Justices to decide whether dismissed manslaughter trial can proceed

December 20, 2017

After initially being charged in the shooting death of his wife, John Larkin’s criminal case was thrown out after a trial court judge determined the state failed to bring Larkin to trial within the appropriate timeframe. Plus, the case was rife with state and prosecutorial misconduct, leading the judge to conclude Larkin could no longer receive a fair trial.

The Indiana Court of Appeals upheld the dismissal of the manslaughter charges filed against Larkin, but after oral arguments Tuesday morning, the Indiana Court of Appeals could choose to reinstate the case of State of Indiana v. John B. Larkin, 46S04-1711-CR-00701.

The trouble with Larkin’s case began in December 2012, when LaPorte County deputy prosecutor Robert Neary and local law enforcement officials listened in on a privileged conversation between Larkin and his attorney that was caught on video camera. A separate recording also captured law enforcement discussing a plan to pressure a colleague into changing his testimony to hurt Larkin’s defense.

After disclosing that it listened in on the privilege conversation, the state stipulated in November 2014 that it would try Larkin within three months, However, after a series of judicial and prosecutorial recusals delayed the case, Larkin moved for dismissal.

Special Judge Patrick Blankenship agreed to dismiss the case on misconduct and Criminal Rule 4(C) grounds, but Eric Babbs, counsel for the state, told the high court the prosecution should now be reinstated. That’s because under State v. Taylor, 49 N.E.3d 1019 (Ind. 2016), the state was entitled to a hearing to determine what, if any, evidence was tainted by the state’s misconduct.

If such a hearing had been held, the state would have been able to present independent evidence and untainted witnesses that could have been used to prove Larkin’s guilt, Babb said. However, a Taylor hearing was never held in this case, thus depriving the state of that opportunity.

But Stacy Uliana, Larkin’s counsel, said the state’s appeal was now too little too late, considering it repeatedly engaged in misconduct and resistance that caused the three-month clock to run out. She based her argument largely in Criminal Rule 4, addressing the issue of when the clock on the 90-day period the state had stipulated began to run.

Prior to filing the instant appeal, Larkin filed an interlocutory appeal seeking the appointment of a special prosecutor. The trial court stayed its proceedings while that appeal was pending, yet ruled on two state motions before the interlocutory appeal was certified. The decision to rule on the state’s motions effectively lifted the stay, Uliana told the court, thus starting the 90-day clock.

Babbs, however, said the time could not begin running until the appeal was certified, relying on Pelley v. State, 901 N.E.2d 494 (Ind. 2009) for support. Chief Justice Loretta Rush, however, struggled with the arguments put forth by both parties.

Looking to Babbs’ argument, Rush questioned how the trial court could have authority to rule on the state’s motions if the stay had not been officially lifted, as he argued. But turning to Uliana’s position, she also said it was a “murky” position to assume a judge could implicitly lift a stay by ruling on motions.

Looking again to the Pelley decision, Babbs said both parties to a case have the right to fully litigate pretrial motions, such as those related to the recusal of prosecutors. That right cannot be violated by charging the state with the time it takes to litigate those motions, he said.

Uliana, however, said the case is about the state failing to correct its mistakes early on in the proceedings. Further, she alleged the prosecutors failed to act on their duty to bring Larkin to trial within the appropriate amount of time.

Thus, the state cannot now seek additional time to bring Larkin to trial due to its failure to take its duties seriously, Uliana said. Instead, she agreed with the trial court that the state’s time is now up.

Tuesday’s full oral arguments can be viewed here.

While the justices considered the fate of Larkin’s trial, other effects of the state’s misconduct in the case are already in motion. Specifically, Neary was recently suspended for four years without automatic reinstatement for his conduct in Larkin’s case, and other similar conduct in a second case.


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