BRIEF OF APPELLEE - The Indiana Law Blog

TN TIlE
COURToFAPPEALSOFll{DLANA
CAUSE No. 87A01- l 102-CR-25
DAVID R. CAMM 1
Appel/anI (Dejendcinf below),
v.
STATE OF lNDIANA,
Appellee (Plaintiff below).
Interlocutory Appeal from the Superior
Court of Wanick County: Court II
Cause No. 87D02 - 0506~MR- 054
Hon. Jon A. Da11t Special Judge.
BRIEF OF APPELLEE
GREGORYF. ZOELLER
All mey General of Indiana
Atty. No. J 58-98
Joby D. lerrells
Deputy Attorney General
Alty. No. 24248-53
Office ofAttomey Genera]
Indiana Government Center
South, Fifth Floor
302 West Wasbington Street
Indianapolis, TN 46204~2770
Telephone: (3 17) 232-6232
Attorneys for Appellee

TABLE OF CONTENTS
Table of Authorities .......... ......................... ..................................... ..................... .................... ii
Statement of the Issue .................................................................. ........................................ .. .. 1
Statement of the Case ....... ........................................................................................................ 1
Statement of the Facts ............................................................................................................. 3
Summary of the Argumt:nt. ...................................................................................................... 8
Argument:
THE COURT PROPERLY DENIED DEFENDANT'S PETITION FOR SPECIAL
PROSECUTOR BECAUSE HE FAILED TO PROVE AN ACTUAL CONFLICT
BY CLEAR AND CONVINCING EVIDENCE ..................................................... 10
Standard of Re 1 1iew ...... ....................................................................... 10
A. This Court must decline Defendant's invitation to address attorney
disciplinary matters outside the Court's jurisdiction ................................ 10
B. Defendant failed to prove an actual conflict by clear and convincing
evidence .................................................................................. , ........ ..... .... J 2
1. The trial court reached the right result, even if for the wrong
reason ....................................................................... ..... ........ ....... 13
2. There is no actual conflict.. .......................................................... 15
3. Removal is not necessary to avoid an actual conflict when
sequestered voir dire and jury questionnaires will suffice .......... 29
Conclusion
.................... ....... ................... ....... ..... ........................................................ ..... 33
Word Count Certificate .... ................................................. , ....... ................. .. ......... ................. 34
Certificate of Service ............................................................................................................. 34

Table of Authorities
CASES
Banton v. State, 475 N.E.2d 1160 (Ind. Ct. App. 1985) ................................................................ 29
Beets v. Collins, 65 F.3d 1258 (5th Cir. 1995) .............................................................................. 14
Bennett v. NSR, Inc., 553 N.E.2d 881 (Ind. Ct. App. 1990) .......................................................... 11
Camm v. State, 812 N.E.2d 1127 (Ind. Ct. App. 2004) ........................................................ passim
Camm v. State, 908 N.E.2d 215 (Ind. 2009) ......................................................................... passim
Carter v. Knox County Office of Family and Children, 761 N.E.2d 431 (Ind. Ct. App.
2001) ................................................................................................................. ..... .................. 11
Conner v. State, 580 N.E.2d 214 (Ind. 1991) ................................................................................ 30
Cunningham v. State, 835 N.E.I075 (Ind. Ct. App. 2005) ............................................................ 11
Cuyler v. Sullivan, 446 U.S. 335 (1980) (App. 250) ..................................................................... 14
Fitzpatrick v. Kenneth J Allen and Associates, P.e., 913 N.E.2d 255 (Ind. Ct. App. 2009) ........ 11
Garran v. State, 470 N.E.2d 719 (Ind. 1984) ................................................................................ 10
Haraguchi v. Superior Court, 182 P.3d 579 (Cal. 2008) ....................................................... passim
Hollywood v. Superior Court, 182 P .3d 590 (Cal. 2008) ........................................................ 26, 27
In re McKinney, 948 N.E.2d 1154 (Ind. 2011) .... .................................................................... 28, 29
Johnson v. State, 675 N.E.2d 678 (Ind. 1996) ................................................................... 16, 29,32
Jorgensen v. State, 567 N.E.2d 113 (Ind. Ct. App. 1991) ............................................................. 13
Kindred v. State, 521 N .E.2d 320 (Ind. 1988) ............................................................................... 13
Kubsch v. State, 866 N.E.2d 726 (Ind. 1996) ..................................................... .. ................. passim
Lamotte v. State, 495 N.E.2d 729 (Ind. 1986) ............................................................................... 16
Liggett v. Young, 877 N .E.2d 178 (Ind. 2007) .................. ............................................................. 11
Little v. State, 819 N.E.2d 496 (Ind. Ct. App. 2004) ..................................................................... 11
11

Matter of Curtis, 656 N.E.2d 258 (Ind. 1995) ............................ ....................... .. .. ........................28
Matter of Ryan, 824 N .E.2d 687 (Ind. 2005) ..................................... .......... .......... ........................28
McFarlan v. Fowler Bank City Trust Co., 214 Ind. 10, 12 N.E.2d 752 (1938)...... .......... .. .. ......... 10
Pelley v. State, 901 N.E.2d 494 (Ind. 2009) ................................ ......................... ................... 15, 21
Penguin Books USA, Inc. v. Walsh, 756 F. Supp. 770 (S.D.N.Y. 1991) ......................... ..............22
People v. Eubanks, 927 P.2d 310 (Cal. 2008) ...............................................................................16
People v. Sims, 612 N.E.2d 1011 (Ill. Ct. App. 1993) ... .. .. .. ... ............ ... .. ......... .... ......... .. ...... passim
Press Enterprise Co. v. Superior Court (I), 464 U.S. 501 (1984) .............................. ........... ...... .. 31
Roeder v. State, 696 N.E.2d 62 (Ind. Ct. App. 1998) ..................... .......... .... ... .... ..... ..... ................18
Sears v. State, 457 N.E.2d 192 (Ind. 1983) ...................................... ...... .... .... .... .. .. .......... ..............10
Shaw v. Garrison, 467 F.2d 113 (5th Cir. 1972) .................. ..................... ...... ........................ 17, 18
State ex reI. Long v. Warrick Circuit Court, 591 N.E.2d 559 (Ind. 1992) .. .................. .......... 13, 29
Stale ex ReI. Steers v. Holovachka, 236 Ind. 565, 142 N.E.2d 593 (1957) .............. ..... .. .. ...... ...... 10
Strickland v. Washington, 466 U.S. 668 (1984) ........ ..... .. ....... ...................................... ........ .. ......14
Stroble v. California, 343 U.S. 181 (1952) ....................................... .. .. ............... ..... ..... .... .. ..,.... ... 31
Tippecanoe County Court, 432 N.E.2d 1377 (Ind. 1982) ............ ............... ......................... .. .. ...... 28
United States v. Blanton, 719 F.2d 815 (6th Cir. 1983) ........... ......... ... .... ... ........ ..... ........... ........ ... 31
United States v. Booker, 641 F.2d 218 (5th Cir. 1981) ....................... ........... ................. .........31, 32
111

