Petition — Wireman v. Indiana Supreme Court Disciplinary Commission

Supreme Court brief1978

Ask Donna

What actually matters in this document.

Text

Sapreme Court, US? rt

77-1257 Gan. |

IN THE SUPREME COURT...

RODAK, JR., CLERK |

OF THE UNITED STATES

In The Matter of Lewis T. Wireman

PETITION FOR

WRIT OF CERTIORARI

To the Supreme Court of Indiana

Franklin D. Shipman

Counsel for Petitioner

141 S. Adams

Marion, Ind. 46952

Franklin D. Shipman poe

Counsel of Record

141 S. Adams

Marion, Ind. 46952

March 10, 1978

INDEX

PAGE

Opinions Below...ccccccccccccsccccce 6

Se EE, « 6 ch.crrsciced 6 Cdidbss ee és 6

Question Presented... ccecesscseees 7

Statutes Involved... cccesccssccees 10

— Statement... .ccccccccscccscsceseses 19

Reasons for Granting This Writ..... 20

CONCLUSION. cccccccsccccccccccccsece 41

Appendix A(1)-Opinion and judgment

of aie Court of Indiana of

October 14 DUT h 6 b:b bd 000s 66 BS 00 44

(2}-order of Supreme Court

of indian of February 21, 1978

granting Commission's motion to

strike Petitioner's Motion to

correct OCPTPOrBiscccceccessssvsssese 42

(3)= Order of John Paul

Stevens Associate Justicé of the

Suprame Court of United States of

a etenit 12, 1978, granting

extension of time to file Petition

for Writ of Certiorari.....ssece.

Appendix B(1)-Petitioner's Assignment

of error's concerning his denial of

GUC PPOCESS..rsceccsvcsessesesecs

(2)-Petitioner's Assignment

of error concerning the Exclusion

of testimony of his witnesses Paul

Banton and Phyllis Wireman

CONSTITUTION

U.S. Constitution

Article IV ) ee ree ee

Pifth Amendment..........%

Sixth Amendment.......ee.

Fourteenth Amendment.....

Indiana Constitution

Agesiele 3. Shewse ctv evese

Aeetaiea 2. Ghc.ccbecdeeer<

Agesaile 7. GAS. ccritasvervee

TABLE OF CASES

Alford v. United States 282 U.S.

687, 75 L.Ed. 624 (TOS. wae ce cbebe

Baker v. Carr 369 U.S. 186, 7 L.Ed.

2d 663, 82 S.Ct. 691 (1962)......

Barnett v. Hepburn 121 Okla. 268,

249 p 921 CRGRS?s «ods btuneees ode

Braswell v. State 400 U.S. 873 27

L.Ed.2d lll, 91 S.Ct. 106 (1970..

Braswell v. Wainwright 463 F.2d 1148

(5th Cir. 1972)

Brookhart v. Janis 384 U.S. 1, 16

L.Ed.2d 314, 86 S.Ct. 1285 (1966).

Bruce v State 230 Ind. 413, 104

N.E.2d 129 (1952)

Burns v. Ohio 360 U.S. 252 3L.

Ed.2d 1209, 79 S.Ct. 1164 (1959).

In Re Carney 182 Va. 907, 30 S.E.

2d 789 CIOS d oc Kc Sob esadsdasecceos

Chapman v. California 386 U.S. 18,

17 L.Ed.2d 705, 87 S.Ct. 824

CAD dD ccccccccdbesedeteodtee ce se

In Re Chappel 33 N.E.2d 393 (1930).

Davis v. Alaska 415 U.S. 308,

39 L.Ed.2d 347, 94 S.Ct. 1105

CITE cccccccccccceeeecoeusetsedee

Douglas v. Alabama 380 U.S. 415,

13 L.Ed.2a 934, 85 S.Ct. 1074

(1965S) -ccccccccccessccccccececees

Faretta v. California 422 U.S. 806,

45 L.Ed.2d 562, 95 saiaias 2525

COVER ocnsansdksenkeeeans 6oneede 31,32

Gilmore v. State 230 Ind. 454, 104

N.E.2d 127 LEUUO be'owdc cbc adobe bee

Johnson v. gl 393 U.S. 483 21

L.Ed.2d 718, 89 S.Ct. 747 (1969).

Johnson v. Mooney 241 S.W. 308 (1922).

— “yma v. Kepler 41 Ind. 341

Law Students Civil Rights Research

Council Inc. v. Wadmond 401 U.S.

154, 27 L.Ed.2d 749, 91 S.Ct.

720 COE Rac ois wince eds othe Gobiited oe e

Mayer v. Chicago 404 U.S. 189 30

L.Ed.2d 372, 92 S.Ct. 410 (1971)

In Re McGarry 380 Ill. 359, 44 N.E.

ed 7 Pt acgiceettc gs. abate

McMillen v. Diehl 128 Ohio St. 212,

190 N.E. 567 Cee twats chove ccs

In Re Murchison 349 U.S. 133, 99

L.Ed.2d 942, 75 S.Ct. 623 (1955).

In Re Murray 362 N.E.

2a 128 CRUE T Hc coos cecetesusecet%e

People v. Baron 130 Ill. App. 588,

264 N.E.2d 423 CROTOP cs ch soveovese

People v. District Court In and

County of Larimer 103 Cal. Rptr

645, 27 Ca. 3d 193, 527 P.2d

50 SeeNS et cree te Tee

People Ex rel Leonard v. Papp 386

Mick 672, 194 N.W.2d 693 (1972)..

People v. Stinger 22 Ill. App. 2rd

371, 317 N.E.2a 340 (1976).......

In Re Ruffalo 390 U.S. 544, 20 L.

Ed.2d 117, 88 S.Ct. 1222 (1968)..

Smith v. Superior Court 101 Ariz.

559, 522 P.2d 123 (1967).........

Smith v. United States, 331 F.2d

265 (8th Cir. Din + 2.¢6né6@e0¢ 0 ¢

Spevack v. Klein 385 U.S. 511, 17

L.Ed.2d 574, 87 S.Ct. 625........ 29,32

State v. Crossland 152 Ohio St.

109, 88 N.E.2d 289 (1949)........

State v. Dearth 201 Ind.1l, 164 N.E.

489 (1GB9) « wee cde shbdees 006 taueue

State ex rel Gremillion v. O'Hara

252 La. 540, 211 So.2d 641 (1968)

State ex rel Monongahela Valley

Traction Co. v. Beard 84 W.Va.

312, 99 S.E. 452 (1919)... eeeee

State v. Patterson 181 Ind. 660,

105 N.E. 228 Co) gee ae

Thompson v. Louisville 362 U.S.

199, 4 L.Ed.2d 654, 80 S.Ct.

624 (1066) . ac odd0a cdbbbedbananinecd

In Re Troy 306 N.E.2d 203 (1973)...

United States v. Cardillo 316 F.

2a 606 (2nd Cir) cert den 3]

S U.S. 822, 11 L.Ed.2d 55 84

S.Ct. 60 CIGOS) -ccccececeshbabseos

Vachun v. New Hampshire 414 U.S.

478, 38 L.Ed.2d 666, 94 S.Ct.

644 (29T2) ac dic dene sc beeesbive ot

Vitarelli v. Seaton 359 U.S. 535,

3 L.Ed.2d 1012, 79 S.Ct. 968

TRORD) 0 cccenntee senna

Washington v. Texas 388 U.S. 14

18 L.Ed.2d 1019, 87 S.Ct. 1920

CLOST Veoscctedondséosac eee

Willner v. Committee on Character

& Fitness 373 U.S. 96, 10 L.Ed.

2d 224, 83 S.Ct. 1175 (1963).....

STATUTES.

PAGE

Federal Statutes

28 U.S.C. §1257(3)....... 13

State Statutes

Indiana Shield Law

Burns Indiana Statutes

Annotated, Code Edition

34-3-5-1 34-3-5-1 (2-

Dh Pet hh ehh ees eenecs 14

Burns Indiana Statutes

Annotated Code Edition

35-1-25-2 (9-1303)....... 15

CODES OF PROFESSIONAL CONDUCT

Code of Professional Responsibility,

Admission and Disciplinary Rule

(DR) 1-102 Misconduct ..cccccccccs 16

Admission and Discipline Rule (DR)

7-105 Avoiding Even the Appearance

of IBDROPEAET +++ vo esrerersrrces + 16

Admission and Discipline Rule 23

Section itaehthabtekbbssdstiebce 17

Admission and Discipline Rule 23,

Section Dil tha kena h idan h b6oe6 oo 18

Admission and Discipline Rule 23

Section 13A, Section 13 18

CODE OF JUDICIAL CONDUCT

Canon I Avoidance of Impropriety... 19

Canon 6. e*e@eeeenreenseenteneeneenenteee@#*#e#esee#*ee#e#*e#ee?#e 19

Canon 15. eeeeeeeneenereeneenteneneeeeneeene 19

No. A~-590

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

IN RE WIREMAN °

PETITION FOR A WRIT OF

CERTIORARI TO THE

SUPREME COURT OF INDIANA

TO THE HONORABLE, THE CHIEF JUSTICE and

ASSOCIATE JUSTICES of the SUPREME COURT

OF THE UNITED STATES

Lewis T. Wireman, the petitioner here-

in prays that @ writ of certiorari issue

to review the judgment of the Supreme

Court of Indiana entered in the above

entitled case on October 14, 1977.

OPINION BELOW

The opinion of the Supreme Court of

Indiana is reported at 367 NE 2nd 1368 and

is printed in Appendix A hereto infra page

- The judgment of the Supreme Vourt

of Indiana is printed in Appendix a here-

to infra page 44 °

JURISDICTION

The judgment of the ~»upreme Court of

Indiana was rendered on October 14, 1977.

Petitioner filed a motion to correct irror

on December 16, 1977. ‘cause the Disce

iplinary tules of the Supreme Court of

Indiana were unclear as to whether or not

a Motion to Vorrect Krrors was available

to Petitioner to request reconsideration

by the Supreme Court of Indiana of its

decision on October 14, 1977, Petitioner

submitted an Application for Extension of

ime to file Petition for Vertiorari. This

court granted said extension of time by

an order of Justice Stevens. Said extension

of time was granted for the period

through March 13, 1978. (he order is

printed in Appendix A hereto infra page

). On February 22, 1978 the Supreme

ourt of Indiana ruled that a Motion to

Correct Errors is not appropriate under

the Disciplinary “ules of the Supreme

Court of indiana. (+he order is printed

in Appendix A infra at page 42.)

The jurisdiction of the Court is in-

volked under the provisions of 28 U.S.C.

$ 1257 (3).

