Wednesday, June 27, 2018

The Conversation

The Indiana Supreme Court reversed the dismissal of voluntary manslaughter charges against the husband of the victim

While the State’s preliminary charge was murder, Larkin agreed to speak with police if the State would consider only charging him with manslaughter. The police so charged Larkin, and then conducted a recorded interview. During a break, police left Larkin alone with his attorney, but kept the video recording equipment running, capturing Larkin and his attorney’s privileged communications. Larkin and his attorney discussed various aspects of the case including insurance, motivation and motive, possible charges, filing for divorce, the children, conditions of bond, the funeral, possible defenses, and the sequence of events on the evening of the shooting. Police and prosecutors viewed the video and, therefore, saw and heard Larkin’s privileged discussion with counsel. A court reporter even transcribed the discussion and distributed it to the prosecutor’s office. Nearly one year later (December 2013), the State disclosed to Larkin that it had eavesdropped on privileged communications between him and his attorney. 

He moved to disqualify the entire prosecutor's office, which caused some delay that was attributed to the defendant

In October 2014, the trial court denied Larkin’s motions, but it suppressed: 1) statements Larkin made to police after he invoked the right to counsel but before counsel arrived; and 2) the recorded conversation between Larkin and counsel.

The case then went through a complex procedural quagmire. 

The issues of misconduct led to dismissal by the lower court, a remedy reversed here

In this case, there is no dispute that the State committed misconduct and on numerous occasions. First, police continued to question Larkin after he invoked his right to counsel. Then, Larkin’s private conversation with his attorney was recorded and listened to by several individuals at the prosecutor’s office. The situation was compounded when the conversation was transcribed and further distributed. Additionally, there is evidence in the record reflecting potential evidence tampering. That is, one officer instructed another to change his statement about his prior  interaction with Larkin’s wife. There is also evidence that a piece of physical evidence, the safe containing the gun used to shoot Stacey, was tampered with while in the State’s custody and prior to allowing Larkin an opportunity to examine it.

It is especially troubling to this Court that one of the prosecuting attorneys involved in this matter was also involved in the misconduct inTaylor. However, the discipline of attorneys is a separate matter than the matter at hand. As we noted in Taylor: “what constitutes an effective remedy for [defendant] is not necessarily what would constitute a proportionate punishment for the State. Our concern is to ensure the State’s egregious misconduct does not actually prejudice [defendant]. . . .” Taylor at 1024. Accordingly, here we must decide whether the State’s misconduct is so severe that Larkin’s criminal charges should be dismissed over it. Balancing Larkin’s rights with the public’s interest in seeking justice for victims and applying our precedent, we find that outright dismissal is not the appropriate remedy in this case.


We find that the delays associated with Larkin’s interlocutory appeal and motion for change of judge are chargeable to Larkin. As such, the Criminal Rule 4(C) period had not expired before Larkin agreed to a June 2016 trial date. Thus, his motion for discharge should have been denied.

We further find that Taylor applies to this case and outright dismissal is not the appropriate remedy for the State’s misconduct. Instead, the trial court is to assess each piece of evidence to determine whether it is tainted by the State’s misconduct. If it is, the State shall be afforded the opportunity to rebut the presumption of prejudice by proof beyond a reasonable doubt. Failing that, the testimony or evidence at issue will be suppressed.

The unethical prosecutor was suspended for four years without automatic reinstatement. 

There is, quite thankfully, scant precedent in our disciplinary annals for misconduct such as this. As we wrote in Taylor, the constitutional imperative of honoring and protecting the confidentiality of a defendant’s communications with counsel is a principle “[w]e would have hoped . . . too obvious to mention.” Id. at 1023. We described the war room eavesdropping in Taylor using words such as “egregious,” “flagrant,” “unconscionable,” “shameful,” “abhorrent,” and “reprehensible.” While Smith and Keiffner confirm that these descriptions are not dispositive in the disciplinary context, nothing in the “more complete picture” adduced during these disciplinary proceedings leads us to view Respondent’s conduct with any less outrage or disapproval. In many respects, these proceedings have painted an even more alarming picture of Respondent, in that they show Respondent gradually has retreated from his initial self-report to the Commission and has given evasive and inconsistent explanations and statements regarding the war room eavesdropping. As aptly found by the hearing officer, “Respondent’s ever evolving narrative points to a lack of honesty.” (Report at 15). reported on the case. (Mike Frisch)

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