RULES
Ind. Appellate Rule 4(B)(1 )(b) .............. ............... ... ...................................... ................................ 10
Ind. Appellate Rule 46(A)(6) ...................... ........................... ...... ... ................................................ .3
Ind. Professional Conduct Rule 1.7 ................................................................. ................................ 7
Ind. Professional Conduct Rule 1.8(d) ......... .................................................................. 7, 20, 21, 25
Ind. Professional Conduct Rule 3.3(a)(1) ............ ........................................................................ 3, 7
Ind. Professional Conduct Rule 3.6 ................................................................................................. 7
Ind. Professional Conduct Rule 3.8 .... ............................................................................................. 7
Ind. Professional Conduct Rule 8.4(c) ........... ..... .... ....................... ..... ........ ................................ ..... 7
STATUTES
Ind. Code § 33-39-1-6(b)(2) .......................................................................................................... 13
CONSTITUTIONAL PROVISIONS
Ind. Const., Art. 7, Sec. 4 ........................... .... .. .............................................................................. 10
OTHER AUTHORITIES
48 Hours, One Deadly Night (http://www.cbsnews.com/storiesI2006/12/07/48hours/main
2238837.shtml) ........................................................................................................................ 25
ABA Standards for Criminal Justice: Fair Trial and Free Press (3d Ed. 1992) ............................. 31
ABA Standards for Criminal Justice: Prosecution Function and Defense Function (3rd
Ed. 1993) ............................................................................................................................ .. .... 20
American Law Institute, Restatement (Third) of the Law Governing Lawyers § 121 cmt.
B) .............................................................................................................................................. 15
IV

Mike McCarty, Choking in Fear (Arner Book Pub 2004) ............................................................ .25
Internet Movie Database, JFK (http://www.imdb.com/title/ttOl 0213 8f) ...................................... 18
Jeffrey Toobin, Opening Arguments: A Young Lawyer's First Case (Viking 1991) ..... ............ ... 22
John Dean, The Indiana Torture Slaying: Sylvia Likens' Ordeal & Death (BorfBooks
1999) ................. ... ..... ................ ................................ ............... ....... .................. ... .................... 25
John Gibeaut, Defend and Tell: Lawyers who Cash in on Medial Dealsfor Their Cleints'
Stories may Wish They'd Kept their Mouths Shut, 82-DEC AB.A 1.64 (1996) ................... 20
John Glatt, One Deadly Night (St. Martin's Press 2005) ...... .. ............................. ..................... ..... 25
John P. MacKenzie, "Peddling Iran-Contra Secrets," New York Times Editorial
(February 8, 1991) ........... .. ... ....... ... .. ... ...... .... .......................................................................... 22
Kathleen M. Ridolfi and Maurice Possley, Preventable Error: A Report on Prosecutorial
Misconduct in California 1997-2009 (Veritas Initiative) (Oct. 2010) ......... ........................... .15
Marjorie P. Slaughter, Lawyers and the Media: The Right to Speak Versus the Duty to
Remain Silent, 11 Geo. 1. Legal Ethics 89 (1997) ...... .. ............................................................ 20
Mark McDonald, Literary-Rights Fee Agreements in California: Letting the Rabbit
Guard the Carrot Patch of Sixth Amendment Protection and Attorney Ethics?, 24
Loy. L.A. L. Rev. 365 (1991) .................................................................................................. 21
Morley Swingle, Scoundrels (0 the Hoosegow: Perry Mason Moments and Entertaining
Cases from the Files of a Prosecuting Attorney (University of Missouri Press 2007) ....... ... .. 22
New York State Bar Association Ethics Op. 606 (1990) ............................... ................................ 21
Rachel Luna, The Ethics of Kiss-and-Tell Prosecution: Prosecutors and Post-Trial
Publications, 26 Am. J. Crim. L. 165 (1998) ................ .......................................................... 20
Ria A Tabacco, Defensible Ethics: A Proposal to Revise the ABA Model Rules for
Criminal Defense Lawyer-Authors, 83 N.Y.U. L. Rev. 568 (2008) ........................................ 20
Rita M. Glavin, Prosecutors who Disclose Proescutorial Information for Literary or
Media Pwposes: What About the Duty of Confidentiality?, 63 Fordham L. Rev. 1809
(1995) ........... ........ ........................ .............. ... .. ................................. .. ... ................................. .. 21
Steve Miller, Girl Wanted: The Chase for Sarah Pender (Berkley 2011) .................. ................. .25
Thomas Henry Jones, Fear no Evil (St. Martin's Press 2002) ...................................................... 25
Tom Wolfe, Pornoviolence in Mauve Gloves & Madmen, Clutter & Vine and other
stories, sketches and essays (Farrar 1976) ............................................................................... 22
v

Truman Capole, In Cold Blood (Signet 1965) .... ............................................................... ............ 22
Vincent Bugliosi, And the Sea WiLl Tell: Murder on a Desert/sland (md Justice (Norton
199 1) .......................... ................... .. ......................... .................................................. ........ ..... . 22
Vincent Bugliosi, He/fer Ske/(er: The True Story 0/ the Alanson Murders (Bantam 1975) .......... 22
Wensley Clark, Deadly Seducliol1 (SI. Martin's Press 1996) .................................................. ...... 25
WLKY News, Camm To Be T;'jed Third Time In Family 's Slaying (http://www.wlky.com
Inewsl2 1797043/dctai l.html) ................................................................................................... 17
VI

IN THE
COURT OF APPEALS OF INDIANA
CAUSE No. 87A01-1102-CR-25
DAVID R. CAMM,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Interlocutory Appeal from the Superior
Court of Warrick County, Court II
Cause No. 87D02-0506-MR-054
Hon. Jon A. Dartt, Special Judge.
BRIEF OF APPELLEE
STATEMENT OF THE ISSUE
Whether the trial court properly denied Defendant's petition for special prosecutor when
Defendant failed to present clear and convincing evidence of an actual conflict of interest.
STATEMENT OF THE CASE
Nature of the Case
David R. Camm ("Defendant") brings this interlocutory appeal from the trial court's
denial of his petition for a special prosecutor (App. 282-83).
Course of the Proceedings
On October 1, 2000, the State charged Defendant with murdering his wife, Kimberly, and
his two children, Bradley and Jill.! Camm v. State, 812 N.E.2d 1127, 1130 (Ind. Ct. App. 2004)
(hereinafter "Camm r). Over the next decade, two juries - twenty-four people in all-
I Prosecutor Stan Faith filed the charges in and prosecuted Camrn 1. Keith Henderson filed the
charges in and prosecuted Camm 11.