QUESTIONS

Petitioner respectfully submits that

the following questions concerning depriv-

ation of his rights and privileges under

the United States Yonstitution are

presented:

(1) Was Petitioner denied his right

to a fair and impartial hearing under the

Fifth and Fourteenth Amendments of the

United States Court Action by the rulings

of the Hearing Officer concerning:

(a) the admissibility of hearsay

testimony proffered by the

Disciplinary Commission and by

the Petitioner.

(bo) The admissibility of testimony

of witnesses who had given pre-

vious grand jury testimony on

the matters.

(c)

(d)

(e)

(f)

(g)

(h)

(1)

(2)

the Application of Rules of

evidence.

the scope of cross-examination

of witnesses.

Petitioner's motion to strike

direct testimony of Disciplinery

Commission witness David Banton

whom Petitioner had no op-

portunity to cross-examine.

restriction of testimony of

Petitioner's witness Paul Banton

and Phyllis Wireman to matters not

previously testified to during

the disciplinary proceedings.

Exclusion of any testimony prof-

fered by Petitioner concerning an

alleged political conspiracy

against Petitioner, including any

direct examination of reporter who

filed initial grievances against

him and direct testimony proffered

to prove waiver by said reporter

of any disclosure immunities

under the Indiana Shield Law.

Petitioner's motion to dismiss

based on failure of Disciplinary

Commission to strictly conform to

provisions of the Disciplinary

Rules concerning notice, findings

of probable cause, and commence-

ment of che hearing.

denial of effective pre-trial

discovery.

Was the Petitioner deprived of his

rights of confrontation under the Sixth and

Fourteenth Amendment by the rulings of the

Hearing Officer concerning:

(a)

His cross+examination of witn on

matters relating to their grant

jury testimony. J

(b) Petitioner's motion to strike

direct testimony of Disciplinary

Commission witness David Banton

who disappeared before completion

of his direct testimony.

had filed initial grievances

against him.

(3) Was Petitioner denied his right

under the Sixth and Fourteenth Amendment

to present favorable witness on his own

behalf by the Hearing Officer's rulings

concerning:

(a) Restriction of testimony of

Petitioner's witnesses Paul Banton

and Phylis Wireman to matters not

previously testified about by

other witnesses where witness Paul

Banton was Petitioner's only cor-

raborating witness on criminal

allegations against him.

(b) Excluding any testimony of

Petitioner's witness_on’ alleged

political sehapieegt ngainct

Petitioner. |

by Petitioner's witness concerning

waiver by reporters of any dis-

closure immunities they may have

under the Indiana Shield Law.

(4) Does Due Process of Law Under the

fifth and *ourteenth Amendment mandate

that the Code of Professionart Kesponsib-

ility, the Code of Judicia!’ >and any

statutory regulations of judicial conduct

must be strictly construed.

(5) Does the assumption of Original

Jurisdiction by the Supreme Court of

Indiana over the alleged criminal conduct

of Petitioner Violate the United States

Constitution in that Petitioner is thereby

denied ».due process under the Fifth and

Fourteenth Amendment of the United States

Constitution and equal protection under

the law secured by the Fourteenth Amend-

ment of the United States Constitution.

(6) Does the assumption of original

jurisdiction by the Supreme Court of

Indiana violate the guarantee of a Republican

form of government under ARTICLE IV ¢ 4

of the United States Constitution?

(7) Does the disbarment of Petitioner

deny him due process of law under the

Fifth and rourteenth Amendments in that

the record lacks any relevant evidences

of crucial elements of charges against

him?

CONSTITUTIONS, STATUTZS, and REGULATIONS

INVOLVED IN INSTANT PSTITION

(1) United States Constitution

ARTICLE IV 4

The United States shall guarantee

to every State in this Uniona

Republican form of vovernment,

and shall protect each of them

against Invasion; and on ap-

plication of the Legislature or

of the Executive (when the Leg-

islature cannot be convened)

against domestic violence.

Fifth Amendment

No person shall be held to answer

for a capital, or otherwise in-

famous crime, unless on a present-

ment or indictment of a Grand Jury

except in cases arising in the

land or naval forces, or in the

Militia, when in actual service

in time of War or public danger;

nor shall any person be subject

for the same offense to be twice

put in jeopardy of life or limb;

nor shall be compelled in any

criminal case to be a witness

against himself, nor be deprived

of life, liberty, or property,

without due process of law; nor

shall private property be taken

for public use, without just

compensation.

Sixth Amendment :

In all criminal prosecutions, the

accused shall enjoy the right to

a speedy and public trial, by an

impairtial jury of the State and

district wherein the crime shall

have been committed, which district

Shall have been previously ascert-

ained by law and to be informed

of the nature and cause and ac-

cusation; to be confronted with

the witnesses against him; to have

compulsory process for obtaining

witnesses in his favor, and to

have the Assistance of Counsel for

his defense.

Fourteenth Amendment

All persons born or naturlaized

in the United States, and subject

to the jurisdiction thereof, are

citizens of the United States and

of the State wherein they reside.

No State shall make or enforce any

law which shall abridge the priv-

ileges or immunities of citizens

of the United States; nor shall

any State deprive any person of

life, liberty, or property, with-

out due process of law; nor deny

to any person within its juris-

diction the equal protection of

the laws.

(2) Constitution of Indiana

Article 3 § 1

sl. Three departments.-The powers

of the Government are divided into

three separate departments; the

Legislative, the kxecutive includ-

ing the Aqministrative, and the

Judicial; and no person, charged

with official duties under one

of these departments, shall

exercise any of the functions of

another, except as in this Const-

itution expressly provided.

Article 7 § 4

s4. Jurisaiction of Supreme

Court.-The Supreme Court shall

have no original jurisdiction

except in admission to the practice

of law; discipline or disbarment

of those admitted; the unauthorized

practice of law; discipline, remov-

al and retirement of justices and

judges; supervision of the exercise

of jurisdiction by the other courts

of the State and issuance of writs

necessary or appropriate in aid

of its jurisdiction. The Supreme

Court shall exercise appellate

jurisdiction under such terms and

conditions as specified by rules

except that appeals from a judg-

ment imposing a sentence of death,

life imprisonment or imprisonment

(3)

for a term greater than ten years

Shall be taken directly to the

Supreme Court. The Supreme Court

Shall have in all appeals of crim-

inal cases, the power to review

all questions of law and to review

and revise the sentence imposed.

(as added November 3, 1970.)

article 7 § 135 Removal of Circuit

Court Judges and Proesecuting

Attorneys;

Any Judge of the Circuit Yourt or

Prosecuting Attorney, who shall

have been convicted of corruption

or other high crime, may, on

information in the name of the

State be removed from office by

the Supreme Court or in such man-

ner as may be prescribed by law.

Federal Statutes

28 U.S.C. § 1257 (3)

State courts; appeal; certiorari

Final judments or decrees rendered

by the highest court of a State in

which a decision could behad, may

be reviewed by the Supreme Court

as follows:

(1) By appeal, where is drawn in

question the validity ofa

treaty or statue of the United

States and the decision is

against its validity.

(2) By appeal where is drawn in

question the validity of a

statute of any state on the

ground of its being repugnant

to the Constitution, treaties

or laws of the United States,

and the decision is in favor

of its validity.

(3) By writ of certiorari, where

the validity of a treaty or

statue of the United States

is drawn in question or where

the validity of a State statute

is drawn in question on the

grounds of its being repugnant

to the Constitution, treaties

or laws of the United States,

or where any title, right,

privilege or immunity is

specially set up or claimed

under the Constitution,

treaties or statutes of, or

commision held or authority

exercised under, the United

States.

For the purposes of this

section, the term “highest

court of a State" includes the

District of Columbia Court of

Appeals. (C.646, &1, 62 Stat.

929; July 29, 1970, P.L. 91-

358, Title I, Part D, Subpart

2, & 172(a)(1), 84 Stat. 590).

(4) State Statutes

Indiana Shield Law

Burns Indiana Statutes Annotated,

Code Edition 34-3-5-1

34-3-5-1 (2-1737). Newspapers,

television and radio stations -

Pre-associations-Employees and

representatives-Immunity.-Any

person connected with, or any person

who has veen so connected with or

employed by, a newspaper or other

periodical issued at regular inter-

vals and having a general circul-

ation, or a recognized press as-

sociation or wire service as a bona

fide owner, editorial or reportorial

employee, who receives or has

received income from legitimate

gathering, writing, editing and

interpretation of news, and any

person connected with a licensed

radio or television station as

owner, official, or as an editorial

or reportorial employee who rec-

eives or has received income from

legitimate gathering, writing,

editing, interpreting, announcing

or broadcasting of news, shall

not be compelled to disciose in

any legal proceedings or else-

where the source of any information

procured or obtained in the course

of his employment or represent-

ation of such newspaper, periodical,

press association, radio station,

television station, or wire service,

whether published or not published

in the newspaper or periodical,

or by the press association or

wire service or broadcast or not

broad cast by the radio station or

television station by which he

is employed. (Acts 1941, ch. 44

& 1, p.128; 1949, ch. 201 & l, Dp.

673; 1973, P.L. 319 &1, p.1731.)

Burns Indiana Statutes annotated

Code Edition

35-1-25-2 (9-1303). Judge related

to party or formerly counsel in

case -Special judge.-No judge of

any court shall preside in or try

any criminal cause, where he is

related to the defendant by mar-

riage or by blood, within the

sixth degree of consanguinity,

nor where he has been of counsel

in the cause, either for the state

or for the defendant; and in

either of such cases it shall be

the duty of the regular judge to

select a special judge to try

such cause. (Acts 1905, ch. 169,

s 205, p.584.)

(3) engage in illegal conduct

involving moral turnpitude.

(4) engage in conduct involv-

ing dishonesty, fraud,

deceipt or misrepresenta-

tion

(5) engage in conduct that is

prejudicial to the admin-

istration of justice.

(6) engage in any other conduct

that adversely reflects on

his fitness to practice

law.

(6) Admission and Discipline Rule (DR)

7-105 Avoiding Even the Appear-

ance of Improprit

(A) A lawyer Shalt not accept

private employment in a manner

upon the merits of which he

has acted in a judicial.

capacity.

imply that he is able to

influence improperly or upon

irrelevant grounds any trib-

unal, legislature body, or

public official.

Admission and Discipline Rule 23 Section

10 (a)

(a) Upon receipt of a written, verified

Claim of misconduct (hereinafter

referred to as “the grievance"), from

a member of the Commission and comple-

tion of such preliminary investigation

as he deems appropriate, the Executive

Secretary shall:

1. Dismiss the claim, with the ap-

proval of the Commission, if he

determines that it raises no

substantial question of misconduct;

2. If he determines that it does

raise a substantial question of

misconduct, send a copy of the

grievance by certified mail to

the attorney against whom the

grievance is filed (hereinafter

referred to as "the respondent")

and shall request a written re-

sponse within twenty (20) days

after the respondent receives a

copy of the grievance.

