A Personal Question Leads To An Abuse Of Power
The Indiana Supreme Court imposed a 90-day suspension with automatic reinstatement of a (retired) prosecutor who had abused his authority
We find that Respondent, Joseph Burton, committed attorney misconduct by abusing his prosecutorial authority as part of a campaign of retaliation against a detective. For this misconduct, we conclude that Respondent should be suspended from the practice of law for 90 days with automatic reinstatement.
Among the dramatis personae
J. Dirk Carnahan currently is, and at all relevant times was, the elected prosecutor in Knox County. Respondent was Carnahan’s chief deputy prosecutor in Knox County until he “retired” from that position during the progression of events described below
A defendant in a drug case was interviewed by the detective
During the interview, Detective asked Defendant if either Carnahan or Respondent had engaged in a sexual relationship with her. Defendant indicated she had never been involved in such a relationship with Carnahan but that she had been engaged in an on-and-off sexual relationship with Respondent for about 20 years. At the conclusion of the interview Detective suggested that it would not be a good idea for Defendant to tell Respondent about the interview.
In March 2018, after she had been convicted, sentenced, and incarcerated in the Greene County matter, Defendant told Respondent about her interview with Detective. Referring to Detective, Respondent told Defendant “that little bitch’s got it coming now; I’ll have that bitch by her fucking hair now.” He also told Defendant that Carnahan “went berserk” after learning of the interview and planned to escalate the matter to VPD’s Chief of Police. Respondent instructed Defendant to supply him and Carnahan with a statement about the interview, and Respondent provided Defendant with some specific guidance on what that statement should say. Defendant supplied this letter a few days later.
In early April 2018, after receiving the letter from Defendant, Carnahan filed with the VPD an Employee Misconduct Complaint against Detective
Beginning in March 2018 and continuing through April, Respondent and Defendant discussed the possibilities of Defendant’s sentence being modified and Defendant living with Respondent on electronic monitoring home detention instead of serving the remainder of her sentence on work release. Respondent agreed to talk with the Greene County Prosecutor about this and told Defendant “you’ve got an ally in the right place, after you sent that letter.” And on April 5, after the complaint was filed with
the VPD, Respondent called Defendant and instructed her to tell any future investigators that Respondent was Defendant’s attorney and any inquiries should be referred to him. During all of these events, Respondent was still the chief deputy prosecutor in Knox County; he “retired” from that position effective April 21.
VPD investigators met with Defendant in prison on May 7. On May 8, Respondent instructed Defendant not to speak with the investigators again. Respondent also instructed Defendant to write another letter to Carnahan regarding the May 7 interview and provided guidance on what to include in the letter. Defendant supplied this letter to Carnahan a few days later.
The attorney had stipulated to the facts and rule violations.
The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:
1.7(a)(2): Representing a client when there is a concurrent conflict of interest.
8.4(d): Engaging in conduct prejudicial to the administration of justice.
8.4(e): Stating or implying an ability to improperly influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct.
The court
Respondent…abused his position in an effort to retaliate against a detective who, acting upon information provided to her by another law enforcement agency, was seeking to determine whether Respondent or Carnahan had attempted to trade consideration of leniency in Defendant’s criminal matters over the years for sexual contact. Like the chief deputy in Christoff and Holmes, Respondent’s overriding motivation was not to further the public interest but rather to protect his own self-interest…
Taking into account the nature of Respondent’s misconduct, the range of sanctions imposed in prior cases involving similar misconduct, and the stipulated factors in aggravation and mitigation, we are persuaded that the mid-range suspension with automatic reinstatement agreed upon by the parties is an appropriate sanction in this case.
The Indiana Lawyer reported on the decision and noted
Carnahan also faces a disciplinary complaint filed against him, which remains pending in a separate matter, according to a footnote in the per curiam order. “Our opinion today, accepting the conditional agreement reached by the Commission and Respondent, binds only the parties to this case,” the court said in a footnote.
(Mike Frisch)