impaneled from two different counties found Defendant guilty of the charges. See Id. at 1130;
Camm v. State, 908 N.E.2d 215,220,238 (Ind. 2009) (4-1 decision) (hereinafter "Camm IF').
On June 26, 2009, our Supreme Court reversed in Camm II, but addressed issues likely to arise
on retrial in light of sufficient evidence to support Defendant's convictions. Id. at 220-21. On
July 27, 2009, the State filed a petition for rehearing (Docket, Cause No. 87S00-0612-CR-499).
On November 30, 2009, a divided court denied the State's petition for rehearing, three votes to
two, without further opinion CAppo 39).
On December 1,2009, Defendant filed a petition for a special prosecutor in the trial court
(App.30-38). On December 14, 2009, the State filed its response to Defendant's petition CAppo
44-45). Defendant filed a reply on December 18,2009, and requested a hearing (App. 51-55).
On July 14, 2010, our Supreme Court removed Judge Aylsworth from the case and appointed
Judge Dartt CAppo 100-01).
On September 13,2010, Defendant moved to continue the hearing on his petition, to
which the State objected (App. 152-56). The court conducted a hearing on November 24,2010
(Tr. 1; App. 10). Defendant filed a memorandum in support of his petition on December 6, 2010
(App. 10, 199-220). The State filed its memorandum opposing the petition on December 8,
2010 (App. 221-32). On January 7, 2011, the court denied Defendant's petition for special
prosecutor (App. 248-52).
On January 20, 2011, Defendant filed a motion to certify the court's order for
interlocutory appeal, which the court granted on the same day (App. 256-58). On February 3,
2011, Defendant requested this Court to accept jurisdiction. CAppo 261-77; Docket). On
February 16, 2011, the State submitted its response, indicating the State had no objection to this
2

Court exercising jurisdiction over the case (App. 279; Docket). On March 11, 2011, this Court
accepted jurisdiction over the interlocutory appeal (App. 281).
On March 18, 2011, Defendant filed his notice of appeal (App. 12, 282-83). On April
13, 2011, the clerk filed a notice of completion of clerk's record indicating the transcript was not
yet completed (App. 285; Docket). On June 16,2011, the transcript was completed (App. 288;
Docket). On July 18, 2011, Defendant filed his Brief of Appellant and Appendix, by personal
service (Docket).
STATEMENT OF THE FACTS 2
Frank Weimann is a literary agent 3 for Literary Agency East, Ltd. (a/k/a "Literary Group
International" and "LOI") (Exh. O. 5, 14, H.A). Weimann began representing Keith Henderson,
the elected prosecutor in the current case, on March 10, 2006 (Exh. G 8, 11, Exh. H.A). The
initial duration of Weimann's agreement with Henderson was for one year, renewing
automatically unless terminated by the parties in writing (Exh. H.A 1). Weimann initially
contacted writer Steve Dougherty to co-author a book with Henderson regarding the Camm
murders (Exh. 024). Dougherty and Henderson drafted a book proposal and submitted it to
Weimann (Exh. F.A). Dougherty, however, did not believe the book deal was good enough for
him and eventually withdrew from the project (Exh. 025). After Dougherty withdrew,
2 Defendant's Statement of the Facts contains argumentative claims without citation to the
record, e.g.: (1) "Thus, the amount of money Henderson was to make is dependent on the
number of books he sold." Br. of Appellant at 4. The publisher actually expected Henderson's
book to break even and noted that royalties paid to the authors often "fall short" of covering the
advance (Exh. F 34-35); and (2) "After hearing nothing back from Henderson's agent, Penguin
began tennination paperwork." Br. of Appellant at 5. The record indicates that Penguin agreed
with Henderson's suggestion that the best solution was to void the contract and for Henderson to
repay the advance (Exh. F.I). See Indiana Appellate Rule 46(A)(6) (requiring page references to
the record and requiring facts to be stated in accordance with the standard of review). See also,
Ind. Professional Conduct Rule 3.3(a)(1) (requiring candor toward the tribunal).
3 A literary agent is an intermediary between authors and publishers (Exh. G. 5).
3

Weimann subsequently made other arrangements with another writier, Damon DiMarco, to coauthor
the book (Exh. G 26).
To promote a project, Weimann's practice was to contact publishers using a "pitch"
letter, which sometimes included a book proposal (Exh. G 33). Weimann contacted Harper
Collins on October 6, 2008, to determine if there was any interest to publish the book, but there
was none (Exh. G 31; Exh. H.C). On November 24, 2008, Bantam Dell Publishing Group also
passed on the book (Exh. G 33; Exh. H.D). On June 3, 2009, Weimann negotiated a publishing
agreement between HenderS0I! and the Berkley Penguin Group, a publisher, regarding the Camm
murders tentatively titled "Sacred Trust: Deadly Betrayal" (Exh. G 15; Exh. H.B).4 The parties
did not specifically anticipate a reversal of Defendant's convictions; however, the contract
included a cancellation clause (Exh. E 29). The non-delivery of the manuscript would have
triggered the cancellation clause, terminating the publishing contract (Exh. E 29). The typical
advance for a true crime book is approximately $10,000.00, which is the amount Penguin
eventually offered (Exh. E 21, 49).
Penguin previously prepared a pre-acquisition profit and loss statement with Henderson
and Dougherty as the authors for an estimated publication date during the summer of201 0 (Exh.
E 42, F.D). The statement shows that Penguin predicted gross sales of approximately
$95,880.00 and net sales of $47,940.00 (Exh. F.D). Penguin estimated the company would make
a gross profit of $30,782 (Exh. F .D). When a book is successful, the author can earn royalties;
however, based on past experience, Penguin expected Henderson's book to break even (Exh. E
34-35). In Penguin's publishing experience, subsequent royalties to authors often "fall short" of
4 Henderson and DiMarco also suggested two other titles for the book, including: "Murder in the
Midwest: The Second and Final Trial of David Camm" and "Murder in the Midwest: The Final
Trial of David Camm" (Exh. F.C).
4

