A permanent writ of mandamus and prohibition was issued by the Indiana Supreme Court on October 16, 2009, requiring the Delaware Circuit Court No. 5 and Judge Thomas A. Cannon, Jr. to vacate the appointment of J.A. Cummins as special prosecutor in the case against Adrian D. Kirtz, who faced charges related to cocaine offenses. The court ordered the appointment of a different individual as special prosecutor in compliance with Indiana Code Section 33-39-1-6.
The background reveals that Kirtz was charged in January 2007, and in March 2009, a request for a special prosecutor was filed due to Kirtz's role as a cooperating witness in various cases. The trial court appointed Cummins without a hearing, prompting Kirtz to object. After a hearing, the court overruled Kirtz's objection, leading him to seek a writ to vacate the appointment.
The court's discussion highlighted that the appointment of a special prosecutor is sometimes necessary to maintain justice and public confidence in the system. According to the relevant statute, a special prosecutor can be appointed if requested by the prosecuting attorney and if the court finds it necessary to avoid any appearance of impropriety. Special prosecutors possess the same powers as regular prosecutors but are limited to specific cases. Eligibility for appointment includes being a prosecutor from a different county or a qualified senior prosecuting attorney.
A senior prosecuting attorney can be appointed as a special prosecutor in a county where they previously served, provided the court determines there's no appearance of impropriety (Ind. Code. 33-39-1-6(d)). Kirtz contested Cummins's appointment as special prosecutor, citing his status as a senior prosecutor and alleging that his prior role in the Delaware County Prosecutor's office, along with his familial relationship with attorney Michael Alexander, created an appearance of impropriety. The trial court found that Cummins's previous employment did not raise such concerns, noting he had left the office prior to the charges against Kirtz being filed and had no knowledge of Kirtz's investigation. However, the court did identify an appearance of impropriety stemming from Cummins's long-standing familial connection to Alexander, who was charged with conspiracy to commit bribery. Kirtz had testified against Alexander, and Cummins attended parts of Alexander's trial. Evidence indicated that Cummins had a supportive stance towards Alexander, advising caution in the investigation against him, which contributed to the perception of impropriety. Despite the trial court's conclusion that the relationship did not create an appearance of impropriety, the evidence suggested otherwise, as Cummins had previously expressed support for Alexander and had taken particular interest in his case.
Special Prosecutor James Luttrull, Jr. was tasked with prosecuting Alexander's case, but deputy prosecutor Cummins expressed doubt about the existence of probable cause against Alexander based on a reviewed affidavit. Although Cummins did not recall a specific conversation regarding this, he acknowledged it could have occurred. He attended Alexander's trial primarily to support his family, including Alexander's children and other relatives. Cummins was later appointed to prosecute Kirtz shortly after Kirtz testified against Cummins's brother-in-law in a felony case. The critical issue is not Cummins's personal motivations or ability to prosecute fairly but rather the appearance of impropriety stemming from his familial connections and the circumstances surrounding Kirtz's prosecution. The totality of these circumstances raises reasonable questions about whether Cummins's relationships could influence his prosecutorial discretion. Citing previous cases, the court emphasized the importance of public trust in the judicial process and the need for prosecutors to disqualify themselves when serious doubts about their impartiality exist. Consequently, the Court granted a writ of mandamus and prohibition regarding Cummins's appointment, with concurrence from the Chief Justice and other justices.