In the event of a dismissal as provided

herein, the person filing the grievance

and the respondent shall be given

written notice of the Executive Secre-

tary's determination. In the event

of a determination that a substantial

question exists, the matter shall

proceed to (b) hereinafter. Amended

November 30, 1971.

2 RAISE and Discipline Rule 23, Section

"Thereafter, within forty-five (45) days,

after notice to the Respondent, if, the

executive secretary, upon consideration

of the grievance, the preliminary investi-

gation and any response from the respondent,

determines there is a reasonable cause to

believe that the respondent is guilty of

misconduct the grievance shall be docketed

and investigated. If he determines that

no such reasonable cause exists, the

grievance shall be dismissed with the ap-

proval of the commission. In either

event, the person filing the grievance

(hereinafter referred to as 'the complain-

ant') and the respondent shall be given

written notice of the executive secretary's

determination,"

Admission and Discipline

Rule 23 Section 13A

Section 13. Hearing Officers

In addition to the powers and duties set

forth in this Rule, hearing officers shall

have the power and duty to:

(a) conduct a hearing on the complaint of

misconduct within sixty (60) days

after the Commission's determination

of reasonable cause;

+ administer oaths to witnesses;

c) receive evidenceand make written

findings of fact and recommendations

to the Court; and

(d) do all things necessary and proper to

carry out their responsibilities under

this Rule.

Code of Judicial Conduct

Canon I. Avoidance of Impropriety

A Judges official conduct should be

free from impropriety and the appearance

of impropriety; he should avoid

infractions of law; and in his personal

behavior, not only upon the Bench and the

performance of judicial duties, but also

in his everyday life, he should strive to

be beyond reproach,

Canon 6,

No Judge shall participate in any

cause which involves any business in which

the judge or any member of his family has

a pecuniary interest.

Canon 15.

A Judge shall promptly fully disclose

any interest, personal or financial, which

he may have in any contested litigation.

STATEMENT OF THE CASE

On or about the 18th day of November,

1978, J. Michael Piggott filed with the

Indiana Supreme Court Disciplinary Commission

a verified complaint for violations of the

Code of Judicial Conduct and Ethics against

the Petitioner by which complaint said J.

Michael Piggott agreed under penalty of

perjury to testify at any hearing held in

the matter. Thereafter and within 20 days

Petitioner made written answer to charges

of violation of Code of Judicial Conduct and

Ethics thereto. On January 7, 1975, without

first making a preliminary investigation and

determination that there was reasonable

cause to believe that the Petitioner was

guilty, as required by Admission and

Discipline Rule 23, Section 10(b), the

Executive Secretary docketed said complaint

as Docket No. D-111874B. On May 12, 1975, a

Verified Complaint for Disciplinary Action

was filed by the Disciplinary Commission in

this Court against Petitioner in four counts,

four of the counts were included in the

original complaint of J. Michael Piggott,

but charged violations of both the Code of

Judicial Conduct and Ethics and Code of

Professional Responsibility for Attorneys at

Law. On May 19, 1975, Richard H. Grabham

filed with the Disciplinary Commission a

verified complaint for violation of the

Code of Professional Responsibility against

Petitioner to which Petitioner made response

within 20 days. On June 20, 1975, Petitioner

filed his motion to dismiss said Verified

Complaint for failure of the Disciplinary

Commission to comply with the Procedural

Requirements of Admission and Disciplinary

Rule No. 23, and for failure of a hearing

officer to conduct a hearing within sixty

(60) days of the determination of the

Disciplinary Commission of reasonable cause.

On July 18, 1975, without first making a

preliminary investigation and determination

that there was reasonable cause to believe

that the Respondent was guilty, as required

by Admission and Discipline Rule 23, Section

10(b), the Executive Director docketed

said complaint of May 19, 1975, after

Amended Complaint were filed, the hearing

was commenced on January 19, 1976.

The hearing was not begun within sixty

days after the grievance was docketed. (See

Court opinion below printed in Appendix A

hereto infra page -) Petitioner's

motion to dismiss at preliminary hearing was

denied by the hearing officer on review by

the Supreme Court Petitioner cited failure

to strictly comply with the procedure under

Admission and Discipline Rules as denying

him due process (Petitioner's Brief p.100

printed hereto infra in Appendix B page 62,63)

The Supreme Court ruled that the docketing

of the grievance infers a finding of reasonable

cause and that the sixty day requirement for

holding a hearing was not a jurisdictional

requirement nor did the failure to hold a

hearing within sixty days after docketing

prejudice Petitioner. (Court's opinion

printed hereto infra in Appendix A page )

(2) The evidence adduced at the disciplinary

hearing shows the following summarized facts

concerning alleged improper judicial conduct

and improper professional conduct as an

attorney.

(a) Mr. Larry Mathes - Petitioner represented

Mr. Mathes' former wife in her civil divorce

action against Mr. Mathes. On information

filed by the prosecuting office, Mr. Mathes

was issued a citation for failure to provide

support as ordered by Tippecanoe Superior Court.

A court-ordered attorney fee for services

provided by Petitioner in the civil divorce

action was outstanding at the time Mr. Mathes

appeared before Petitioner in City Court.

Petitioner's law partner, Daniel K. Houston,

had appeared the same morning in Tippecanoe

Superior Court for the purpose of obtaining

enforcement of the attorney fee order issued

in the former divorce proceedings. Mr. Mathes

was not a client, relative or party to any

litigation involving Petitioner as an attorney.

Upon being told by Mr. Mathes that he (Mathes)

was delinquent on child support and that he had

been ordered to pay forty-five ($45.00) a

week in Superior Court, Petitioner entered a

support order of Forty-five ($45.00) a

week and suspended sentence for two years,

provided support payments were kept current.

(Tr. p. 56-99)

(b) Support citation of Mr. Kenneth Hunter -

Again Petitioner represented Defendant's

wife in a civil divorce action against Mr.

Hunter. Divorce was final on June 3, 1974,

and the child support citation was issued on

August 22, 1974, upon information filed in

the prosecutor's office, with Mr. Hunter

appearing in City Court on September 5, 1974.

An agreement was entered between Mr. Hunter

and the Deputy Prosecutor with regard to

the payment of support. The existence of

this agreement is verified by appropriate

ao in the docket sheet. (Tr. p.

225-226). Petitioner merely entered the order

reflecting the child support agreement. No

findings of fact or law were made by Petitioner

in the matter of Mr. Hunter. (Tr. p. 8-56)

represented Mr. Hammond's wife in a civil

divorce action against him. After the

divorce became final, upon information filed

by the prosecutor's office charging Mr.

Hammond with failure to provide, petitioner

issued a summons. Mr. Hammond obtained

counsel who filed a Motion of Change of Venue

from the Judge. The motion was granted by

Petitioner. No other connection between

Mr. Hammond's case and Petitioner as Judge

was cited by the commission of substantiated

by evidence before the Hearing Officer. (Tr.

p. 148-160)

(d) Richard Smith - Petitioner had represented

Richard Smith in the year 1970. In March 25,

1974, Petitioner sitting as Judge sustained

State's motion to dismiss charges of First

Degree Burglary, Disorderly Conduct and

Resisting Arrest against Smith. On May 20,

1974, Petitioner sustained State's motion

uestion 25 and at Tr. p. 2038, question |

to dismiss charges of Armeu Robbery against

Smith. On May 21, 1974, on State's motion,

Petitioner dismissed charges against Smith of

Driving while Suspended, Reckless em

and Disorderly Conduct. On June 18, 1974,

Petitioner failed to find probable cause to

issue arrest warrant for Smith on charges of

Safe Burglary. (Tr. p. 537-1064)

The other judicial act alleged to be

improper was Petitioner's ordering the

release of David Banton from jail after

Banton had posted sufficient bail in accordance

with the bond schedule which Petitioner had

posted in the jail.

Petitioner objected to the introduction

of all exhibit and testimony concerning his

judicial acts on the ground that such acts

were not subject to disciplinary proceedings.

(Tr. p. 18, 63, 123, 188, 189, 595) Each

objection was overruled by the hearing officer.

On review by the Supreme Court of Indiana,

Petitioner urged in his brief that his

judicial acts consisted of primarily

ministerial acts involving neither findings

of fact nor law and which were not within

the express provisions of the Code of

Professional Responsibility and Code of

Judicial Conduct. (Assignment of Error,

Petitioner's Brief p. 97-98) He further

urged that there was no evidence showing

violation of any express provision of the

Judicial Code or Indiana Statutes requiring

his disqualification as Judge, and that his

acts were at most merely voidable.

Brief p. 738-243)

arguments but ruled expressly only upon the

argument advanced that Petitioner's judicial

acts were at most voidable acts. Supreme

Court's opinion printed hereto infra in

(Petitioner's

The court rejected Petitioner's

Appendix A page .

(3) The Hearing ST Teer made the following

rulings during the disciplinary hearing;

(a) Inconsistent and erroneous rulings

over Petitioner's objections regarding scope

of direct examination and cross-examination

of witness on matters which they had given

testimony to a grand jury. The hearing officer

permitted direct testimony on such matters by

Commission Witness David Banton (Tr. p. 198- |

238); he denied Petitioner the opportunity

to cross-examine Commission witness Laura

Shepard concerning pictures taken of stolen

guns. (Tr. p. 1215-1364) Petitioner cited

such rulings as a denial of due process

(Petitioner's Brief p. 100 printed hereto

infra in Appendix B page 63 )

(b) Inconsistent and erroneous rulings over

Petitioner's objections on the admissibility

of hearsay testimony proferred by Disciplinary

Commission and of hearsay testimony proferred

by Petitioner. The hearing officer permitted

hearsay testimony of Commissioner witness

Daivd Banton (Tr. p. 274-275); excluded hearsay

testimony and cross-examination of Commissioner

witness Billy Horn (Tr. p. 363); excluded

hearsay testimony and cross-examination of

Commissioner witness Robert Osborn (Tr. p.

395-397); permitted hearsay testimony and re-

redirect of Commissioner witness Richard Dean

Smith (Tr. p. 1028-1031); permitted Commission

to introduce hearsay evidence (Tr. p. 2403-2412)

On review Petitioner cited such rulings as a

denial of due process (Petitioner's Brief p.

100-101 printed hereto infra in Appendix B

page 63 ) The Supreme Court of Indiana

did not expressly rule In the assignment of

errors.

on substantive matters which the record clearly

indicates were not the subject of Petitioner's

direct testimony. (Tr. p. 2253, 2257,

2267-2268, 2304-2325, 2332-2337, 2381-2385)

On review to the Supreme Court Petitioner

cited such rulings as erroneous (Petitioner's

Brief p. 30-40.) without reference to any

violation of his constitutional right. The

Supreme Court of Indiana did not expressly

rule on this assignment of error.