manuscript for a book from HF:!1derson and Henderson never shared with Weimann any
information or evidence about the case that was not already part of the public record (Exh. G 76,
84). In Weimann's opinion, if Defendant were convicted by a third jury, it "might help the
book" (Exh. G 98). Or, if Defendant were found not guilty, "the big, bad prosecutor, innocent
man, you know, accused of a terrible crime and ultimately wins - that's a big book too" (Exh. G
99).
Irrespective of the outcome of Defendant's third trial, Weimann stated that if Henderson
wanted to write a book after the third trial, Henderson would have to start over, i.e., find an agent
and a publisher (Exh. G 97-98). Henderson has no present contract to write a book regarding the
Camm murders (Exhs. E 40,51, G 96-97). Penguin's representative also concurred that there is
no "wink-and-a-nod" agreement with Henderson regarding a book about a third trial (Exh. E 52,
54).
At the hearing on the petition for special prosecutor, the parties agreed to the
admissibility of Defendant's exhibits (Tr. 7-8). On December 2, 2009, Henderson issued a press
release in response to Defendant's petition for special prosecutor (Exh. J). Henderson reiterated
that there was no book deal related to the case and that once the case was reversed, the
publishing agreement was terminated (Exh. J). Henderson did state, however, that he was "more
convinced now than ever that when this matter is completed, the unedited version of events
needs to be told" (Exh. J). On December 3, 2009, Henderson issued another press release
indicating that he would re-try Defendant for killing his wife and children (Exh. K). The
December 3rd press release contained similar language regarding the book deal and termination
of the agreement (Exh. K). Henderson also relayed that the Supreme Court had stated in its
6

opinion that "there's ample evidence outside of the child molest evidence for the convictions"
(Exh. K).
At the hearing on Defendant's petition, Defendant presented one witness, Norman
Lefstein, a law professor, who was paid $275.00 per hour for approximately twenty hours of
work on the case (Tr. 75). Lefstein opined that the two press releases violated the Rules of
Professional Conduct, specifically Rule 3.6 (trial publicity) and 3.8 (special responsibilities of a
prosecutor) (Tr. 25). Lefstein also reviewed two pleadings filed on August 29,2007, which the
State filed in response to Defendant's proposed statement of evidence regarding the record
during the direct appeal (Exhs. B, C). Both Henderson and his Chief Deputy, Steve Owen,
represented their recollection of the events about the record in response to Defendant's pleadings
(Exhs. B, C). Lefstein opined that the responsive pleadings violated Rule 3.3(a)(l) (candor
toward the tribunal) and 8.4(c) (misconduct, dishonesty, fraud, deceit, or misrepresentation) (Tr.
25). Lefstein further opined that Henderson's previous book deal violated Rule 1.8( d) (conflict
of interest, literary rights) and Rule 1. 7 (conflict of interest, current clients) (Tr. 46-47).
After reviewing the depositions, pleadings, and exhibits, Lefstein ultimately concluded in
his opinion that "it seems to me that the State of Indiana is entitled to a prosecutor in this case
who is not unfettered by such a reality here ... who does not have the same past with this case
that Mr. Henderson clearly does" (Tr. 70). Lefstein admitted that the book deal had been
terminated in August of 2009, and that Henderson had no contract at that time (Tr. 78, 86).
Lefstein conceded that Henderson was not violating Rule 1.8(d) at the time of the hearing (Tr.
86). Lefstein further opined that the conflicts rule continued until it was "really clear" there was
no potential for re-prosecution, even through post-conviction (Tr. 95). In Lefstein's opinion, a
book deal, even if done for free, creates a conflict of interest dividing the loyalties of the
7

prosecutor between his own self-interest and his duty to be a minister of justice (Tr. 96-98).
Lefstien also stated that a prosecutor may even commit unethical acts during the prosecution of a
given case which would not necessarily lead to disqualification or justify removal of the
prosecutor from the case (Tr. 109).
After taking the matter under advisement, the Court issued an order denying Defendant's
petition for special prosecutor (App. 248-52). The court found that there was no longer an
agreement to publish a book arising from the instant case but that Henderson might pursue a
book deal at some time in the future (App. 249). The court noted: "It is not for this Court to
determine what ethical violations occurred, if any, and then what sanction should be imposed on
the prosecutor for those violations" (App. 251). The court further reasoned:
The defense has presented "some evidence" of a "potential conflict" but there has
been no showing that the prosecutor's past book agreement has affected his
prosecution of the case for the people of the State ofIndiana. For example, even
though the case has now been reversed twice and the prosecutor has chosen to
proceed to trial fDr a third time, that decision has not been shown to be against the
State's interests by "clear and convincing" evidence as even our own Supreme
Court held that there is sufficient evidence for a jury to find the defendant guilty
at trial
(App. 251). The court acknowledged that it heard evidence of how the book agreement "could"
impact Henderson's loyalties and decisions but heard "no actual evidence that it 'has' affected
those loyalties or decisions" (App. 251). Additional facts from the record will be incorporated as
necessary and cited accordingly.
SUMMARY OF THE ARGUMENT
Defendant failed to present clear and convincing evidence of an actual conflict
necessitating removal of the prosecutor. First, Defendant cannot use the Rules of Professional
Conduct as a procedural weapon to remove the prosecutor from the instant case. The Rules do
not give Defendant standing or create a private right of action to remove an attorney from
8

litigation. Defendant attempts to bootstrap multiple claims of unethical conduct to require
Henderson to be removed as prosecutor, which in any event is an extreme remedy, reserved only
for cases involving an actual conflict which necessitates removal, shown by clear and convincing
evidence. Defendant has failed to carry his heavy burden.
At most, the evidence shows that the prosecutor entered into a book deal just before our
Supreme Court reversed Defendant's three murder convictions for the second time. Just over a
month later, the parties terminated the book deal, as well as the literary agent's contract. There is
no current book deal and the prosecutor would have to start the process over to obtain such a
deal. The trial court concluded that there is no actual conflict. Defendant cannot demonstrate
any harm in the discretionary decisions of the prosecutor, including: The charging decision, the
plea bargaining process, or a sentencing recommendation.
Any remaining concerns of prosecutorial misconduct, such as those which might arise
during the normal course of a trial, exist regardless who prosecutes the case. Defendant's right
to a fair trial would adequately protect him against any actual misconduct during the course of a
trial.
Moreover, the prosecutor has nothing more than a mere hope of a book deal at some point
in the future, which would exist regardless who might prosecute the case.
Even if there was some evidence of a potential conflict, removal is unwarranted. The
trial court can simply utilize jury questionnaires and/or conduct a sequestered voir dire to
determine whether any prospective jurors are aware of a book deal.
9

