Book ‘Em, Danno: Prosecutor’s Book Deal Draws Reprimand

A public reprimand has been imposed by the Indiana Supreme Court

At all relevant times, Respondent was the elected prosecutor for Floyd County. The charges in this disciplinary action trace their genesis to the prosecution of David Camm, a former police officer charged with murdering his wife and two minor children. Camm twice was convicted, but in each instance his convictions were reversed on appeal. Camm v. State, 812 N.E.2d 1127 (Ind. Ct. App. 2004), trans. denied; Camm v. State, 908 N.E.2d 215 (Ind. 2009) (“Camm II”). Camm ultimately was acquitted following a third trial in 2013. Respondent prosecuted the second trial, and he initially continued to represent the State during proceedings in advance of the third trial until his removal from the case due to the conflict of interest described below.

Days after the jury in the second trial returned a guilty verdict, Respondent – with the intent to write and publish a book about the Camm case – entered into an agreement with “Literary Agent.” Thereafter, Respondent continued to represent the State in post-trial proceedings in the trial court and assisted the Attorney General during appellate proceedings in Camm II. In early June 2009, while Camm II was pending before this Court, Respondent entered a publication agreement with “Publisher.” After we issued our decision reversing Camm’s convictions and remanding for a third trial, Respondent wrote to Literary Agent, expressing his belief that “this is now a bigger story” and asking Literary Agent to seek a “pushed back time frame” for publication and “to push for something more out of the contract.” However, Publisher instead elected to terminate the book contract.

Following the conclusion of appellate proceedings in Camm II, in December 2009 Respondent refiled murder charges against Camm, and Camm petitioned for appointment of a special prosecutor. In January 2011, the trial court denied Camm’s request for a special prosecutor. Camm pursued an interlocutory appeal, and in November 2011 the Court of Appeals reversed the trial court and ordered Respondent’s removal from the case. Camm v. State, 957 N.E.2d 205 (Ind. Ct. App. 2011), trans. denied.

Meanwhile, the Commission began investigating a disciplinary grievance filed against Respondent by Camm’s counsel. Respondent retained private counsel to represent him during this investigation and later submitted six payment vouchers to the Floyd County Auditor (with his counsel’s invoices attached) seeking reimbursement of his legal fees.

The prosecutor was paid an advance of $1,700. 

Misconduct

we find sufficient support for the hearing officer’s findings and conclusions with respect to each of the charged rule violations. Accordingly, we find Respondent violated Professional Conduct Rules 1.7(a)(2), 1.8(d), and 8.4(d) with respect to Count 1, and we find in favor of Respondent on Count 2.

Indiana Rule 1.8(d) provides

Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

Count 2 involved alleged false statements in seeking reimbursement.

Sanction

The hearing officer recommended that Respondent receive a public reprimand. The Commission argues he should be suspended. The violation is serious and adversely affected the administration of justice in this case. However, noting Respondent’s misconduct occurred in connection with a single, unusual case and is an aberration from what otherwise has been a long and distinguished career as a public servant, we conclude a suspension is not warranted in this case. Thus, for Respondent’s professional misconduct, the Court imposes a public reprimand. 

The Indiana Court of Appeals reversed the denial of Camm’s motion to appoint a special prosecutor in November 2011.

The trial court held that the cancellation of the [book] contract weighs against finding an actual conflict of interest, and, likewise, the State argues that the cancellation of the contract precludes this court from finding that an actual conflict of interest exists. Notwithstanding the State’s contention, this is a bell that cannot be unrung. Henderson signed a contract to author and publish a book about the Camm case prior to Camm’s third retrial, and, in doing so, he permanently compromised his ability to advocate on behalf of the people of the State of Indiana in this trial.

Were we to hold otherwise, there would be more chapters to this book. As a result of having signed the literary contract, Henderson has provided Camm with a defense strategy that he would not otherwise have. Camm may now contend that Henderson’s literary contract, albeit cancelled, and his commitment to write a book influenced his decision to prosecute Camm for a third time. Henderson has made himself an issue at trial, and thus cannot continue to serve as prosecutor in this case.

Our decision today does not rest solely on whether or not there was a contract in place. Henderson has established a personal agenda to both write this book and ensure that Camm is prosecuted. Henderson’s own words are evidence of that agenda. In his email to his literary agent following reversal, Henderson stated: “I am committed to writing the book as is [co-author] Damon. A tremendous amount of work has been done to this point. It’s a great story that needs to be told. . . . In addition, as you and Damon have discussed, this is now a bigger story.” Appellant’s Ex. F at G. And, in a statement to the media, Henderson wrote that he was “more convinced now than ever that when this matter is completed, the unedited version of events needs to be told.” Appellant’s Ex. J at K. 

As prosecutor, Henderson should not have a personal interest in this case separate from his professional role as prosecutor. In other words, Henderson cannot be both committed to writing a book about the Camm case and serve as prosecutor. Such a personal interest creates an actual conflict of interest with his duties as prosecutor.

Wikipedia has information about the Camm criminal case. Mike Frisch)