(d) Restricted direct testimony of Paul

Banton, Petitioner's only corroborating

witness concerning criminal charges, to

matters not covered by prior testimony of

other witnesses. This restriction was

imposed, over Petitioner's objections

because upon Petitioner's request Paul

Banton had listened to a tape recording of

prior testimony of other witnesses. The

hearing officer ruled this constituted a

flagrant violation of the separation of

witness rule. (Tr. p. 1611-1619, 1628-1635)

On review Petitioner cited this ruling as a

denial of due process and of his right under

the Sixth Amendment to present favorable

witnesses. (Petitioner's Brief p. 100

printed hereto infra in Appendix B page 62

and 271-272 printed hereto in Appendix B page

64 .) The Supreme Court held that

e trial court has discretion as to whether

or not to allow a witness to testify in these

instances.

(e) Restricted direct testimony of Phyllis

Wireman to matters not testified about by

previous witness, because she had listened to

tape recording of previous testimony. The

hearing officer ruled this to be a flagrant

violation of the separation of witness rule

(Tr. p. 1567-1586, printed hereto infra in

Appendix B page 44 ) On review

Petitioner cited this ruling as a denial of

due process and of his right under the Sixth

Amendment to present favorable witness

(Petitioner's Brief p. 100-101 printed hereto

infra in Appendix B page 62,43 and p.p.

271-272 printed hereto infra In Appendix B

page 5 -) The supreme Court ruled

that the triai court has discretion as to

whether or not to allow a witness to

testify in these instances.

(f) At the conclusion of the Disciplinary

Commission's case, the hearing officer denied

Petitioner's motion to strike direct testimony

of Petitioner's alleged accomplice David Banton,

who disappeared before completing his direct

testimony on behalf of the Commission. The

Hearing officer ruled that he would reserve a

fuling until it could be determined whether

Banton would be present again at the hearing.

(Tr. p. 1681(a)) Petitioner renewed the motion

to strike on several occasions. (Tr. p. 1542-

1548, 1696(a), 1724-1727, 1890-1892) On

review by the Supreme Court, Petitioner

urged that he was denied his right to

confrontation under the Sixth and Fourteenth

Amendments by this ruling. (Petitioner's

Brief p. 280-289) Also in his Brief to the

Supreme Court, Petitioner urged that the

failure to strike David Banton's testimony

denied him due process of law (Petitioner's

Brief p. 100-101, printed hereto infra in

Appendix B page 62,463) The Supreme Court

of Indiana held n the interest of

fairness it would disregard the testimony

of David Banton. (Court's opinion printed

hereto infra in Appendix A page 5 )

(g) Exclusion of any testimony concerning

alleged political conspiracy against

Petitioner (Tr. p. 144-145, 527-529, 530-

531, 1709-1710, 1723, 1727, 1730, 1820) ana

excluded direct testimony proffered by

Petitioner to establish waiver by reporters

of their disclosure immunity under the Indiana

Shield Law (Tr. p. 1944-1947, 1957-1964.)

Petitioner cited to the Supreme Court these

exclusions as denying him due process of law

(Petitioner's Brief p. 100). e Supreme

Court ruled that "the record demonstrates

that this alleged conspiracy did not involve

any witnesses to the proceeding. The Respondent

was allowed to demonstrate bias and prejudice

of the witness who testified; he was only

precluded from developing evidence of prejudice

of those who had not adversely testified

against him. This Court finds that this

evidence was immaterial and properly excluded."

The Court also ruled that a individual who

files a grievance is not an accuser since the

Commission through its investigation and

filing the complaint becomes the accuser

(Court's opinion printed hereto infra in

Appendix A page ¢49 )

(h) Excluded direct testimony which

Petitioner's offer of proof would have

shown that news reporters had waived

disclosure immunity under the Indiana Shield

law through disclosures to third parties.

Petitioner's witness Roller was not permitted

by the hearing officer to testify as to any

disclosure by news reporter Janet Johnson

to him (Roller). (Tr. p. 1944-1947)

Petitioner wus not permitted to offer testimony

that news reporter J. Michael Piggott had

waived disclosure immunity by his disclosures

to the Indianapolis Star. (Tr. p. 1723-1724)

On review to the Supreme Court of Indiana,

Petitioner cited these rulings as violating

his right under the Sixth Amendment and as

denying him due process. (Petitioner's

Brief p. 233-234) In its opinion, the

Indiana Supreme Court ruled that the question

. 27

of waiver of immunity by the reporter was

irrelevant because Petitioner sought to

develop through the reporters testimony

concerning a political conspiracy against

him where Petitioner did contend that the

news reporters were involved in such a

conspiracy. (Court's opinion printed herein

infra in Appendix A page )

(4) Petitioner was charge encouraging

Richard Dean Smith and Paul Banton to perpetrate

first degree burglary. Petitioner's

corroborating witness, Paul Banton, was

restricted in his direct testimony to matter

not previously testified about by other

witnesses. (Because of alleged violation

of separation of witness rule) Subsequent

to the disciplinary proceedings, Petitioner

was convicted of charges relating to his

alleged criminal conduct on which there

was testimony during the disciplinary

proceedings. The Indiana Supreme Court

reviewed the entire transcript as a trial

court would in making findings of fact and

of law. Appeal of Petitioner's subsequent

conviction is now pending.

During the disciplinary proceedings, only

Richard Smith's testimony stated that Petitioner

had encouraged the burglary of coins and guns.

Smith's testimony is totally unreliable as is.

apparent from the record reflecting the cross-

examir ation of him. (Tr. p. 798-799, 1604a-

1605a containing statements contradicting

his direct testimony implicating Petitioner

in the burglaries and stating that he had

obtained immunity from prosecution;}/Tr.p.1751-

1759 where Petitioner's witness Ronald Cox

testified that while he (Cox) was a fellow inmat

of Smith, Smitr told him that he was going

to falsely implicate a Lafayette Judge in

criminal activities) On review by the Indiana

Supreme Court, Petitioner cited as error that.

the evidence is insufficient to support the

findings of criminal conduct on the part of

Petitioner, (Petitioner's Brief p. 163-264)

The Indiana Supreme Court found Petitioner to

have encouraged the burglary of coins and guns.

(Court's opinion printed hereto infra in

Sppendix B page _59, 60 )

WHY WRIT OF CERTIORARI

SHOULD BE GRANTED

Petitioner respectfully submits that

writ of certiorari should be granted in

the instant cause for the following reasons:

(1) Petitioner was denied a fair and impartia .

hearing as reflected in the inconsistent,

erroneous and arbitrary rulings by the Hearing

Officer set forth herein. Disciplinary

Proceedings are of a quasi-criminal nature.

In Re Ruffalo 390 U.S. 544, 551, 20 L.Ed.

-Ct., 1222, 1226 reh denied 391

U.S. 961, 20 L.Ed.2d 874, 88 S.Ct. 1833

(1968). Asa quasi-criminal proceedings,

a disciplinary hearing must adhere to the

most exacting demands of due process of

law. See Spevack v. Klein 385 U.S. 511,

17 L.Ed.2d bry 87 S.ct. 625 (1967) Wiliner

v. Committee on Character & Patness 212 9-5.

1162 (1963) (Per Justice Goldberg’ s comment

that "certainly lawyers and courts should be

particularly sensitive of and have a special

obligation to respect the demands of due

process.") "{WJhen a State seeks to...

Gisbar a lawyer it must proceed according

to the most exacting demands of due process

of law." Law Students Civil Rights Research

Council Inc. v.

anticipate what testimony of missing

174, 27 L.Ed.2d 749, 91 S.Ct. 720, 731 (1971) witness David Banton he should rebut.

(Black and Douglas J.J. in dissenting opinion) The Indiana Supreme Court's merely

The prejudicial effect of the Hearing extracting the direct testimony of witness

Officer's denial of Petitioner's motion to David Banton in evaluating the sufficiency

strike the direct testimony of missing of the evidence did not cure the prejudicial

witness David Banton was not purged by the / effect upon Petitioner's presentation of his

Supreme Court of Indiana ruling that such defense. The hearing officer's inconsistent

testimony was disregarded by that Court in and erroneous ratings on hearsay testimony

reaching its decision. The failure to strike , and grarft jury testimony, and improper cross-

said testimony at the conclusion of the examination of Petitioner further impaired

Commission's case cast an unfair burden Petitioner in his presentation of his defense.

upon Petitioner in the presentation of his Before an error inviolation of federal

defense in two main respects: (a) Petitioner constitutional rights can be held harmless,

was denied right of confrontation under the "the court must be able to declare a belief

Sixth Amendment of the United States that it was harmless bey ond a reasonable dovbt".

Constitution. The right of confrontation Chapman v. California 3 be U.S. 18, 24, 17 L.Ed.

includes the opportunity of cross-examination Sa NOR BTS Ce Ba (1967).

of accusers. Davis v. Alaska 415 U.S. 308, Defense counsel has a right to impeach

315, 39 L.Ed.2d 347, 94 S.Ct.1105 (1974); a witness by showing that because of the

ee 380 U.S. 415, 418, 13 witnesses incarceration in a federal prison at

. Ct. 1074 (1965). the time of trial, the witnesses testimony

The denial of the right to effective was biased "as given under promise or.

cross-examination is a "constitutional expectation of immunity or under coercive

error of the first magnitude and no <oeag 7 ie effect of his detention by officers of the

showing of want of prejudice would cure it United States". Alfo-d v. United States 282

Brookhart v. Janis 384 U.S. 1, 3, 16 L.Ed.2d U.S. 687, 75 L.Ed. 624 S.ct. (1932)

, (1966). If the denial Petitioner was not permitted to present

of the opportunity to cross-examine a witness | testimony of his witness Ronald Cox as to

in any way seriously hampered or embarrassed Smith's behavior while he and Cox were

the Defendant's effort to get at the truth fellow inmates.

of the facts, the testimony of the witness ; The rights under the Sixth Amendment of

must be striken. See Smith v. United States notice, confrontation and compulsory process

331 F.2d 265, 277-278 (8th Cir. 1968) are part of the due process of law that is

ted ¥. Cardillo 316 F.2d 60d, guaranteed by the Fourteenth Amendment to

en 375 U.S. 822, Defendants in criminal courts of the states.

ll L.B4.24 55 PY s. Ct. 60 (1963). Faretta v. California 422 U.S. 806, 818, 45

(>) The failure to strike said testimony at [.Ed.od 562, 95 S.Ct. 2525 (1975).

the conclusion of the Commissioner's case (2) The Petitioner has the right under

imposed a burden upon Petitioner to the Sixth and Fourteenth Amendments to present

30 31

a defense through the calling and interrogation

of favorable witnesses. See Faretta v. Cali-

fornia 422 U.S. 806, 818, 45 L.Ed 2d 562, 95

S.Ct. 2525 (1975).