ARGUMENT
THE COURT PROPERLY DENIED DEFENDANT'S PETITION FOR SPECIAL PROSECUTOR BECAUSE
HE FAILED TO PROVE AN ACTUAL CONFLICT BY CLEAR AND CONVINCING EVIDENCE.
Standard of Review
This Court will review a trial court's denial of a motion for special prosecutor for an
abuse of discretion. State ex Rei. Steers v. Holovachka, 236 Ind. 565, 142 N.E.2d 593, 597
(1957). The trial court has discretion whether to grant or deny the motion. Kubsch v. State, 866
N.E.2d 726, 734 (Ind. 1996) (stating the trial court "rightly denied" motion for special
prosecutor); Garran v. State, 470 N.E.2d 719, 723 (Ind. 1984) (finding no error in the trial
court's ruling granting the special prosecutor motion as to the habitual offender allegation, but
denying the motion as to the State's case-in-chief); Sears v. State, 457 N.E.2d 192, 195 (Ind.
1983) (stating the trial court acted properly in appointing a special prosecutor). An abuse of
discretion will be found when it is clearly against the logic of the court, or the reasonable
inferences drawn therefrom. Holovachka, 142 N.E.2d at 597; see also McFarlan v. Fowler Bank
City Trust Co., 214 Ind. 10, 12 N.E.2d 752,754 (1938).
A. This Court must decline Defendant's invitation to address attorney disciplinary
matters outside the Cuurt's jurisdiction.
Throughout his brief, Defendant consistently charges Henderson with making allegedly
unethical statements to the press, defrauding the court by making allegedly untrue statements,
and entering into a book deal that incurably divided Henderson's loyalties between his own
allegedly selfish interests and his duty as a minister of justice. The trial court, however, properly
focused on the legal issue, i.e., whether Henderson had an actual conflict, instead of Defendant's
drumbeat allegations of alleged attorney misconduct. See Order (App. 251).
The Indiana Constitution grants exclusive jurisdiction over attorney disciplinary matters
to the Indiana Supreme Court. Ind. Const., Art. 7, Sec. 4; see also Indiana Appellate Rule
10

4(B)(1)(b); Cunningham v. State, 835 N.E.1075, 1079 n.6 (Ind. Ct. App. 2005). Imposing
attorney discipline and protecting a defendant's constitutional rights are separate matters. Little
v. State, 819 N.E.2d 496, 503 n.3 (Ind. Ct. App. 2004). This Court has repeatedly declined to
step outside its jurisdiction and act as a disciplinary body to determine whether an attorney's
actions are unethical. Bennett v. NSR, Inc., 553 N.E.2d 881,884 (Ind. Ct. App. 1990) (refusing
to address whether an attorney's conduct was unethical); cf Carter v. Knox County Office of
Family and Children, 761 N.E.2d 431, 434-35 (Ind. Ct. App. 2001) (concluding that a trial
judge's violation of the Code of Judicial Conduct was not a proper consideration for the court).
It is important to note that in Camm ll, our Supreme Court never stated that Henderson or the
State committed any prosecutorial misconduct. 5 Simply repeating ad hominem that Henderson
acted unethically and committed misconduct is insufficient to make it so.
Moreover, Indiana's Rules of Professional Conduct do not create standing or a private
right of action permitting Defendant to obtain any relief for alleged ethical misconduct. The
Rules "have limited application outside of the attorney disciplinary process." Liggett v. Young,
877 N.E.2d 178, 182 (Ind. 2007); Fitzpatrick v. Kenneth J Allen and Associates, p.e, 913
N.E.2d 255, 267 (Ind. Ct. App. 2009). The preamble to the Rules provides in relevant part:
Violation of a Rule should not itself give rise to a cause of action against a
lawyer, nor should it create any presumption in such a case that a legal duty has
been breached. In addition, violation of a Rule does not necessarily warrant any
other nondisciplinary remedy, such as disqualification of a lawyer in pending
litigation .. The Rules are designed to provide guidance to lawyers and to provide
a structure for regulating conduct through disciplinary agencies. They are not
designed to be a basis for civil liability, but the Rules may be used as nonconclusive
evidence that a lawyer has breached a duty owed to a client.
Furthermore, the purpose of the Rules can be subverted when they are invoked by
opposing parties as procedural weapons. The fact that a rule is a just basis for a
lawyer's self-assessment, or for sanctioning a lawyer under the administration of a
disciplinary authority, does not imply that an antagonist in a collateral proceeding
5 Henderson did not prosecute Camm 1.
11

or transaction has standing to seek enforcement of the Rule. Nevertheless, since
the Rules do establish standards of conduct by lawyers, a lawyer's violation of a
Rule may be evidence of breach of the applicable standard of conduct.
Ind. Professional Conduct Preamble ~ 20 (emphasis supplied). Defendant's blatant attempt to
bootstrap Henderson's alleged ethical misconduct as a procedural weapon to remove Henderson
from the case is not pennitted under the Rules. Moreover, Henderson's client is the State of
Indiana, not Defendant. Defendant cannot raise a claim on behalf of the citizens of the State of
Indiana. Instead, Defendant can only claim, and must prove by clear and convincing evidence,
that Henderson has a conflict of interest necessitating removal. Accordingly, this Court must
reject Defendant's invitation to condemn Henderson for alleged misconduct and instead, address
only whether trial the court acted within its discretion to deny Defendant's petition for special
prosecutor.
B. Defendant failed to prove an actual conflict by clear and convincing evidence.
Defendant's proof that Henderson had a conflict of interest fell well short of his
evidentiary burden. When a defendant requests a special prosecutor, the Legislature has
established that the trial court:
may appoint a special prosecutor if:
(A)
(B)
a person files a verified petition requesting the appointment of a special
prosecutor; and
the court, after:
(i)
(ii)
notice is given to the prosecuting attorney; and
An evidentiary hearing is conducted at which the prosecuting
attorney is given an opportunity to be heard;
finds by clear and convincing evidence that the appointment is necessary to avoid
an actual conflict of interest or there is probable cause to believe that the
prosecutor has committed a crime[.]
12

