kirtz.

"Public trust in the integrity of the judicial process requires us to resolve serious doubt in favor of a prosecutor's disqualification," wrote the court.

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

ADVERTISEMENT