Prosecutor’s involvement in judge’s re-election committee doesn’t require recusal

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The Howard County prosecutor’s membership on a sitting judge’s re-election campaign committee did not require the judge to recuse himself in two separate cases, two panels of the Indiana Court of Appeals ruled Tuesday.
In the case of Keith D. Abney v. State of Indiana, 34A02-1608-CR-1746, Kokomo police officers began conducting surveillance on Keith Abney’s home in October 2015, then executed a search warrant on the home after finding syringes and a bag of heroin during a traffic stop of a car seen at Abney’s home.

Police discovered Abney, Patrick Acord and Joyce Linkenhoker in the residence with substances that tested positive for heroin, drug paraphernalia that tested positive for methamphetamines, a handgun, syringes, marijuana, digital scales and $1,625. Abney was charged with various felony drug charges, including dealing in a narcotic drug. Additional felony charges were later added, including possession of cocaine and maintaining a common nuisance.

Abney’s appointed counsel moved to recuse Judge William C. Menges Jr., arguing prosecuting attorney Mark McCann had been a member of Menges’ campaign committee and that Menges had an ethical duty to disclose his relationship with McCann or other members of the Howard County Prosecutor’s Office. During a subsequent hearing, Abney’s counsel said Abney had discovered a newspaper article that prompted the motion to recuse.

The court admitted the June 2016 newspaper, which referenced the case of Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012), in which Kiang’s attorney served as chair of the judge’s campaign committee, information which wasn’t disclosed. The article also said Menges’ opponent in an upcoming general election was concerned about the county’s chief prosecutor and deputy prosecutor having political ties to the judge. However, McCann said in the article he had yet to participate in any election committee activities.

Additionally, Menges was quoted in the article as saying he had only sought public endorsements from the prosecutors, and that the chief public defender had given a similar endorsement. The motion to recuse was denied, Abney was found guilty as charged, and he was sentenced to an aggregate of 4,380 days.

On appeal, Abney challenged the denial of his motion to recuse, but Indiana Court of Appeals Judge Elaine Brown wrote in a Thursday opinion that Abney failed to follow the mandates of Criminal Rule 12, including failing to file an affidavit that the judge had a personal bias and failing to file his request within 30 days of the initial hearing. Thus, the trial court did not err in denying his motion.

Further, unlike in Bloomington Magazine, the prosecutor in this case was not the chairman of the campaign committee and had yet to perform any election committee activities as of June 2016, Brown said. Thus, under the circumstances, a reasonable person would not have a rational basis to doubt Menges’ impartiality, she said.

Abney further argued the trial court erred by refusing to allow him to explore the fact that Acord was also an admitted drug dealer and was present at the time the search warrant was executed. But the trial court sustained an objection to exclude testimony to that end, and Abney did not argue the sustainment was improper. Thus, the trial court did not abuse its discretion in excluding that evidence, Brown said.

The appellate panel affirmed the trial court’s sentencing order, finding Abney’s credit time was properly awarded.

The companion case, William Patrick Cheek v. State of Indiana, 34A04-1610-CR-2326, began when William Cheek was charged with three drug felony offense, then failed to appear at pretrial conference, leading to an additional charge of failure to appear.

During his jury trial on the failure to appear charge, Cheek filed a motion to recuse, arguing that because McCann, who brought the case against Cheek, was on Judge William Menges’ re-election committee, the judge had a personal bias that required recusal. The motion was denied, and Cheek was found guilty of Level 6 felony failure to appeal and sentenced to 730 days executed, leading to the current appeal.

Indiana Court of Appeals Senior Judge Randall Shepard wrote “when evaluating a motion for recusal based upon counsel’s campaign-related activities, the general principle is that the timing, nature, and extent of participating in a judge’s campaign are relevant factors to consider.”

Pointing to the record in Abney, which was brought in the same court on the same basis as Cheek, Shepard said that while the prosecutor was a member of the judge’s re-election advisory committee, he had not performed any election committee activities as of June 2016. Cheek’s case was filed on Aug. 22, 2016.

Further, Shepard noted the prosecutor and the chief public defender were both members of the campaign advisory committee, “which the judge regarded as basically nothing more than a public endorsement.” Thus, based on the circumstances and previous decisions in cases such as Abney, Shepard said an objective person would not have a rational basis to doubt Menges’ impartiality.

Cheek also challenged the sufficiency of the evidence to support his failure to appear conviction, but Shepard wrote, “Cheek was released on his own recognizance upon agreement that he would reappear without formal notice, was notified in open court about the date he should reappear, and he did not.” Thus, the evidence supports his conviction.

Cheek also challenged his 730-day sentence, but the appellate panel affirmed, noting he was sentenced to less than the statutory maximum and that his criminal history is “modest but not insignificant.

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