Ind. Code § 33-39-1-6(b)(2) (emphasis supplied). The import of the special prosecutor statute as
a whole is significant and "incorporates a recognition of the grave nature of disqualification and
the goal of comprehensively restraining disqualifications to situations of real need." State ex reI.
Long v. Warrick Circuit Court, 591 N.E.2d 559,560 (Ind. 1992) (discussing prior version of the
statute). "Ultimately, it is the defendant's burden to produce evidence of an actual conflict[.J"
Kubsch, 866 N.E.2d at 734. A prosecutor's apparent prejudice against defendant does not satisfy
the requirements for appointment of a special prosecutor. Kindred v. State, 521 N .E.2d 320, 327
(Ind. 1988). A trial court is not bound to accept a defendant's self-serving contention that a
special prosecutor is necessary. Jorgensen v. State, 567 N.E.2d 113,123 (Ind. Ct. App. 1991).
The court properly denied Defendant's petition due to Defendant's failure to prove an actual
conflict, let alone by clear and convincing evidence.
1. The trial court reached the right result, even if for the wrong reason.
The State agrees that the trial com1 seemingly applied an unpersuasive body of law to the
facts in this case to assess whether there was an actual conflict. The court's reasoning was an
exampl e of what logicians would call "weak induction." By its nature, any kind of induction,
weak or strong, allows for the possibility that the conclusions are false, as opposed to deductive
reasoning, wherein true premises necessitate true conclusions in any valid argument. The logic
of the court's reasoning is as follows:
Some defense attorneys who write books about cases do not have a conflict of
interest;
The prosecutor may have had an interest in writing a book about this case;
Therefore, the prosecutor does not have a conflict of interest.
See Order CAppo 250-51). This flawed logical reasoning can be characterized as either: (l)
universalizing from a particular; (2) drawing a false analogy; or (3) arriving at a hasty
13

generalization. The court assumes that the prosecutor in this case fits into the class of those
defense attorneys who have written about cases without creating a conflict, and applies that
assumption to all lawyers. The analogy between the two classes of attorneys, prosecutors and
defense attorneys, is unpersuasive, essentially comparing apples to oranges. The flaw in the
court's approach reaches a broad conclusion without a more detailed examination ofthe class of
attorneys for whom no conflict exists. Thus, in anyone of three different ways, the court's
reasoning assumes the form of a weak induction.
The court's reasoning is based upon ineffective assistance of counsel claims. The trial
court discussed the concept of "actual conflict" as used by the Supreme Court in Cuyler v.
Sullivan, 446 U.S. 335 (1980) (App. 250). Cuyler was a multiple representation case where
defense counsel represented TP-ultiple defendants. !d. at 337-38. The Cuyler majority concluded
that the possibility of a conflict was insufficient to find ineffective assistance. Id. The trial court
also examined Beets v. Collins, 65 F.3d 1258 (5th Cir. 1995) (applying Cuyler) (App. 250-51).
The defendant in Beets transferred her media rights in the case to her defense attorney just after
her trial commenced. Id. at 1261-62. The trial court became aware of the contract at the time of
the appeal. Id. at 1262. The Fifth Circuit in Beets, however, declined to apply Cuyler outside of
the multiple representation fact pattern, opting instead to apply Strickland v. Washington, 466
U.S. 668 (1984). Beets, 65 F.3d at 1266, 1271-72. While Cuyler, Strickland, a~d Beets are
instructive regarding a defense attorney's conduct, the cases do not address whether a prosecutor
has an actual conflict necessitating removal. Though the court's conclusion in this case, i.e., that
Henderson has no conflict, is true, the conclusion cannot be established by the court's premises.
Instead of using ineffective assistance caselaw, the court should have focused on whether
there was an actual conflict between Henderson and Defendant necessitating removal. The trial
14

court cited Pelley v. State, 901 N.E.2d 494 (Ind. 2009), where our Supreme Court recently
rejected a similarly vague claim as Defendant raises here that the appearance of impropriety was
sufficient to necessitate rernev:!l of a prosecutor, without any showing as to the nature or
substance of allegedly confidential communication between prosecutor and a defendant he
formerly interviewed as a witness when the prosecutor was a defense attorney. Jd.506-07. Our
Supreme Court adopted a conservative approach to address the special prosecutor statute, and
reasoned that "avoiding conflicts of interest can impose significant costs on lawyers and clients.
Prohibition of conflicts of interest should therefore be no broader than necessary." Jd. at 507
(quoting Restatement (Third) of the Law Governing Lawyers § 121 cmt. B) (internal quotations
omitted). The Pelley court applied the law to the facts and succinctly concluded there was no
conflict. Pelley, 901 N.E.2d at 507. While the trial court here reached the right result, a
straightforward application of Pelley would have achieved the same result without drawing a
false analogy between claims of ineffective assistance and petitions for special prosecutors.
Defendant's claims here demonstrate no actual conflict which places his constitutional right to a
fair trial in jeopardy. Accordingly, the trial court reached the right result, if for the wrong
reason.
2. There is no actual conflict.
Defendant's claim of an actual conflict is vague and without merit. At the outset, it is
important to understand the range of misconduct or unethical behavior by prosecutors. The
Northern California Innocence Project recently issued a report which provides a useful
taxonomy. See Kathleen M. Ridolfi and Maurice Possley, Preventable Error: A Report on
Prosecutorial Misconduct in California 1997-2009 (Veritas Initiative) (Oct. 2010). Based on an
extensive review of cases, the authors categorize and classify several types of misconduct,
15

including: intimidating witnesses; presenting false evidence; discriminatory jury selection;
violating the Fifth Amendment right to silence; failing to disclose exculpatory evidence;
improper examination; and, improper argument. ld. at 25. This taxonomy helps put
Henderson's alleged misconduct and unethical acts in the proper context, which is to assess
,-.
whether Defendant will receive a fair trial.
Defendant makes a general ambiguous claim about the "countless decisions" Henderson
will make as the prosecutor on the case. See Br. of Appellant 22. There are three discretionary
decisions of any import, easily answered, that Henderson must make regarding the instant case:
(1) whether to the charge Defendant at all; (2) whether to offer Defendant a plea bargain; and (3)
what sentence to recommend to the court, if Defendant is convicted for the third time of
murdering his wife and children. People v. Eubanks, 927 P.2d 310 (Cal. 2008), a California
Supreme Court case, provides some guidance. The Eubanks court focused on the prosecutor's
discretionary powers, reasoning that prejudice is most likely to arise during the charging, plea
bargaining, and the sentencing phases of a criminal case. ld. at 318; While our Supreme Court
has not fully explored the issue, the Court has considered the impact of conflicts on the
discretionary functions ofthe prosecutor. See, e.g., Kubsch, 866 N.E.2d at 733-34 (discussing
the plea bargaining phase). None of those considerations here, however, has any merit.
Charges against Defendant were inevitable, regardless who prosecuted the case. The
determination of whom to prosecute lies within the sole discretion of the prosecutor and the
reviewing court "may not substitute its discretion for that of the prosecuting attorney." Johnson
v. State, 675 N.E.2d 678,683 (Ind. 1996) (citing Lamotte v. State, 495 N.E.2d 729, 733 (Ind.
1986)). Two independently elected prosecutors - both of whom represented the will of the
people of Floyd County - chose to file charges against Defendant. Stan Faith, Henderson's
16