Petitioner was denied this right under

the Sixth and Fourteenth Amendments by the

Hearing's Officer's restricting the testi- .

mony of Petitioner's witnesses Phyllis Wireman

and Paul Banton, his sole corrabating witness, ‘

to matters not inclueded in previous testi-

mony during the hearing. This exclusion of

testimony was based on an alleged willful

violation of separation of witness order.

However, the precise ruling initfally was for

a closed hearing. Petitioner understood that

his motion for a closed hearing was granted to

exclude reporters and the public from the

proceedings. Where a witness is Defendant's

sole corroborating witness, the exclusion of

his testimony for violating the separation

of witness rule results in prejudice reaching

constitutional proportion. See Braswell v.

Wainwright 463 F2d 1148, 1153 (5th Cir.

1573) cf W. T 8 U.S. 14,

ash on v. Texas 3

18 L.Ed oP TO BT SS Ed . - 1920 (1967).

The restriction placed upon the testimony of

Petitioner's witnesses Paul Banton and

Phyllis Wireman had the effect of compelling

Petitioner to testify. This Court has

recognised that the Fifth Amendment right

against self-incrimination adheres in

v. Klein’ 385 U.S. Sls 17 Lika. ee aTe

v. ein: -S. 511, L.Ed. 2

87 S.Ct. 625 (1967).

"While the ‘Witness Rule’ has a

valid purpose and can contribute to the

search for the turth, a breach of the rule

can not be used to deny a crminal defendant

his constitutional right to obtain and

present witnesses in his favor." Braswell

v. Wainwright, supra at page 1157. A

simple rule of courtroom "fairness" may

not be misused to destroy a sacred consti-

tutional right. Braswell v. State 400 U.S.

873, 27 L.ED.2da 111, Ct. (1970).

(Dissenting opinion of Black, with

Douglas and Brennan J.J. joining.)

An additional assault upon Petitioner's

rights under the Sixth and Fourteenth

Amendment occured throught the Hearing

Officer's denial to Petitioner of the

opportunity to present testimony regarding

Petitioner's allegation that all charges

against him were merely the result of a

political conspiracy. In this regard, the

issue of waiver of disclosure immunity by

certain reporters was relevent if Petitioner

offered to prove that such reporter had

knowledge of a political conspiracy. Peti-

tioner has the right to conduct his defense

under his own theory.

(3) Petitioner was denied due process

of law under the Fifth and Fourteenth

Amendments by the failure of the Hearing

Officer and Supreme Court of Indiana to

strictly construe the Code of Judicial

Conduct and Admission and Discipline Rules.

Petitioner's judicial conduct consisted

primarily of ministerial acts involving

no exercise of judicial discretion or

independent findings of fact and law. He

had no family, attorney-clic.:it or business

relationship with the four defendants who

appeared before him, nor did he have an

interest in the disposition of these

cases. Indiana Code 35-1-25-2 provides

that:

No Judge of any court shall preside

in or try any criminal cause, where he

is related to the defendant in marriage

or by blood within the 6th degree of

consanquenity nor when he has been coun-

sel in the cause, either for the State

or for the defendant.

The Indiana Code of Judicial Conduct

Canon 6 provides that a “Judge should

not act in a controversy where a near

relative is a party. Canon ll provides:

"No Judge shall participate in any

cause whic nvolves any business in

which the judge or any member of his

family has a pecuniary interest."

Finally Canon 15 provides:

"A Judge shall prompt oy fully disclose

any interest, personal or nancial, whic

he may have in any contested litigation."

Petitioner sitting as judge does not

constitute a violation of the above provisions.

Contempt proceedings for failure to provide

support are separate actions from support

actions brought pursuant to divorce actions.

See Gilmour v. State 230 Ind. 454, 104 N.E.24

127 T1952); Bruce v. State 230 Ind. 413 104

N.E.2a 129 (1952). Thus, Petitioner's

representation of defendant's former wife

against a defendant in divorce proceedings

would not disqualify Petitioner to sit as

Judge in a child support citation against

defendant. Petitioner's ordering the

release of David Banton after the latter

had posted required bond and had spent four

hours in detention did not represent an

adjudication of the merits of that offense

charged against Banton.

Statutory regulations of attorney

conduct must be strictly construed.

Klingensmith v. Kepler 41 Ind. 341 at page

345 CIES); State v. Crossland 152 Ohio St.

109, 88 N.E.2d 289 at page 290 (1949)

<<,

In re Chappel 33N.E.2d 393 at page 397 (1930).

er states have held that in the absence

of violations of express specific rules,

regulations or laws a Judge may not be

disciplined for an erroneous exercise of

discretion not involving fraud, dishonesty

or crimes. See In re McGarry 380 Ill. 359,

44 N.E.2d 7, 10 (1992); In re Troy (Mass)

306 N.E.2d 203, 217 (1973). ese cases

reflect a disposition toward strictly

construing regulations or statutes governing

conduct of judges. This Court has ruled

that administrative agencies must scrupulously

observe departmental safeguards of due

process. Vitarelli v. Seaton 359 U.S. 535,

3 L.Ed2d 1 . Ct. 1959). It is

submitted that there must be strict conformance

to procedural rules of Admission and Discipline

in investigation, notice, filing complaints,

and conducting the hearing. In Re Ruffalo

390 U.S. 544, 20 L.Ed.2d 117, 88 S.Ct. Idd2

Otherwise, the filing of a grievance by a

third party who is not required to testify

becomes a fishing expedition without any time

limitations in which to find probable

cause for a complaint to be filed by the

Commission. The docketing of the complaint

without express finding of probable cause is

analogous to the issuing of a warrant

without finding of probable cause.

(4) The Disciplinary Commission and

the Supreme Court of Indiana lacked

original jurisdiction over Petitioner's

alleged criminal conduct not related to

Petitioner's practice of law or to his

judicial conduct.

The Supreme Court of Indiana has

original jurisdiction "in admission to the

practice of law; discipline or disbarment

of those admitted; the unauthorized practice

of law; discipline, removal and retirement

of justice and judges". Article 7 $4 Constitu-

tion of Indiana.

Article 7 §13 of the Constitution of

Indiana provides "any Judge of the Circuit

Court or prosecuting attorney, who shall

have been convicted of corruption or other

high crime, may on information in the name

of the State be removed from office by the

Supreme Court 7° 22 such other manner as may

be prescribed _b law. (emphasis added)

“The Supreme Court of Indiana held in

State v. Patterson 181 Ind. 660, 105 N.E.

220, oof (1914) that the phrase "nor in such

other manner as may be prescribed by law" in

the then existing constitutional provisions

cannot be held as relating to causes for

removal but merely permits other procedures

for removal of judges. See also State v.

Dearth 201 Ind. 1, 164 N.E. 489 (

A Judge may be removed only after

"a judgment of conviction has been pronounced".

State v. Patterson supra 105 N.E. at 230. .

en a conviction has resulted at the

hands of a tribunal competent to render a

judgment of the character contemplated and

the officer is in prison and perforce unable

to administer his office, occasion then

arises when this Court may on information

remove the Judge". State v. Dearth 201 Ind.

1, 164 N.E. 489, 492° (1929).

Provisions of State Constitutions

establishing jurisdiction or authority are

to be strictly construed. State v. Patterson

181 Ind. 660, 105 N.E. 228, 229 (19149); State

v. Dearth 201 Ind. 1, 164 N. E. 489 (1929)

(citing State v. Patterson); State ex rel

Great ifTon Vv. Mie (Louisiana) o5° La. 540,

°. McMillen v.Diehl 128

Ohio St. 212, 190 N.E. 567 (1936); Barnett

v. Hepburn 121 Okla. 268, 249 P 921 (1926);

ohnson v. Moone (Texas Civ App) 241 S.W.

e Carney 182 Va. 907, 30 S.E.2d

789 (1944). State ex rel Monon ahela Valle

Traction Co. v. Beard 604 W.Va. 3le, 99 S.E.

W5e (1915)

A strict Construction of the constitu-

tion of the Indiana would prvuvide original

jurisdiction to the Indiana Supreme Court

over alleged criminal conduct of judges only

upon conviction for those charges. Petitioner

submits that the same criteria of a convic-

tion adheres before a disciplinary proceed-

ing may entertain allegations of criminal

conduct by attorneys. Moreover, the rationale

for holding that the Supreme Court of Indiana

does not have original jurisdiction over the

alleged crimes cénducted may be demonstrated.

In the instant cause, the Supreme Court of

Indiana has examined and evaluated transcript

of the disciplinary proceedings which contain

testimony concerning alleged criminal conduct

of Petitioner. This alleged criminal conduct

relates to charges for which Petitioner was

subsequently convicted in a lower court. In

disciplinary ,proceedings the Supreme Court

of Indiana “acts as a trial court and must

determine issues of fact". In Re Murra

Ind. 362 N.E.2a 128, 130. This

participation by the Court in examining the

transcript in determining findings of facts

"clearly distinguishes the disciplinary

proceédings from an appeal". In Re Murray

supra 362 N.E.2d 128, 130.

The total impact of such an independent

findings of facts by the Supreme Court of

Indiana is to deny Petitioner effective

appeal from subsequent lower court

convictions for alleged criminal conduct which

relates to conduct adjudicated in the

disciplinary proceedings. Once the right

of appeal is granted, it cannot be arbitrarily

or capriciously denied to some while granting

it to others. Mayer v. crane 404 U.S. 189,

30 L.Ed.2d 372, . ~ 971). More-

over, the right of appeal to the highest

state court must be provided. Burns v.

Ohio 360 U.S. 252, 3 L.Ed.2d 1209, 79 S.

Ct. 1164 (1959). The power of states to

control the practice of law cannot be

exercised so as to abrogate federally

protected rights. Johnson v. Aver

393 U.S. 483, 490 2 Ed. » 09 S.

Ct. 747 (1969). In the instant case,

the Indiana Supreme Court has independent

and separate knowledge of testimony

regarding the subject of an appeal of a

conviction. This denies Petitioner due

process and equal protection of the laws.

ef In Re Murchison 349 U.S. 133, 99 L.Ed.

2d 942, 75 S.Ct. 623 (1955).

(b) Original jurisdiction over alleged

criminal conduct of an attorney impairs,

frustrates, and usurps the function of the

prosecuting attorney, and therefore,

violates the separation of powers doctrine

expressed in the Constitution of Indiana,

Article 3 §1l.

Under the separation of powers

doctrine, many state courts have reversed

lower courts rulings which usurped or

impaired the exercise of prosecutorial

authority. See People v. Stinger 22 I1l.

App. 3rd 371, 317, Esa 340 eI576);

— - —

Smith v. Superior Court 101 Ariz. 559, 422

Pod 123, 4 (1567); People ex rel Leonard

v. rake 386 Mich. 672, cL N.W.2d 093, 699

Separation of powers among the legisla-

tion, executive and judicial branches is

essential for the guarantee of a Republican

form of State government under Article IV

§4 of the United States Constitution. See

Van Sickle v. Shanahan 212 Kan. 426, 511 P.2d

223 (1973). ae eople v. Stin $2 Ill.

