“Prosecutorial misconduct is far too common in Marion County,” writes Indiana University law professor Joel Schumm in a recent post for Indiana Law Blog, “…what is lost in the Ryan opinion — and most other opinions involving prosecutorial misconduct — is whether the reviewing court is even concerned or troubled by the prosecutor’s conduct or if prosecutors can safely continue the same conduct with impunity.”
Schumm paints a scene in which Marion County prosecutors under County Prosecutor Terry Curry are routinely engaging in unethical behavior. According to research done by Schumm, there have been 22 cases in Marion County since 2012 in which “an Indiana appellate court has found, or assumed without deciding, one or more instances of improper conduct.”
The list of 22 cases is here.
Curry is running for reelection. His challenger, Duane Merchant, seized on Schumm’s report, issuing a press release in which he vowed to “make it clear from day one that prosecutorial misconduct will not be tolerated and those who violate those rules will be held accountable.”
Schumm’s post outlines the ways in which the Court of Appeals and Disciplinary Commission are failing to provide accountability for or deterrence of prosecutor misconduct, finding that discipline of prosecutors in Indiana is rare. He makes this terrific point about the role of “harmless error” (a court’s finding that though something was unfair, it wasn’t bad enough to warrant a new trial) in creating confusion about what conduct is or isn’t permissible:
“Opinions that assume without deciding that comments were misconduct but nevertheless affirm the convictions because the error was harmless or did not make a fair trial impossible leave defense lawyers, prosecutors, and trial judges wondering if the statement or other conduct was permissible or not. Can the prosecutor say the same thing in a future trial? Should the defense lawyer object? Should a trial judge sustain an objection to it?”
Marion isn’t the only county in Indiana where prosecutors are coming under fire for unethical behavior. In April we reported on allegations against Warrick County Prosecutor JoAnne Krantz that her office was routinely withholding exculpatory information from defendants. But courts do not seem prepared to follow findings of misconduct with the promise of discipline.
Schumm’s piece is well worth a read in full (here). It explains how various interest groups (elected prosecutors, courts, disciplinary committees, defense lawyers and the media) let prosecutorial misconduct in Indiana go unpunished.