This is the sixth (6th) time that the story of John Larkin has appeared in a CLB featured article or case note. John Larkin was of interest (initially) because of his connection to the outrageous prosecutorial misconduct of former LaPorte County Deputy Prosecutor Robert Neary, who remains suspended from the practice of law as of this writing. The misconduct was in the nature of eavesdropping on the privileged conversation between an in-custody homicide suspect and his lawyer. Though the video taping of the attorney- client interview may have been inadvertent, Robert Neary later viewed the privileged portion of the tape as part of his trial preparation.
The appellate decisions commenced September 30, 2015 with Larkin v. State, 43 N.E.3d 1281 (Ind. Ct. App. 2015). The late Jim Foster of Hammond was of record on the appeal along with Marce Gonzalez, Jr. The appeal was an unsuccessful interlocutory effort to disqualify the LaPorte County Prosecutor’s Office from the voluntary manslaughter prosecution in favor of a special prosecutor to be appointed. The COA panel unanimously declined to disqualify the LaPorte County Prosecutor’s Office while suggesting the possible disqualification of Neary and one other deputy prosecutor who had actually viewed the privileged tape.
There was a similar LaPorte County homicide prosecution in the case against Brian Taylor. The SCOTSI handed down its Transfer Opinion in the State’s interlocutory appeal on March 30, 2016. See State v. Taylor, 49 N.E.3d 1019 (Ind. 2016). There the SCOTSI decided against the automatic testimonial disqualification of police officers who had eavesdropped on the privileged conversation between Brian and a lawyer and later “took the 5th” during depositions or at a suppression hearing.
Back at the Larkin prosecution the next appellate decision came from the COA June 7, 2017. State v. Larkin, 77 N.E.3d 237 (Ind. Ct. App. 2017). This was the State’s appeal after the trial court entered an order discharging Larkin pursuant to CR 4(C) and otherwise dismissing the prosecution. The divided COA panel affirmed the trial court’s orders of discharge and dismissal. Transfer would be requested and granted.
In the chronological record of events there next came the disciplinary case against Robert Neary with the SCOTSI decision of November 6, 2017. See Matter of Neary, 84 N.E.3d 1194 (Ind. 2017). From December 18, 2017 Neary was suspended from the practice of law for four (4) years without automatic reinstatement. To the CLB disbarment was the only appropriate sanction.
On June 27, 2018 there came the transfer decision from the State’s appeal of discharge and dismissal orders. The SCOTSI reversed the trial court’s orders of discharge for delay and dismissal and remanded. State v. Larkin, 100 N.E.3d 700 (Ind. 2018).
Larkin’s case went to trial. The jury found him guilty on September 13, 2019 of involuntary manslaughter. Special Judge Roger Bradford (of Porter County) sentenced Larkin to two (2) years. Larkin appealed to the COA which issued a November 9, 2020 reversal of the conviction and remanded for a judgment of acquittal. Larkin v. State, 159 N.E.3d 976 (Ind. Ct. App. 2020).
The SCOTSI affirmance of Larkin’s conviction came September 14, 2021 by way of a 4/1 majority (David J., dissenting). By this time the primary issue on appeal was whether— in this prosecution for voluntary manslaughter— it was proper to instruct the jury on involuntary manslaughter.
One lasting lesson of the Larkin saga is that a lawyer in an unfamiliar environment can never assume that his privileged conversation is not being overheard and/or taped. Another lesson is how the SCOTSI is prone to favor Transfer requests from the AG and to undo criminal case rulings (from the trial court or COA) seen as too lenient.
The CLB hopes to hear of an effort by Larkin to challenge his conviction in federal court. If Larkin’s conviction should be set aside constitutional grounds it would be just one more episode of the SCOTSI having demonstrated its insufficient appreciation of the Bill or Rights. See, for instance: the Timbs case on civil forfeiture and the 8th Amendment ban on excessive fines; and Zanders on cell phone location data and the 4th Amendment.
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