App 3rd 371, 31 obe ; People

v. Baron i130 Ill. App. 588, 264 N.E.3d 123,

25-26 (1970); People v. District Court in

Ind. for County of Larimer 103 Cal. Rptr.

645, O7 Ca. 30 193, 527 P.2d 50 (1974); Smith

v. Superior Court 101 Ariz. 559, 422 P.2d

123, ez. (1567); People Ex rel Leonard v.

Papp 386 Mich. é73—TOU-W.W.2d- 653, 699 (1972).

Petitioner submits that there can be

no clearer infringement of the guarantee

of a Republican form of government than

where the provisions of the state constitution

are abrogated by a loose interpretation of

its separation of powers provisions and

where an important responsibility of the

state executive department is usurped and

impaired by the exercise of original

jurisdiction by the highest State Court over

alleged criminal conduct.

Contrary to previous cases presenting

the question of the guarantee of a Republican

form of government, the instant cause does

not pose a "textually demonstrable constitutions

committment of the issue to a coordinate

political department; or a-iack of judicially

discoverable and manageable standards for

resolving it; or the impossibility of

deciding without an initial policy deter-

mination of a — clearly for nonjudicial

People v. Baron 130 Ill. App. 588, 264 N.E.

od is3- 425-426 (1970); People v. District

Court in and for Count oF Tarian? 103 Cal.

Rptr. 695, O7 Ca. 3d 153. 527 P.2d 50 (1974);

discretion; or the impossibility of a court's

undertaking independent resolution without

expressing lack of respect due coordinate

branches of government; or an unusual need

for unquestioning adherence to a political

decision already made; or the potentiability

of embarrassment from multifarious pronoun-

cements by various departments on one question".

Baker v. Carr 369 U.S. 186,217,7L.Ed.2d

691 (1962) "Unless one

of these formulations is inextricable from

the case at bar, there should be no

dismissal for nonjusticiability on the

grounds of a political question's presence:

Baker v. Carr supra 369 U.S. at 217. For

these reasons, it is submitted that the

Indiana Supreme Court lacked original

jurisdiction over the subject matter of

alleged criminal conduct. Where the court

lacked jurisdiction over the subject matter,

a defendant is denied due process of law

under the Fourteenth Amendment.

(4) The Petitioner was denied due process

in that the record lacks any relevant

evidence substantiating the charges of

improper judicial conduct. See Vachun

v. New Hampshire 414 U.S. 478, gal

od 666, 94 S.Ct. 644 (19783, Tho

v. Louisville 362 U.S. 199,

650, 80 S.Ct. 624 (1960)

Where the record shows that the testimony

of the only witness who allegedly participated

in criminal conduct with the defendant

contains self-contradictions as to defendant's

actual criminal conduct, it is submitted

that such testimony is totally unreliable

and insufficient to satisfy the due process

requirements under Vachun and Thompson supra.

CONCLUSION

For the foregoing reasons, this petition

for a writ of certiorari should be granted.

Respectfully submitted,

= an 0) QReonin

Counsel for Petitioner

141 South Adams Street

Marion, Indiana 46952

(317) 664-9018

Counsel of Record

FRANKLIN D. SHIPMAN

Counsel for Petitioner

141 South Adams Street

Marion, Indiana 46952

(317) ” 664-9018

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF

CAUSE NO. 575 S 122

LEWIS T. WIREMAN

ORDER GRANTING MOTION TO STRIKE

Comes now the respondent and files

his “Motion to Correct Errors" and “Motion

for Stay of Proceedings", and comes ncw

the Indiana Supreme Court Disciplinary

Commission and files its "Motion to

Strike Respondent's Motion to Correct

Errors and to Strike Respondent's Motion

for Stay of Proceedings". Additionally,

bothy parties have filed memorandum of law

concerning the motion to strike.

This Court, being duly advised in

the premises, now finds that there is no

authority for the filing of a Motion to

Correct Errors as this cause now stands.

Accordingly, this Court furhter finds that

the relief sought in the Disciplinary

Commission's Motion to Strike should be

granted.

IT IS THEREFORE ORDERED, ADJUDGED,

AND DECREED by this Ccurt that Respond-

ent's “Motion to Correct Errors" and

Respondent's "Motion for Stay of Proceed-

ings” are now stricken.

DONE the 2lst day of February, 1978.

/s/ Richard M. Given

Richard M. Given

Chief Justice of Indiana

All Justices concur.

SUPREME COURT OF THE UNITED STATES

No. A-590

IN THE MATTER OF LEWIS T.

WIREMA!,

Petitioner

Ou.DER EXTE'IDING TIME TO FILE

PETITION FOR WRIT OF

CV. TIORARI

Cron Consideration of the application

Oo: counsel for petitioner,

If IS ORDERED that the time for

tiling a petion for writ of certiorari

in the above-entitled cause be, and the

same is hereby, extended to and including

March 13, 1978.

/s/ John Paul Stevens

Associate Justice of the

Supreme Court of the United

States

Date this 12

day of January, 1978.

IN THE MATTER OF

LEWIS T. WIREMAN

No. 5758122

SUPREME COURT OF INDIANA

DISCIPLINARY ACTION

PER CURIAM

This is a disciplinary proceeding

before this Court on an amended seven-

count complaint filed by the Disciplinary

Commission pursuant to Admission and

Discipline Rule 23, Section 12. A

Hearing Officer was appointed; this cause

has been heard; and the Hearing Officer

has filed his Findings of Fact, Conclusions

of Law and Recommendations. Respondent

now petitions this Court for review of the

findings of the Hearing Officer. Both

parties have filed briefs in this cause.

The respondent has submitted numerous

challenges to the procedure involved in

the trial of this matter and the rulings

of the Hearing Officer. These issues will

be addressed in their order of presentation

set forth in the briefs of the parties.

As his first assertion of error,

respondent argues that he was denied due

process of law by the Commission's alleged

failure to follow Admission and Discipline

Rule 23, Section 10(a)(2). The respondent

contends that this rule, which affords

the opportunity to respond to a grievance,

was not followed relative to violations

of the Code of Professional Responsibility

in that the initial complaint filed in

this cause asserted violations of Judicial

Canons and did not specifically assert

violations of the Code of Professional

Respondibility. Thus, respondent concludes

that he was denied due process as to the

charges of the complaint predicated on

violations of the Code of Professional

Responsibility.

This Court has recently held that a

disciplinary grievance will not be strictly

construed. In re Murray (1977),

Ind. , 128. In the

Murray Case, this Court set forth the

relationship of the grievance to the

complaint as filed by the Disciplinary

Commission.

"The complaint filed by the Disciplinary

Commission in all disciplinary cases is

predicated on the grievance filed, but

it would be absurd to hold that the

grievance must be strictly construed, and

the complaint must be narrowly limited

to charges specified in the grievance.

The vast majority of grievances are filed

by persons not skilled in the law; the

function of the Disciplinary Commission

is to review the grievances, dismiss

those which are baseless, and then frame

a complaint so as to place the alleged

misconduct within the structure of the

Code of Professional Responsibility.”

(362 N.E.2d at 130)

This language, above quoted, has

equal application to the present cause.

The respondent was advised of the general

nature of the charges against him.

Accordingly, we —_ that the purpose

of Admission and Discipline Rule 23,

Section 10(a)(2) has been met and there

has not been a denial of due process.

The respondent next asserts a

violation of the 14th Amendment of the

United States Constitution by reason of

the alleged failure of the Executive

Secretary of the Disciplinary Commission

to follow the provisions of Admission

and Discipline Rule 23, Section 10(b),

which provides as follows:

"Thereafter, within forty-five (45)

days, after notice to the Respondent, if,

the executive secretary, upon considera-

tion of the grievance, the preliminary

investigation and any response from the

respondent, determines there is a reasonable

cause to believe that the respondent is

guilty-of misconduct the grievance shall

be docketed and investigated. If he

determines that no such reasonable cause

exists, the grievance shall be dismissed

with the approval of the commission. In

either event, the person filing the

grievance (hereinafter referred to as

‘the complainant') and the respondent

shall be given written notice of the

executive secretary's determination.”

The records in this case demonstrate

that within forty-five days of the filing

of the grievance, the Executive Secretary

gave the following notice to the respondent:

"Reference the Request for Investiga-

tion grievance filed against you with this

Commission by J. Michael Piggott on

November 18, 1974, Section 10 of A.D.

Rule 23 requires the grievance be docketed

within forty-five (45) days of your receipt

of the above complaint, and since the in-

vestigation has not been completed, this

grievance has been assigned Docket Number

D-111874B.”

"Upon completion of the investigation,

you will be notified of the disposition

of said cause."

The respondent argues that since there

was no apparent finding of “reasonable

cause", he was denied due process.

While the letter of notification was

not the most artfully worded document and

did not specifically dovetail with the

provisions of Section 10(b), there is

no doubt that the cause was docketed

within the forty-five day requirement.

The docketing of this matter infers a

finding of reasonable cause. Thus, we

find no merit in this assertion of

error.

As his third assertion of error, >

the respondent argues that he was further

denied due process when a hearing was

not conducted within sixty days after

a determination of reasonable cause.

Respondent asserts that Admission/and

Discipline Rule 23, Section 13(a), which

authorizes the appointed Hearing Officer

to conduct a hearing within sixty days, is

a jurisdictional requirement; it is

respondent's position that the Hearing

Officer should have granted his motion to

dismiss after the sixty-day period had

expired without a hearing.

Due process, as applied to disciplinary

proceedings involving attorneys, requires

notice of the charges and an opportunity

to be heard. In re Ruffalo, 390 U.S. 544,

88 S.Ct. 1222, Ed. » reh. den. 391

U.S. 961, 88 S.Ct. 1833, 20 L.Ed. 874;

In re Stivers (1973), 260 Ind. 120, N.E.

——

2d 804; In re Murray,supra. Beyond these

requirements, there is no authority to

suggest that the expiration of a time

period would establish a constitutional

infirmity mandating dismissal of all

charges. There may be hypothetical factual

situations where this expiration of time

destroys the fundamental fairness of the

entire disciplinary process; however,

there is no evidence in the present case

to warrant such determination. Accordingly,

this Court now overrules Respondent's

Motion to Dismiss and assertions of error

predicated on the Hearing Officer's denial

of dismissal.—

The nest series of issues raised by

respondent center on the denial of pre-

trial discover. In re Murray, supra,

disposes of these issues. require-

ments of due process do not require pre-

trial discovery. Accordingly, we find

no merit in respondent's assertions of

respondent's "Motion for Production,

Inspection and Copying Documents and

Things", the refusal of police officers

to answer certain questions during pre- >

trial depositions, and the refusal of |

WASK News department reporters to answer

questions during pre-trial depositions. |

As a fifth general assertion of ~~

error, the respondent asserts that it

was improper for the Hearing Officer to

exclude testimony of news reporters by

reason of the Indiana Shield Law (I.C.