predecessor in office, charged and prosecuted Defendant in Camm 1. Henderson charged and
prosecuted Defendant in Camm II. Two juries - twenty-four people in all- impaneled from two
different counties found Defendant guilty of murdering Kim, Brad, and Jill. See Camm 1,812
N.E.2d at 1130; Camm 11,908 N.E.2d at 238. Both this Court and our Supreme Court held that
there was sufficient evidence to re-try Defendant in each of the respective appeals. Camm 1,812
N.E.2d at 1138-39; Camm 11,908 N.E.2d at 220-21. Defendant is not entitled to choose his own
prosecutor as that right belongs to the voters of Floyd County.
Any prosecutor would have charged Defendant after Camm II. Henderson served the
public's interest when he made the inevitable conclusion to charge Defendant for the third time,
based on the evidence which our Supreme Court found sufficient to support a retrial, and nearly
affirmed in a split decision on rehearing. Though it may have been Henderson's decision
whether to charge Defendant, it is the court's decision whether to find probable cause supporting
the charging decision. Not even Defendant's uncle was surprised when Henderson announced
that Defendant would be tried for the third time. See WLKY News, Camm To Be Tried Third
Time In Family's Slaying (available at http://www.wlky.com/news/21797043/detail.html) (last
visited on July 21, 2011). Defendant has suffered no harm because any prosecutor in the State of
Indiana would have charged him with murder, and there is probable cause to support those
charges and sufficient evidence to sustain convictions if obtained.
Defendant's reliance on Shaw v. Garrison, 467 F.2d 113 (5th Cir. 1972), asserting that
Henderson improperly charged Defendant, is sorely misplaced. See Br. of Appellant 22-23.
Garrison, a prosecutor in New Orleans, prosecuted Shaw for allegedly plotting to assassinate
President John F. Kennedy. Id. at 118-19. Garrison's case against Shaw was later popularized
17

in Director Oliver Stone's conspiracy theory movie, JFK. 6 Shaw was acquitt~d of conspiring to
assassinate President Kennedy. Shaw, 467 F.2d at 118. Even so, Garrison continued his pattern
of "relentless harassment" of Shaw and attempted to prosecute him for perjury. Id. at 114.
Garrison had written one book about his prosecution of Shaw and was under contract to write
three additional books at the time of the perjury prosecution. Id. The Fifth Circuit affirmed the
District Court's findings that Garrison brought the perjury prosecution in bad faith and for the
purpose of harassing Shaw. !ei. at 122. Unlike Shaw, who was acquitted of conspiring to kill
John F. Kennedy, Defendant has twice been convicted of murdering Kim, Brad, and Jill.
Whereas Shaw involved a vindictive prosecution, the instant case does not. Moreover, unlike
Garrison who had already written a book about the case and was under contract to write
additional books, Henderson has no cook contract. Conspiracy theories are best left where they
belong, Hollywood and the internet, not before this Court on appeal.
Defendant can perhaps claim that Henderson's decision not to offer a plea bargain
prejUdices him in some way. Defendant has maintained his innocence throughout this case. It is
unlikely that Defendant is willing to accept responsibility for killing Kim, Brad, and Jill.
Moreover, because a defendant has no constitutional right to engage in plea bargaining, the
prosecutor has no duty to plea bargain. Roeder v. State, 696 N.E.2d 62, 64 (Ind. Ct. App. 1998).
Accordingly, Henderson's discretionary decision whether to offer a plea presents no actual
conflict of interest because Defendant has no constitutional right to engage in plea bargaining
and is of no consequence in light of Defendant's claims of innocence. Cf Kubsch, 866 N.E.2d at
733-34 (reasoning that a prosecutor's prior representation of a witness did not impair
6 See Internet Movie Database, JFK (available at http://www.imdb.com/title/tt0102138/) (last
visited August 10,2011).
18

prosecutor's duty of impartiality to the accused during the plea bargaining process where the
accused was unwilling to participate ~n the plea bargaining process).
Henderson's possible recommendation at sentencing is also not at issue. In Camm I,
Judge Striegel sentenced Defendant to 195 years. Camm I, 812 N.E.2d at 1130. In Camm 11,
Judge Aylsworth sentenced Defendant to life without parole. Camm 11, 908 N.E.2d at 219.
Defendant is in no worse a position as in the sentencing phase of Camm 11 where he received life
without parole. Defendant's claim of a vindictive prosecution or that Henderson will make
countless decisions falls flat when examining the mechanics of the three essential discretionary
prosecutorial decisions, charging, plea bargaining, and sentencing.
Defendant's constitutional rights are protected by the State and federal constitutions for
any other claims of unethical conduct committed by any of the prosecutors during Defendant's
third trial, including the types of misconduct categorized in the Veritas Initiative report. This
Court will not remove Henderson, or any other prosecutor for that matter, upon the mere
speculation that he or she might do something unethical during a future trial or upon the mere
appearance of impropriety. Instead, the trial court may only remove a prosecutor upon a
showing of an actual conflict by clear and convincing evidence. Kubsch, 866 N.E.2d at 731.
Furthermore, no court has ever said that Henderson or any other prosecutor in this case has
committed prosecutorial misconduct. The learned professor even conceded that not all
prosecutorial misconduct warrants removal (Tr. 109). The only remaining colorable argument
supporting Defendant's petition for a special prosecutor concerns Henderson's rescinded book
deal with Penguin.
Henderson has no book deal, and, therefore, no current conflict of interest. As a general
rule, "[p]rior to the conclusion of representation of a client, a lawyer shall not make or negotiate
19

an agreement giving the lawyer literary or media rights to a portrayal or account based in
substantial part on information relating to the representation." Prof. Condo Rule 1.8( d). The
American Bar Association ("ABA") has published a treatise regarding prosecutorial standards
which addresses literary or media agteements. See ABA Standards for Criminal Justice:
Prosecution Function and Defense Function (3rd Ed. 1993). Standard 3-2.11 states:
A prosecutor, prior to conclusion of all aspects of a matter, should not enter into
any agreement or understanding by which the prosecutor acquires an interest in
literary or media rights to a portrayal or account in substantial part on information
relating to that matter.
Id. at 45. The commentary to Standard 3-2.11 suggests the following:
An agreement by which a prosecutor acquires literary or media rights concerning
a pending criminal matter can create a conflict between the interests of the
government in obtaining a just and fair outcome and the personal interests of the
prosecutor in having a good (or outrageous) story to tell. Measures that should be
taken in the interests of effective prosecution may detract from the publication
value of a subsequent account of the prosecution. Hence, entering into such
literary or media agreements prior to the conclusion of all aspects of a criminal
matter should be scrupulously avoided.
Id. at 45--46. Contrary to Professor Lefstein's paid testimony, Rule 1.8( d) differs from the ABA
standard and does not create an absolute prohibition balU1ing prosecutor literary agreements,
especially when read with Standard 3-2.11 and its accompanying commentary (Tr. 26).
Lawyers' media rights have also received substantial attention in legal periodicals. See,
e.g., Ria A. Tabacco, Defensible Ethics: A Proposal to Revise the ABA Model Rules for
Criminal Defense Lawyer-Authors, 83 N.Y.U. L. Rev. 568 (2008); Rachel Luna, The Ethics of
Kiss-and-Tell Prosecution: Prosecutors and Post-Trial Publications, 26 Am. J. Crim. L. 165
(1998); Marjorie P. Slaughter, Lawyers and the Media: The Right to Speak Versus the Duty to
Remain Silent, 11 Geo. J. Legal Ethics 89 (1997); John Gibeaut, Defend and Tell: Lawyers who
Cash in on Medial Deals for Their Cleints' Stories may Wish They'd Kept their Mouths Shut, 82-
20

