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. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

ADVERTISEMENT