34-3-5-1).

This assertion of error stems from

an attempt by respondent to elicit

testimony from news reporters called as

witnesses by the respondent. Examination

v 48

of the transcript indicates that objection

was made to such testimony as being

immaterial and confidential under the

shield law. The majority of objections

were made when reporters were asked if

certain matters were discussed with

particular individuals. This type of

conversation is protected by the shield

law.

The transceipt further demonstrates

that on several occasions WASK News

reporters were questioned as to why their

course of investigation changed from a

news story to a disciplinary matter. We

find these questions to be irrelevant to

the issue before the Hearing Officer and

this Court, to-wit: The substantiation

of alleged violations of the Code of

Professional Responsibility and the Code

of Judicial Conduct and Ethics, as then

in effect. Accordingly, we now find

that the testimony from which this

assertion of error emanates was properly

excluded.

Respondent further asserts that he

was denied his right to confront his

accuser in that the party who filed the

initial grievance, J. Michael Piggott,

declined to testify under the Indiana

Shield Law. Respondent confuses this

proceeding with a criminal prosecution.

The party signing a grievance is not

parallel to the victim who signs a charg-

ing affidavit. Within the disciplinary

process, the Disciplinary Commission is

given the responsibility of making an

independent judgment as to the likelihood

of misconduct. It is the Disciplinary

Commission and not the grievant who

files the complaint.

The respondent also asserts that he

was improperly denied an opportunity to

demonstrate a waiver of the shield law

by news reporters. This argument is

misdirected. The record demonstrates

that respondent sought to develop,

through his interrogation of the news

media witnesses, that a conspiracy,

adverse to the respondent, existed among

such individuals. These individuals were

called by the respondent and did not

testify against him; additionally,

respondent does not argue that witnesses

presenting evidence against him were

involved in such conspiracy. Thus, as

the case developed at the hearing level,

respondent called witnesses, who had not

testified, attempted to develop a

conspiracy theory unrelated to adverse

witnesses, and was prevented from doing

so by the use of the shield law and the

rulings of the Hearing Officer. We

view the excluded testimony as irrelevant;

likewise, whether or not there was a

waiver of the shield law is irrelevant.

Several remaining issues may be grouped

within the consideration of whether, as a

matter of law, the failure of the respondent,

a Judge in a City Court, to disqualify

himself constitutes a basis for disciplinary

action. The respondent argues that, in

the cases giving rise to the present

proceedings, there was no showing that

disqualification was required. Thus,

whether he disqualified himself or not

was a discretionary matter and accordingly

not a proper basis for a disciplinary

proceeding. Alternatively, respondent

points out that if he did not properly

disqualify himself, the — came by

reason of a voidable judgment and not

through a disciplinary proceeding.

The respondent has confused the

function of a disciplinary proceeding and

an appeal. Under the Constitution of

this state, this Court must establish

and maintain standards of conduct for

attorneys and judges, most standards

being based upon the propriety of the

professional conduct involved. These

standards exist independent of the results

of litigation out of which may develop -—_.

an allegation of impropriety. The fact

that a judgment may or may not be voidable

is not determinative of whether the acts

of an attorney or judge constitute

misconduct. The standard is the code

and it is the particular conduct, not

the outcome of the litigation, which

determines whether or not there is a

violation. At a later point in this

opinion, the specific acts of the

respondent willbeset forth and measured

against the applicable code provisions.

Accordingly, this Court now finds these

assertions of error to be without merit.

Next, respondent argues that he

was improperly prohibited from introduc-

ing a taped conversation into the proceed-

ing. This conversation allegedly took

place between a police officer and one of

the witnesses against the respondent. The

police officer maintained possession of

the tape and at a later point turned it

over to the attorney for respondent. The

respondent attempted to introduce this

tape by playing it to the Disciplinary

Commission's witness for identification.

| This Court has previously held that

the requirements = forth in Lamar v.

State (1972), 258 Ind. 504, 282 N.E.2d,

, concerning the necessary foundation

for the introduction of a taped recording,

have general application in disciplinary

proceedings. In re Wood (1976),

Ind. , 258 N.E.2d, 128. The first

of these requirements is that a foundation

must be laid demonstrating that the tape

is authentic and correct. We find that

the playing of the tape to a witness in

open court is not a proper way to meet

this requirement. Thus, we conclude that

the tape was correctly excluded from the

record.

The respondent also asserts that he

was improperly precluded from showing

that a political conspiracy existed to

defeat him and bring discredit to his

party. The record demonstrates, however,

that this alleged conspiracy did not involve

any witness to the proceeding. The respondent

was allowed to demonstrate bias and prejudice

of the witnesses who testified; he was only

precluded from developing evidence of

prejudice of those who had not adversely

testified against him. This Court finds

that this evidence was immaterial and

properly excluded.

At the beginning of the proceedings

before the Hearing Officer, the respondent

requested and was granted a closed hearing.

The record indicates that on several

occasions the Hearing Officer admonished

witnesses, in the presence of counsel, not

to disclose their testimony to anyone

outside of the hearing room. It appears

readily clear to this Court that the

Hearing Officer meant exactly that; the

testimony was not to be disclosed to

anyone, including other witnesses.

Later in the hearing, it was

discovered that taped or transcribed

portions of the hearing were being

provided by the respondent to witnesses.

After learning of such practice, the

Hearing Officer suppressed the testimony

of respondent's witnesses who had been

furnished this prior testimony. Respondent

now asserts that this suppression of

testimony was improper.

The core of respondent's argument is

that although this was a closed hearing,

there was no formal separation of witnesses.

Thus, respondent concludes that it was

proper to provide the prior testimony to

witnesses.

We find that respondent's argument

elevates form over substance. The record

does not indicate that a formal separation

of witnesses was entered; however, the

record is clear that the Hearing Officer,

throughout the proceeding, considered this

a private hearing which incorporated the

protection of an order for separation. This

view should have been readily apparent to

counsel. Once a violation of the separation

of witnesses is disclosed, a trial court has

discretion as to whether or not to allow

the witness to testity. | te v. State

(1971) 257 Ind. 453, ' ee ’ ; °

V. state (1960), 241 ind. 104, 170 N.E.2a,—

73. This Court now adopts the ruling of

the Hearing Officer suppressing this testimony.

Respondent next asserts that the

testimony of David Banton, who was called

as a witness by the Disciplinary Commission,

should be suppressed in that this witness

was not available for cross-examination.

During the trial the Disciplinary Commission

attempted to show, through the introduction

of a hearsay document, that the respondent

procured the absence of this witness. We

find the Disciplinary Commission evidence ,

insufficient to establish this point.

Accordingly, in the interest of fairness,

we have excluded the testimony of David

Banton and the Disciplinary Commission's

exhbiits purporting to connect the

respondent to Mr. Banton's unavailability

from any consideration of misconduct.

The remaining assertions of error

concern the introduction of evidence,

evidentiary rulings, the substantiation

of alleged facts and conclusions to be

drawn from the factual findings. Assertions

of error along these lines need not be

individually addressed. As this Court stated

in the Murray Case, supra, ultimate findings

of fact upon sa Which a determination of

misconduct is weighed are reached through

a complete examination of all matters,

including the transcript. In the present

case, the process of review has included

examination of the record and all matters

submitted by the parties. The following

portion of this opinion sets forth the

factual findings and conclusions this Court

has reached.

Under Count I of the complaint, the

respondent is charged with violation of

Disciplinary Rules 1-102(A)(5) and (6),

7-105, 9-101(A) and (C) of the Code of

Professional Responsibility and Canon I

of the Code of Sodieial Conduct, as then

in effect.

After examining all matters which

have been submitted in this cause, this

Court now finds that in August, 1972, the

respondent, as attorney for Jacquelyn

S. Mathes, commenced a cause of action for

divorce against Larry Mathes in the

Tippecanoe Superior Court #2. This suit

was concluded by a decree of divorce

under which Mr. Mathes was to pay a sum

of $35 per week for the support of the

three minor children. Mr. Mathes, at

that time, paid the respondent attorney's

fees for the representations of Mrs. Mathes.

In early 1974, the respondent commenced

representation of Mrs. Mathes for the

collection of delinquent child support.

Along these lines, the respondent had

several personal conferences with Mr.

and Mrs. Mathes, eventually culminating

in agreement on the amount of support

arrearage.

In May, 1974, Mr. Mathes was found by

the Tippecanoe Supérior Court to be

delinquent in his child support obligations

in the sum of $175. Additionally, the

Court ordered Mr. Mathes to pay the respondent

reasonable attorney's fees in the sum of

$75 for his representation of Mrs. Mathes

in the contempt proceedings; $35 of this

fee was paid to the respondent.

In August, 1974, Mrs. Mathes whose

name was then Jacquelyn Sue Wright,

executed an affidavit charging her former

husband with the offense of having failed

to provide support for the parties’ minor

children; this cause was then filed in the

Lafayette City Court, where the respondent

was the duly elected and qualified judge.

Thereafter, the respondent entered an

order directina Larry Mathes to be served

the summons returnable on August 26, 1974.

On August 22, 1974, Mrs. Mathes signed an

application for contempt, which was filed

in the Tippecanoe Superior Court on August

26, 1974, Larry Mathes appeared before the

respondent in the Lafayette City Court; he

was not represented by counsel. No witnesses

appeared on behalf of the State, respondent

did not offer to disqualify himself, and

respondent did not advise Mr. Mathes that

he had a right to ask for a change of Judce.

Respondent thereafter accepted a plea of

guilty and withheld judgment for a period

of two years on condition that Larry Mathes

pay $45 weekly support for the benefit of

the three minor children. Respondent

further advised Mr. Mathes that if the

$45 per week was not paid, the defendant

would be subjecting himself to a fine of

up to $500 and incarceration of up to

six months. On September 9, 1974, the

Superior Court found Mr. Mathes to be $60

in arrears, and again ordered that the

respondent be paid $75 attorney's fees.

This Court finds that the conduct of

respondent in this matter was prejudicial

to the administration of justice, adversely

reflected upon respondent's fitness to

practice law, involved a threatened use of

criminal proceedings to enforce civil

obligations, involved private employment

in areas where the judge had acted in a

judicial capacity, and inferred that the

respondent could improperly influence a

judicial decision. Accordingly, this Court

finds that the gonduct of the respondent

violated the provisions of the Code of

Professional Responsibility set forth in

Count I of the complaint. Also, the

conduct of respondent in this matter was

improprietous and accordingly violated

Canon I in the Code of Judicial Conduct,

as then in effect.

Under Count II of the Amended Complaint,

the respondent is charged with violating

Disciplina Rules 1-102(A)(5) and (6)

of the eels ad Professional Responsibility

and Canon I of the Code of Judicial Conduct,

as then in effect.

