# Petition — Wireman v. Indiana Supreme Court Disciplinary Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 904

## 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.

1

43

62

63

10
10
11

Fourteenth Amendment.....
Indiana Constitution

Agesiele 3. Shewse ctv evese

Aeetaiea 2. Ghc.ccbecdeeerand 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

9

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

10

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

11

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
12

(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,

13

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

14

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

15

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.

(C) A lawyer shall not state or

16

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;
or

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.

17

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
18

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

19

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

20

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.

21

(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)
(c) Mr. Phillip Hammond - Petitioner
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

22

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

23

(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.

(c) Permitting cross-examination of Petitioner

on substantive matters which the record clearly
24

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

25

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

26

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
28

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.
s
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 ) 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

32

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

33

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)
34

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.
47

——

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
error arising from the overruling 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.

49

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.

52

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

53

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

54

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

55

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

56

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
57

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,

58

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
59

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.

60

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

61

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-

62

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
63

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.

64

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0583%3A1. Public record. Not legal advice.