The elected prosecutor of Knox County in southwestern Indiana has been cleared of a charge of “offensive personality” in an attorney ethics case arising from his conduct in a police investigation of a former deputy prosecutor’s sexual relationship with a woman serving time on meth charges. It’s the second time in days that justices have cleared an elected prosecutor in a discipline case.
The Indiana Supreme Court on Thursday issued a published judgment in favor of elected Republican Prosecutor J. Dirk Carnahan. The Indiana Supreme Court Disciplinary Commission alleged Carnahan failed to abstain from offensive personality, a violation of Indiana Rule of Professional Conduct 22, in the tone of emails he sent to the Vincennes police chief. Carnahan’s attorney in his discipline case, Margaret Christensen of Dentons Bingham Greenebaum, previously called her client a victim of a vendetta born of the “small-town rumor mill.”
Former Vincennes Police Chief Dusty Luking said he felt threatened by emails Carnahan had sent him. Carnahan had been angered that Det. Stacy Reese, who investigated a deputy prosecutor’s relationship with a jailed woman, had been cleared by the city’s merit commission.
That deputy prosecutor, Joseph Burton of Farmersburg, was suspended for 90 days with automatic reinstatement in a separate discipline case that gave rise to the case against Carnahan. Burton retired from his position in April 2018. Carnahan was never accused in his disciplinary case of any inappropriate relationships.
The email Carnahan sent former Chief Luking that prompted the prosecutor’s discipline case read, in part:
“I have heard rumors that you have molested a child. I have no complainant nor any indication that the rumors are true. However, I intend to launch a full-scale investigation. I intend to question your family and friends and repeatedly comment that you are the subject of an official investigation for child molestation. The press may pick up on this and certainly the people you work with every day will hear it. I doubt they will ever again be able to look at you the same way. You will hear whispers among the people you work with. You will wonder how the news of the investigation will affect your children and your family.
“Obviously, I would never do such a thing. For a few seconds, you may have felt some of what I feel every day. My complaint has been that Reese … did even worse than this. They instituted a formal investigation for something that isn’t criminal and for which no complainant had come forward. In the course of this investigation of something that wasn’t criminal and was based solely on ‘rumors’ they repeated to other officers, to the witness they interviewed and others that ‘there are rumors that Dirk has traded sex’ with criminal defendants. If that had happened to you, you would be furious. Your perspective would be entirely different had you been the target of such a thing.”
Disciplinary commission hearing officer and Lafayette attorney Robert C. Reiling recommended Carnahan not be sanctioned. The Indiana Supreme Court unanimously agreed.
“The hearing officer concluded the Commission failed to meet its burden of proving the charged violation. After reviewing the evidence and considering the parties’ arguments, the Court concludes that the hearing officer’s findings of fact and conclusions of law are supported by the evidence, which we decline to reweigh. The Court therefore finds that the allegation of misconduct was not proven and enters judgment for Respondent,” the court found in a one-page order.
Christensen did not immediately reply to an email Friday seeking comment from her or Carnahan.
IPAC joined in
Taking an unusual step, the Indiana Prosecuting Attorneys Council joined Carnahan’s case, filing an amicus brief on his behalf that expressed concern about nature of the disciplinary case against him. “At most,” IPAC argued, “Prosecutor Carnahan’s approach should have been scrutinized and highlighted in a caution letter. … Indiana’s prosecuting attorneys believe Prosecutor Carnahan had a right to be frustrated and a right to privately convey a sense of that frustration to Chief Luking, but a show of frustration is not a display of ‘offensive personality.’”
IPAC distinguished Carnahan’s case from those against former Marion County Prosecutor Carl Brizzi and former Johnson County Prosecutor Brad Cooper, in which both prosecutors were publicly reprimanded for comments they made.
Those cases, IPAC said in its amicus brief, concerned speech that was public and, in Brizzi’s case, was an improper extrajudicial statement, and in Cooper’s case was critical of a judicial officer.
