June 16, 2011
The Blind Eye
The Indiana Supreme Court has imposed a suspension of 120 days in a case in which a prosecutor engaged in conflicts of interest in forfeiture proceedings:
The parties stipulate that the narrow issue in this case is whether there is a conflict of interest when a deputy prosecutor contracts privately to do what the elected prosecutor could properly contract with private counsel to handle. At this point in these proceedings, the parties do not dispute the hearing officer's findings of fact or his conclusion that Respondent violated the rules as charged. The only issue the parties briefed was what discipline is appropriate.
Although [Chief] Prosecutor Reed set up and approved the procedure under which Respondent retained 25% of civil forfeiture judgments, the conflict of interest created by this system of compensation when he was also prosecuting the criminal action should have been apparent to Respondent. At no time did he undertake an independent assessment of the procedure. Had Respondent at any time taken a critical look at the system, he should have been able to see that a [Deputy Prosecuting Attorney's] representation of the State could have been materially limited by the DPA's personal financial interest in the [confidential settlement agreements] or the outcomes of civil forfeiture actions. Respondent essentially turned a blind eye to these now-conceded ethical violations for well over a decade.
As to sanction:
Although there is no evidence in this case that Respondent made any explicit quid pro quo offer of favorable treatment to any criminal defendant in exchange for the forfeiture of property from which Respondent would be compensated, it would doubtless be evident to such a defendant, and to his or her attorney if represented, that prosecutorial discretion in how to proceed with the criminal case was held by one who stood to reap personal financial gain if the defendant agreed to the forfeiture of his or her assets. Respondent's misconduct created an environment in which, at the very least, the public trust in his ability to faithfully and independently represent the interests of the State were compromized.
The attorney had sought the guidance of the Indiana Prosecuting Attorneys Council but did not fully disclose the procedure and conflict of interest. (Mike Frisch)
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