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IBA: Attorneys Beware - Conflicts of Interest and Attempts to Make a Buck

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By Alex E. Gude, Bingham Greenebaum Doll LLP
 

gude-alex-mug Gude

Attorneys looking to profit from their experiences at trial take note: the principles behind the so-called “Son of Sam” laws, which prohibit criminal defendants from profiting from the publicity of their crimes, may apply to you too, at least during the pendency of a criminal case. That is the conclusion reached by Indiana Court of Appeals in the recent decision of Camm v. State, 957 N.E.2d 205 (Ind. Ct. App. 2011), which involved David Camm, who had twice been tried for the murder of his wife and two children.

The facts of the case are as follows. The elected prosecutor handled Camm’s second trial. At some point during the proceedings, the prosecutor decided to write a book about his experience in the case. Before the jury reached its verdict in the second trial, the prosecutor made contact, via his wife, with a literary agent who eventually helped him find a publisher for his proposed book. The prosecutor entered an agreement with the agent shortly after the verdict, and before sentencing. On March 28, 2006, the trial court sentenced Camm to life without parole.

In June of 2009, the prosecutor entered into an agreement with a publishing company and received an advance. Shortly thereafter, the Indiana Supreme Court reversed Camm’s second conviction. While a petition for rehearing of the decision was pending, the prosecutor sent an email to his publisher expressing concerns regarding the advance, while also noting that he was still “committed to writing the book.” The prosecutor cancelled the writing contract in September of 2009, and returned his advance. On November 30, 2009, the Supreme Court denied the state’s petition for rehearing, and the next day, the prosecutor re-filed the murder charges against Camm.

In response, Camm filed a petition requesting the appointment of a special prosecutor, arguing that the elected prosecutor had a conflict of interest. In reversing the trial court, which denied Camm’s petition, the Court of Appeals noted that the prosecutor’s cancellation of his literary contract prior to the third trial did not eliminate his conflict of interest. As the Court explained: “this is a bell that cannot be unrung. [The prosecutor] signed a contract to author and publish a book about the Camm case prior to Camm’s third retrial, and, in doing so, he permanently compromised his ability to advocate on behalf of the people of the state of Indiana in this trial.” According to the Court, the prosecutor’s decision precluded effective prosecution of Camm, because he provided Camm with an argument he would otherwise not have at trial –namely, that the prosecutor was influenced by his own personal interest when he decided to try the case for a third time.

The prosecutor’s decision to sign the literary contract was not the sole source of his conflict, however. His commitment to writing the book, as expressed in the email to his publisher, and comments made to the media, also created a conflict. As the Court explained: “[The prosecutor] should not have a personal interest in the case separate from his professional role as prosecutor. In other words [he] cannot be both committed to writing a book about the Camm case and serve as a prosecutor.”

The extent to which Camm’s holdings can be applied outside of its factual context are not clear, but they do raise interesting questions. How far does the Court’s prohibition on personal interests in cases extend? Does it preclude a prosecutor from taking on a case when he has a political or publicity interest in its outcome? Similarly, is there a conflict of interest when an attorney tries a case rather than settling it, in part, in order to gain publicity or notoriety? Only time will tell. In the meantime, attorneys should consider the ways in which they can temper their actual or perceived personal interests in the cases they handle for clients.•

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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