“The Disciplinary Commission’s attempt to sanction Prosecutor Carnahan for this private communication amounts to an improper restraint on Prosecutor Carnahan’s right to free speech,” IPAC said. If the commission prosecutes ethics cases solely on the undefined “offensive character” basis, IPAC argued, “it actually becomes more likely that complaints will be made with the slightest of cross words. This will lead to needless investigations and a suspicious, less collegial bar.”
Troubles at the Vincennes PD
Further, IPAC chronicled in its brief why Carnahan had reason to be angry, even if, as it said, the words he chose to express himself were “awkward.”
“Detective Reese and Chief Luking abandoned the norms of professional police officers. Detective Reese lied even when she knew nothing was amiss and Chief Luking surprisingly underwrote that behavior before the VPD Merit Commission. … Indiana’s prosecuting attorneys believe Prosecutor Carnahan had a right to be frustrated and a right to privately convey a sense of that frustration to Chief Luking, but a show of frustration is not a display of ‘offensive personality.’”
Detective Reese is still on the force at the Vincennes Police Department but said in an email she could not immediately comment.
Luking retired from the force in October 2019 amid scandal. He had been placed on administrative leave in August 2019 after the FBI executed search warrants on the VPD as a result of a federal investigation. No criminal charges have been filed against Luking.
The former chief had requested an investigation prior to the FBI’s search, and the Indiana State Board of Accounts concluded in a report filed Nov. 9, 2020, that nearly $32,000 was missing from the VPD’s evidence vault during an audit covering the period from 2016-Oct. 23, 2019. Among other things, the audit found evidence vault procedures were not followed and the former chief had made purchases with police department money for personal and family use.
Discipline to discourage?
In his hearing officer’s report in Carnahan’s discipline case, Reiling said the case against the prosecutor “should be dismissed and no action should be taken against” Carnahan.
While finding Carnahan’s email may have been poor judgment, Reiling concluded it was not directed at a court, opposing counsel or a witness. He found the email wasn’t offensive personality, but the discipline that happened as a result may have been something else.
“Luking’s investigation and subsequent submission to the Vincennes Police Merit Commission was an attempt (to) exonerate Reese’s conduct and discredit Respondent’s complaint rather than provide an objective investigation,” Reiling found. “… Luking’s decision to file a disciplinary complaint against Respondent may have been filed to discourage Respondent from initiating a civil suit against Reese for her ‘slanderous’ comments.”
Reiling could find only a handful of cases nationwide, with a notable exception for Nebraska, in which attorneys were sanctioned solely for offensive personality.
“Indiana Courts give us no guidance regarding whether a disciplinary charge based solely on the Oath of Attorney is grounds for attorney discipline. However, the Court has provided us some guidance regarding ‘offensive personality’ in the case of In Re Halpin, 53N.E.3d 405 (2015). This case was based on a violation Rule 8.4(d) of Rules of Professional Conduct for Attorneys at Law and violation of the Oath of Attorney. Factually, the case dealt with an interaction between the disciplined attorney and opposing counsel in which the disciplined attorney threatened disciplinary charges against opposing counsel, made personal attacks against an opposing party and openly criticized the Judge for a ‘stubbornly injudicious attitude’,” Reiling wrote.
“It would be a stretch of imagination to argue that the facts presented by the Commission in this case rose to the same level as was set forth in In Re Halpin.”
The decision marks the second time in a week that justices have cleared an elected prosecutor of alleged misconduct.
The court on Feb. 25 ruled in favor of Putnam County Prosecutor Timothy Bookwalter, who was accused of violating Indiana Professional Conduct Rule 3.8(d). The rule regulates a prosecutor’s duty to disclose to the defense “all evidence or information known to the prosecutor that tends to negate the guilt of the accused” as well as “all unprivileged mitigating information known to the prosecutor.”