November 15, 2009
Family Ties Create Appeareance Of Impropriety
A criminal defendant objected to the appointment of a special prosecutor on grounds that the prosecutor had ties to the county prosecutor's office and to a person that the defendant had previously testified against in a criminal case. The appointed prosecutor had taken a particular interest in the earlier case because the defendant (an attorney) was also his brother-in-law. The Indiana Supreme Court concluded that an appearance of impropriety was created by the prosecutor's interest in the case involving the brother-in-law:
...the evidence shows that Cummins was appointed to prosecute Kirtz just a few weeks after Kirtz testified against Cummins‟s brother-in-law in a felony case in which Cummins had expressed interest and some support for his brother-in-law and other members of their family. The issue here is not whether Cummins has a grudge against Kirtz or some other motivation to prosecute him more harshly; nor is the issue whether Cummins can set aside any personal feelings or interests he may have, fairly prosecute Kirtz, and effectively represent the State. The issue is one of appearance: whether Cummins‟s appointment created the appearance of impropriety. See Ind. Code § 33-39-1-6(d). The appointment created the appearance of impropriety because the totality of circumstances allowed an objective observer reasonably to question whether Cummins‟s familial relationship with Alexander and Kirtz‟s role in the case against Alexander would affect the prosecution of Kirtz, including Cummins‟s exercise of broad discretion in that prosecution.
The court's opinion is linked here. (Mike Frisch)
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