It was June of 2015 (prior to the CLB launch) when the COA decided Taylor v. State, 35 N.E.3d 287 (Ind.Ct.App. 2015). Then in March of 2016 the SCOTSI handed down its Transfer decision in Taylor at 49 N.E.3d 1019 (Ind. 2016). In September of 2015 the COA dismissed (as moot) an interlocutory appeal in Larkin v. State, 43 N.E.3d 1281 (Ind.Ct.App. 2015) (“Larkin I”). Both cases were LaPorte County homicide prosecutions involving deputy prosecutor Robert Neary, and both cases involved Robert Neary and other state agents listening illicitly to private, privileged conversation between a homicide suspect and his attorney. Moreover, both cases have received attention from the CLB.
Larkin I was described rightly in the CLB as a “Sixth Amendment Outrage” that “fizzled” in the COA. John Larkin’s interlocutory appeal sought disqualification of the LaPorte County Prosecutor who (by the time of the appellate decision) was a lame duck serving the last weeks of his term. The COA dismissed Larkin’s appeal as moot, but that would not be the end of the controversy over the privileged attorney-client conversation that was videotaped, transcribed, copied, and disseminated.
After remand from the COA and the entry of a new (special) prosecutor and a new (special) judge, John Larkin filed a Criminal Rule 4(C) Motion for Discharge for Delay and a Motion to Dismiss citing impairment of the Sixth Amendment right to counsel. The trial court granted both motions, and the State appealed.
On June 7, 2017 the COA handed down 50 (slip opinion) pages of split decision in State v. Larkin (Larkin II). The COA majority affirmed the trial court on both the discharge for delay and the (redundant) dismissal. The doctrine of judicial economy would have been better served by deferring the constitutional issues after the CR 4(C) holding.
The CLB declares the discharge-for-delay portion of the COA opinion (and dissent) to be uninteresting and too peculiar to the circumstances of the case to carry much weight as precedent. On the other hand, the dismissal on constitutional grounds is CLB-worthy.
With respect to his Motion to Dismiss below Larkin cited the right-to-counsel provisions of the Sixth Amendment and of Article 1 Section 13 of the Indiana Constitution. The COA, however, seems to have viewed the issue as Fifth Amendment (fair trial) due process. Apart from the illicit videotaping and related misconduct, the prosecution (or police) in Larkin were found responsible for: evidence tampering; intended witness tampering; further violating Larkin’s Sixth Amendment rights by continuing an interrogation after he invoked his right to counsel; and breaking the pledge to redact illicit content from the case file prior to its transfer to a special prosecutor. There was no doubt that Larkin’s constitutional rights were abused. The dispute was over what remedy or sanction to impose.
The State’s appeal of the trial court’s dismissal order asserted that there should have been a “Taylor hearing” to afford the prosecution the opportunity (per the SCOTSI ruling in Taylor) to overcome a presumption of prejudice (from the State conduct) with proof beyond reasonable doubt to the contrary. Though requesting a Taylor hearing below the (special) prosecutor probably waived any claim of error (in the denial of a Taylor hearing) by failing to make an offer of proof to demonstrate how he would propose to prove the absence of prejudice. While not articulating any discernible offer of proof, the (special) prosecutor below suggested his familiarity with illicit file contents that were supposed to have been purged before he could acquire tainted knowledge. Here is a paradox not mentioned by the COA. No special prosecutor innocent of the tainted knowledge acquired by his predecessors could possibly meet the Taylor hearing burden of proving that such (unknown) information was nonprejudicial. On the other hand, a special prosecutor fully versed in the tainted knowledge should thereby be disqualified from the case. Being responsible for this paradox by its own misconduct, the State deserves no relief from it.
The COA acknowledged the propriety of a Taylor hearing in certain cases but found the State misconduct so egregious and so multi-faceted such that Taylor would not be applied. Expect a Transfer Petition from the State. Larkin’s lawyers (including Jim Foster of Hammond) have a victory that is not yet fully secured.
A key figure in both Larkin and Taylor is attorney Robert Neary. A recent check of the online roll of attorneys suggests that he is still with the LaPorte County Prosecutor’s Office. If true, that circumstance is unfathomable to the CLB. Better news is that a disciplinary case was filed against Robert Neary and that findings have been reported by the hearing officer, Lake County’s own Judge Sheila M. Moss. When a disciplinary ruling is handed down by the SCOTSI, the CLB will cover the story from a lawyer’s perspective.