After examination of all matters which

have been submitted in this cause, this

Court now finds that in August, 1972, the

respondent, as attorney for Vivian E. Hunter,

commenced an action for support against Mrs.

Hunter's husband, Kenneth Hunter, in the

Tippecanoe Superior Court #2. This action

was subsequently dismissed-with Mr. Hunter

paying $300 attorney's ffes; however, in

May, 1973, the respond filed a similar

action for Mrs. Hunter, again in the

Tippecanoe Superior Court. This proceed-

ing concluded by a decree of divorce under

which Kenneth Hunter was to pay $30 per

week child support and an additional $300

attorney's fees. In May, 1974, Mrs. Hunter,

with respondent appearing as counsel,

filed an application for contempt citation

against Mr. Hunter in the Tippecanoe

Superior Court. This matter was concluded

without hearing. In August, 1974, Mrs.

Hunter executed an affidavit charging her

former husband with the offense of failing

to provide support, and this cause was

filed in the Lafayette City Court where

the respondent was the duly elected judge.

On September 5, 1974, Mr. Hunter appeared

before respondent and entered a plea of

guilty. The respondent withheld judgment

for a period of two years on condition that

Mr. Hunter pay $30 per week for the minor

children. Respondent advised Mr. Hunter

that if he did not pay the support

ae Mr. Hunter, would be

to °

wer nis Geet now finds that the acts

of respondent were prejudicial to the

administration of justice, adversely

reflected on respondent's fitness to

practice law, and were highly improprietous

for a judicial officer. Accordingly, the

Court further finds that the respondent's

conduct violated the provisions set forth

under Count II of the Amended Complaint.

In Count IV of the Amended Complaint,

respondent was charged with violating

Disciplinary Rule 1-102(A)(5) and (6)

and 9-101(C) of the Code of Professional

Responsibility and Canon I of the Code of

Judicial Conduct, as then in effect.

This Court finds that the respondent

represented David S. Banton in criminal

and civil matters. In 1973, four proceedings

were commenced against David S. Banton in

the Lafayette City Court. The respondent

did not disqualify~ himself as judge of

the Lafayette City Court in any of the

cases. On June 16, 1974, David S. Banton

was arrested by Lafayette police on charges

of driving under the influence of alcohol,

fleeing a police officer, and running a

stop sign. At that time, normal police

procedure required a person arrested for

driving under the influence would remain

in police custody for several hours.

Mr. Banton made two phone calls when he

arrived in the Police Station. Within

five minutes respondent called Lafayette

Police and directed that David Banton be

released without bond on his own recognizance.

This Court now finds that the conduct

of the respondent in this matter was

prejudicial to the administration of justice,

adversely reflected on respondent's fit-

ness to practice law, suggested that the

respondent could influence, improperly,

judicial decisions and involved improprietous

acts for a judicial officer. Accordingly,

this Court further finds that the conduct

of the respondent constitutes a violation

of the provisions cited in Count IV of the

Amended Complaint.

Under Count V of the Amended Complaint,

the respondent is charged with violating

Disciplinary Rules 1-102(A)(5) and (6),

9-101(C) of the Code of Professional

Responsibility, and Canon I of the Code

of Judicial Conduct. This Court now

finds that the respondent, as an attorney,

represented Richard Dean Smith. In 1974,

the respondent sat in Lafayette City Court

on various cases involving Mr. Smith. The

respondent did not disqualify himself in

any of these matters.

The Court further finds that prior to

these cases being filed, respondent had

encouraged Richard Dean Smith and others

to perpetrate first-degree burglary. This

conduct indicates acts prejudicial to the

administration of justice, adversely

reflects on respondent's fitness to

practice law, implies the improper

ability to influence judicial decisions,

and was highly impropietous for a

judicial officer.

This Court now finds that the

respondent violated the Code of Professional

Responsibility and the Code of Judicial

Conduct as charged under Count V of the

Amended Complaint.

Under Count VI of the Amended

February 9, 1974, Richard Dean Smith and

Paul Banton burglarized the residence of

William R. Osborn, removing, among other

things, numerous hand guns and rifles.

Prior tc this burglary, the respondent had

informed Smith and Banton of the existence

of an expensive gun collection in the home

of Mr. Osborn. After the burglary, the

respondent purchased and received at least

one hand gun and three rifles which had

been stolen from the Osborn residence,

knowing them to have been so stolen.

This Court now finds that the acts

of respondent involved illegal conduct,

constituted conduct involving dishonesty,

and adversely reflected on respondent's

fitness to practice law. Accordingly,

the Court further finds that the respondent

violated the Code of Professional

Responsibility as charged under Count VI

of the Amended Complaint.

Under Count VII of the Amended

Complaint, the respondent is charged

with violating Disciplinary Rules 1-102 (A)

After esamin the matters which have

been submitted i is cause, the Court now

finds that on or about March 15, 1974,

Richard Dean Smith and Paul Banton burglarized

the home of Maurice E. Callahan, removing,

among other things, miscellaneous coins.

Prior to this burglary, the respondent

had advised Mr. Smith and Mr. Banton that

he was interested in obtaining these coins

by illegal means.

This conduct involved illegal acts,

involved dishonesty, and adversely reflects

on the respondent's fitness to practice law.

Accordingly, this Court now finds that the

respondent has violated the Code of

Professional Responsibility as charged

under Count VII of the Amended Complaint.

It now becomes the duty of this Court

to determine the appropriate discipline

in this case. This Court has stated in

previous cases that such decisions are

reached by taking into consideration the

nature of the violations, the specific

acts of the respondent, this Court's

responsibility to preserve the integrity

of the bar, the risks, if any, to which

we will subject the sublic by permitting

the respondent to continue in the profession

or be reinstated at some future date, and

the deterrent effect that the imposition of

discipline has on the bar in general. In

re Murray, supra; In re Wood, supra; In re

Noel T13%6) - tnd. , 3200 NE.

2d, 623. It is obvious, from an examina-

tion of the findings of this Court, that

respondent does not begin to measure up

to acceptable standards of professional

conduct. He has engaged in illegal,

dishonest, and reprehensible activity.

He has blurred the function of an attorney

into his acts as a judicial officer. The

respondent is a grave discredit to the

legal profession.

With these considerations in mind, we

now conclude that in order to preserve the

integrity of the legal profession, in

order to protect the public from future

conduct demonstrated in this case, and

in order to show this Court's total

abhorrence in the conduct of the respondent,

the maximum disciplinary sanction authorized

by the Constitution of the State of Indiana

must be imposed in this case. Accordingly,

by reason of the misconduct found under the

above specified counts of the Amended

Complaint, it is now ordered that the

respondent be, and he hereby is, disbarred

as an attorney in the State of Indiana.

Costs of these proceedings are assessed

against the respondent.

F. The Respondent was denied due

process of law under each of the follow-

ing particulars:

1. The hearing was not held

within 60 days of the finding of

reasonable cause by the Disciplinary

Commission under Disciplinary Rules,

and in fact the Hearing Officer was

not appointed within such time.

2. The Hearing Officer stated on

occasions during the hearing that he was

not applying the strict rules of evidence

when he permitted witnesses for the

Disciplinary Commission to answer

questions, but in refusing to permit

Phyllis Wireman and Paul Banton to

testify, he did so based upon supposed

rules of evidence. At the time from

the evidence the Hearing Officer knew

that Paul Banton was a crucial witness

for the Respondent, he being the one

person Disciplinary Commission Witness

Richarg Smith placed with all con-

versation supporting Counts VI and VII.

3. The Hearing Officer stated on

occasions during the hearing that he

‘was not applying the strict rules of

evidence when he permitted witnesses

for the Disciplinary Commission to

answer questions, but in refusing to

strike the evidence of David Banton,

he did so based upon supposed rules of

evidence.

4, The Hearing Officer on cross-

examination refused to permit the Respond-

ent to ask Disciplinary Commission witness,

Richard Smith, whether particuiar state-

ments on Exhibit 12 were correct, but

on redirect examination by the Disciplinary

Commission, over objection by Respondent

he permitted such questions to be asked

and answered by Richard Smith.

5. The Hearing Officer refused to

permit the Respondent to question witnesses

on a conspiracy against Respondent

between Michael Riley, a candidate for

Mayor; Police Officers Eberle and

Holmes; and J. Michael Piggott; or

to examine into the reasons for

J. Michael Piggott in filing the

original complaint.

6. The Hearing Officer by determin-

ing that J. Michael Piggott was not

the complaining witness, but that rather

the Disciplinary Commission, denied

Respondent the right to enforce his

testifying under his oath on his original

complaint.

7. The Hearing Officer, by with-

holding his ruling on Respondent's Motion

to Strike the testimony of David Banton

particularly prevented Respondent asking

questions going to this testimony, since

by so Going Respondent could be opening

the door to matters that may not even-

tually be in evidence if the testimony

was stricken.

8. The Hearing Officer was incon-

sistent in overruling and sustaining

objections to questions concerning

matters shown on Exhibits, on matters

concerning Grand Jury testimony and on

hearsay evidence.

Issue B-12, E-l and F-2 concern

the examination of the Respondent's

wife, Phyllis Wireman. After asking

her name, the Disciplinary Commission

moved that the Hearing Officer hear no

further testimony on the grounds that

Laura Shepard had testified that they

had listened to the tape of Sgt. Holmes.

He maintained this had violated the rule

concerning separation of witnesses

and the private nature of the hearing.

(This occurred before March 10).

The Hearing Officer sustained the motion

of the Commission that she not be

permitted to testify. An offer to

prove was then made. (Tr. p. 1567~

1568, q.1-6). This issue is based

upon the Hearing Officer's error in

this ruling. Issue No. E-1 maintains

that this ruling is contrary to law,

and Issue F-2 that this ruling denied

the Respondent his constitutional

right of due process of law.

Issue B-13 after Paul Banton,

a witness for Respondent was asked

his name and address, the Disciplinary

Commission moved to supress any an?

all testimony of Mr. Banton because he

had read the testimory of Richard Dean

Smith. It was explained by Respondent

that this had happened prior to the

rule of the Court of March 10, and that

the transcript was picked up from Mr.

Banton the following day, Thursday,

March 11, The Hearing Officer sustained

the Disciplinary Commission's motion,

and an offer to prove was made. (Tr. p.

1628-1635). It is again submitted that

this was an improper ruling by the Hear-

ing Officer.

Issue F-2 contends that this rul-

ing violated Respondent's constitutional

right of due process of law.

It is first submitted that, under

the circumstances herein, the ruling

of the Court was an abuse of discretion,

and was a violation of Respondent's

constitutional right under the Sixth

Amendment of the Constitution to be

confronted by witnesses, and his right

to compulsory process under the Sixth

Amendment and a denial of due process

of law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.