The Calumet Law Blog previously reviewed (as an Appellate Case Note) the unanimous COA opinion of September 30, 2015 in Larkin v. State, ___ N.E.3d ___ (Ind.Ct.App. 2015), an interlocutory appeal. The title to that post was “Sixth Amendment Outrage Fizzles in the COA.” The addendum to that post mentioned an eerily similar appeal decided June 10, 2015 by a divided COA panel in State v. Taylor, 35 N.E.3d 287 (Ind.Ct.App. 2015). In Larkin the COA Opinion was “certified” November 20, 2015. In Taylor a Transfer Opinion was handed down by the SCOTSI on March 30, 2016. This article pertains to both cases and the involvement of LaPorte County Deputy Prosecutor Robert Neary in each.
The Larkin case involved a homicide suspect in custody who offered to speak to police if he would be charged with manslaughter rather than murder. Apparently some sufficient agreement was reached, and Larkin was interviewed. During a break in the interview LaPorte County Prosecutor Bob Szilagyi, Chief Deputy Prosecutor Robert Neary, and police left the room to the suspect and his attorneys. The video tape was not turned off during the break, such that the supposedly private conversation that Larkin had with his attorneys was recorded.
As expected, Larkin was charged with voluntary manslaughter. Also as expected, a police investigator watched the interview, and a copy reached Robert Neary. It is unclear from the COA Opinion whether Mr. Neary watched the video (and its illicit recording of the attorney/client discussion) before turning it over to a court reporter for transcription. When that court reporter discovered the attorney/client discussion, she stopped transcribing and informed Robert Neary. The transcript was then completed without the attorney/client discussion.
Robert Neary reviewed the whole video for trial preparation and only belatedly bothered to inform defense counsel. Defense counsel responded with an ambitious motion to dismiss the voluntary manslaughter charge. The Prosecutor replied with a harmless error claim asserting that nothing new was learned from the illicit portion of the video tape.
Defense counsel added a motion to disqualify the Prosecutor and his entire office from the case. The trial court suppressed the illicit portion of the tape (but not the remainder) while denying the motions to dismiss and to disqualify. Larkin’s interlocutory appeal followed. On evidence of an intervening election and a new elected County Prosecutor, the COA declared the motion to disqualify to be moot and dismissed the appeal. In dicta the COA Opinion reasoned that “the circumstances here are unusual enough that they are not likely to recur.” The “circumstances” were not so unusual in LaPorte County, as the COA could well have noted from its own Opinion of June 10, 2015 in the Taylor case.
Brian Taylor’s grandfather delivered him and his bloody clothes to the Michigan City Police Department. Brian declined to give a statement. Police learned that Brian’s girlfriend had been shot to death. While Brian remained in custody, an attorney arrived to confer with him. The attorney met with Brian in an interview room. An officer advised him to flip a toggle switch for privacy. The switch was flipped but there was no privacy.
As Brian and his attorney conferred, Chief Deputy Prosecutor Robert Neary and a number of police officers listened from an adjacent room to the transmitted conversation. The conversation was long and relevant including details of the location of the murder weapon, which police promptly retrieved. Brian was charged with murder. Robert Neary then informed Brian’s lawyer of the eavesdropping and advised (as of March 18, 2014) that he had self-reported himself to the Indiana Disciplinary Commission.
Brian’s lawyer filed a Motion to Suppress the handgun and any other evidence obtained through the eavesdropping. The officers “took the 5th” at their depositions and/or at the suppression hearing. The State stipulated to suppression of the handgun but claimed independent sources for much other evidence. The trial court’s suppression order went so far as to bar all testimony from any police officer who had invoked his 5th Amendment privilege against self-incrimination at a deposition or at the suppression hearing. A divided COA panel affirmed that controversial sanction. On March 30, 2016 the SCOTSI announced its Transfer Opinion reversing the trial court’s absolute bar against trial testimony from the miscreant officers, holding that they should be allowed to testify (as to matters not otherwise suppressed) if the State could prove an independent basis beyond reasonable doubt (outside the presence of the jury). It appears that the trial may proceed without any disclosure to the jury that testifying officers had pled the 5th. Notably, the Taylor Opinion included an assessment of Mr. Neary’s malfeasance as “reprehensible.”
The LaPorte County Prosecutor’s Office has some interesting history with malfeasance. After his election in 2010 former Prosecutor Bob Szilagyi found himself suspended from the practice of law for 60 days for having forged a deed and a notarization in relation to his own divorce. His Chief Deputy Robert Neary was remarkably appointed by the SCOTSI to assume the duties of County Prosecutor during that period of suspension. There is now a pending disciplinary case against Robert Neary. I will offer my speculation that the Larkin and Taylor cases are somehow involved. According to the Roll of Attorneys Robert Neary is still with the LaPorte County Prosecutor’s Office. The Prosecutor’s web site appears not to list staff attorneys. I look forward to reading what findings will be made (in the disciplinary case) and what discipline (if any) will be imposed.
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