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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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