State ex rel. Kirtz v. Delaware Circuit Court No. 5
| Decision Date | 13 November 2009 |
| Docket Number | No. 18S00-0909-OR-411.,18S00-0909-OR-411. |
| Citation | 916 N.E.2d 658 |
| Parties | STATE of Indiana ex rel. Adrian D. KIRTZ, Relator, v. The DELAWARE CIRCUIT COURT NO. 5 and the Hon. Thomas A. Cannon, Jr., as Judge Thereof, Respondents. |
| Court | Indiana Supreme Court |
Jacob Dunnuck, Muncie, IN, Attorney for Relator.
Gregory F. Zoeller, Attorney General of Indiana, Cynthia Ploughe, Deputy Attorney General, Indianapolis, IN, J.A. Cummins, Special Prosecutor, Selma, IN, Attorneys for Responding party.
On October 16, 2009, this Court granted the Relator, Adrian D. Kirtz, relief by issuing a permanent writ of mandamus and prohibition requiring the Respondents, the Delaware Circuit Court No. 5 and the Honorable Thomas A. Cannon, Jr., the judge thereof, to vacate the order appointing J.A. Cummins as special prosecutor in the criminal case pending below against Kirtz and to appoint a different person to serve as special prosecutor pursuant to Indiana Code Section 33-39-1-6. The writ noted that the scheduled trial date was approaching and this Court was taking under advisement whether to issue later an order or opinion explaining the reasons for granting the writ. This opinion states those reasons.
In January 2007, the State charged Kirtz with two counts of dealing in cocaine, a Class A felony, and one count of possession of cocaine, a Class C felony. Kirtz entered a plea of not guilty. In March 2009, a Delaware County deputy prosecutor signed and filed a request for appointment of a special prosecutor. On April 1, 2009, the Delaware County Prosecutor signed and filed an amended motion for appointment of a special prosecutor. The amended motion alleged that Kirtz "has been a cooperating witness in several cases both pending and closed in both state and federal court" and that a special prosecutor should be appointed "due to the nature of those investigations and the substance of [Kirtz's] testimony, in order to avoid any appearance of im-propriety[.]" (R. 184.) That same day, the trial court granted the State's amended request, without a hearing, and appointed Cummins, a former chief deputy prosecutor in Delaware County, as special prosecutor for the case against Kirtz. Kirtz promptly objected to Cummins's appointment. Following an evidentiary hearing and arguments on Kirtz's objection, the court overruled Kirtz's objection.
Kirtz filed this original action seeking a writ requiring the trial court to vacate its appointment of Cummins and to appoint another person to serve as special prosecutor. Cummins and the Attorney General of Indiana each filed a brief opposing issuance of the writ. After considering Kirtz's petition and other application papers and the opposing briefs, we granted the writ.
To serve the ends of justice and preserve public confidence in the criminal justice system, it sometimes becomes necessary for a trial court to appoint a special prosecutor. The statute authorizing appointment of a special prosecutor provides, as relevant to this case, that a circuit or superior court judge "may appoint a special prosecutor if: (A) the prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and (B) the court finds that the appointment is necessary to avoid the appearance of impropriety[.]" Ind.Code § 33-39-1-6(b)(3). A person appointed to serve as a special prosecutor has the same powers as the regular prosecutor, though the special prosecutor's duties are limited to include only the investigation or prosecution of a particular case or particular grand jury investigation. Ind.Code § 33-39-1-6(e).
Those who may be appointed as special prosecutor are a prosecuting attorney or deputy prosecuting attorney in a county other than the county in which the person is to serve as special prosecutor, or a senior prosecuting attorney. Ind.Code § 33-39-1-6(c). A "senior prosecuting attorney" is a person who was employed for at least eight years as a prosecutor or chief deputy prosecutor and files an affidavit requesting designation as a senior prosecuting attorney in the circuit court and each superior court in a county in which the person is willing to serve as a senior prosecuting attorney. Ind.Code § 33-39-1-1(a). A senior prosecuting attorney may be appointed special prosecutor in a county where he or she previously served if the court finds that the appointment will not create the appearance of impropriety. Ind.Code § 33-39-1-6(d).
Kirtz challenged Cummins's appointment as special prosecutor on the grounds that Cummins is a senior prosecutor and that his appointment as special prosecutor created an appearance of impropriety and therefore violated Indiana Code Section 33-39-1-6(d). Specifically, Kirtz argued an appearance of impropriety arose because of Cummins's prior employment with the Delaware County Prosecutor's office and his relationship with attorney Michael Alexander, the man against whom Kirtz recently had testified in a different criminal case.
We agree with the trial court that Cummins's prior employment in the Delaware County Prosecutor's office does not create an appearance of impropriety. The evidence presented in this original action shows that Cummins served as chief deputy prosecutor in Delaware County from January 1, 1991, through December 31, 2006. The evidence also showed that Cummins left that office before the pending criminal charges against Kirtz were filed and that Cummins had no actual knowledge or involvement in the investigation of Kirtz's case.
The circumstances surrounding Cummins's relationship with Alexander, however, do create an appearance of impropriety precluding Cummins from serving as special prosecutor. The evidence shows that for nearly thirty years, Cummins has been Alexander's brother-in-law by marriage; that is, Cummins's wife is the sister of Alexander's wife. In February 2008, the State charged Alexander with conspiracy to commit bribery. When Alexander was tried during the second week of March 2009, Kirtz, a former client of Alexander's, was one of the State's material witnesses against Alexander. Kirtz testified, in effect, that Alexander and an investigator in Alexander's law office agreed to pay Kirtz money and make certain arrangements for Kirtz in exchange for Kirtz and his relatives changing their statements in an investigation of another client's case. Cummins attended several days of Alexander's trial and was present when Kirtz testified against Alexander. Alexander was found not guilty. Just a few weeks later, Cummins was appointed to prosecute Kirtz.
The trial court concluded that despite...
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