ILNews

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. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

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  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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