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Court says why it removed special prosecutor

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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.

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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