New prosecutor renders defendant’s request moot

A defendant’s request to disqualify the entire LaPorte County Prosecutor’s Office from his voluntary manslaughter case because several in the office viewed his conversation with his attorney recorded during a police interrogation is moot because there is a new prosecutor in office, the Indiana Court of Appeals has ruled.

In John Larkin v. State of Indiana, 46A05-1411-CR-550, Larkin filed his motion to disqualify and request for a special prosecutor after learning while preparing for trial that the conversation with his attorney was recorded on video. Larkin was at the police station regarding the 2012 shooting death of his wife, and the video recording the interview was not turned off during a break. He claimed that videotaping his conversation with his attorney during the break violated his Sixth Amendment right to effective assistance of counsel. The state argued that no new subjects were discussed during Larkin’s conversation with his counsel and no evidence was disclosed or derived as a result of the conversation.

At the time, Bob Szilagyi was prosecutor; but John Espar was elected the new prosecuting attorney in November 2014, and he had no involvement in the challenged conduct.
“We agree with the State that the appointment of a special prosecutor is moot here because Szilagyi is no longer the prosecutor. The new prosecutor Espar was not involved in listening to Larkin’s confidential conversation with his attorney. Because there is no basis to disqualify Espar, there is no basis to disqualify the entire LaPorte County Prosecutor’s Office as Larkin is requesting,” Judge Michael Barnes wrote.

“We also conclude that the public interest exception is not applicable here. Although the issues involve a question of great public importance, i.e., improper interference with an attorney-client relationship by at least one deputy prosecutor, the circumstances here are unusual enough that they are not likely to recur or continue to evade review. Larkin’s request to disqualify the entire
LaPorte County Prosecutor’s Office is moot. Consequently, we dismiss the appeal of the trial court’s denial of Larkin’s motion to disqualify the Prosecutor’s Office and appoint a special prosecutor.”

Barnes noted that if requested by Larkin, the trial court should consider whether disqualification of any of the deputy prosecutors involved in viewing the video or reading the transcript would be appropriate in this situation.

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