DEC AB.A J. 64 (1996); Rita M. Glavin, Prosecutors who Disclose Proescutorial Information
for Literary or Media Purposes: What About the Duty of Confidentiality?, 63 Fordham L. Rev.
1809 (1995); Mark McDonald, Literary-Rights Fee Agreements in California: Letting the Rabbit
Guard the Carrot Patch of Sixth Amendment Protection and Attorney Ethics?, 24 Loy. L.A L.
Rev. 365 (1991); New York State Bar Association Ethics Op. 606 (1990). While these opinions
may provide some guidance, the trial court must look at the facts of each case to make a
determination whether there is an actual conflict, which is the approach our Supreme Court
employed in Pelley. See Pelley, 901 N.E.2d at 507 (rejecting counsel's argument that an
appearance of impropriety was sufficient to remove a prosecutor).
The facts in the instant case simply do not establish an actual conflict by clear and
convincing evidence. Although Henderson had signed a contract with a literary agent between
the guilty verdict and sentencing, this type of an agreement is not prohibited by Rule 1.8( d).
After the Defendant had been sentenced, Henderson had no further discretionary responsibilities,
but rather the Attorney General represented the State during the appeal. The project was nothing
more than a proposal until June 3, 2009, when Weimann negotiated a publishing agreement
between Henderson and Penguin (Exh. GIS; Exh. H.B). Our Supreme Court reversed Camm II
on June 26, 2009. Camm 11,908 N.E.2d at 215. Within a month, while the State's rehearing
petition was pending, Penguin agreed with Henderson's suggestion that the best solution was to
void the contract and for Henderson to repay the advance (Exh. F.I). It took a few weeks to
prepare the termination paperwork, which was completed by September 2009 (Exh. E 51).
Henderson and DiMarco returned the advance by the first week in October (Exh. G 50). Thus,
the evidence supports the trial court's conclusion that there is no current book deal and,
accordingly, no actual conflict of interest CAppo 251).
21

Few cases have addressed whether a prosecutor's book deal creates a conflict of interest
at all, let alone a book deal that was terminated before it ever really began. The true crime genre
first appeared in 1965 in Truman Capote's book In Cold Blood (Signet 1965).7 Prosecutors
began writing true crime books from the prosecutor's perspective in approximately 1975 when
Vincent Bugliosi wrote about the Tate-LaBianca murders in Helter Skelter: The True Story of the
Manson Murders (Bantam 1975). Bugliosi also wrote about a murder on the Palmyra atoll in a
book entitled And the Sea Will Tell: Murder on a Desert Island and Justice (Norton 1991).
Noted legal commentator Jeffrey Toobin penned Opening Arguments: A Young Lawyer's First
Case (Viking 1991) arising from his work as a young prosecutor during the Iran-Contra affair.
Though the New York Times criticized Toobin for writing the book, 8 no disciplinary action ever
resulted from the book and attempts by the special prosecutor to prevent publication wholly
failed. See generally Pengui,l Books USA, Inc. v. Walsh, 756 F. Supp. 770 (S.D.N.Y. 1991),
vacated as moot, 929 F.2d 69 (2nd Cir. 1991). Using Mark Twain's humorist approach, noted
Missouri prosecutor Morley Swingle has written about numerous cases he prosecuted. See
Scoundrels to the Hoosegow: Perry Mason Moments and Entertaining Cases from the Files of a
Prosecuting Attorney (University of Missouri Press 2007). Books by prosecutors are, therefore,
not as rare as Defendant claims.
7 Writer Tom Wolfe has written an excellent essay criticizing Capote's approach. See
Pornoviolence in Mauve Gloves & Madmen, Clutter & Vine and other stories, sketches and
essays 178-87 (Farrar 1976). Of Wolfe's categories - the "who done it," the "never been
caught," and Capote's new "gory details" - the latter bases its suspense upon promising the
details of cases and waiting to tell them until the very end of the book. Id. at 185. Wolfe also
criticized the genre for rarely telling a story from the victim's point of view. Id. at 183.
8 See John P. MacKenzie, "Peddling Iran-Contra Secrets," New York Times Editorial (February
8, 1991) available at: http://www.nytimes.coml1991/02/08/opinionleditorial-notebook-peddlingiran-contra-secrets.html
(last visited August 8, 2011).
22

Moreover, cases addressing literary rights in other jurisdictions offer some guidance to
answer the question presented in this interlocutory appeal. In Haraguchi v. Superior Court, 182
P.3d 579, 589 (Cal. 2008) (not discussed in Preventable Error, supra), a prosecutor moonlighted
as a fictional novelist and published and promoted a book entitled Intoxicating Agent, which
resembled Haraguchi's case. Id. at 582-83. The California court applied a two-part test
determining first, whether there was a conflict of interest and, second, whether the conflict was
so severe as to disqualify the prosecutor from acting. Id. at 584. To address the first part of the
test, the court must answer whether the circumstances of a case established a reasonable
probability that the prosecutor could not exercise its discretionary function in an evenhanded
manner. Id. at 585. If a conflict exists, the court must then assess whether that conflict is so
grave as to render it unlikely that defendant will receive fair treatment during all portions of the
criminal proceeding. !d. The Haraguchi court reasoned that, while the prosecutor's career as a
novelist might benefit from successful prosecutions, the second income stream would have no
ill-effects on incentives to try, settle, or dismiss the case against Haraguchi. Haraguchi, 182
P.3d at 586-88. Even if a reasonable conflict of interest existed, the Haraguchi court noted that
the minimal publicity and sales did not estabHsh the likelihood of unfair treatment. Id. at 589.
Only an actual likelihood of unfair treatment, not a subjective perception of impropriety, can
warrant a court's taking the significant step of removing a prosecutor. Id. at 589. Similarly to
Haraguchi, Henderson's rescinded book deal has had no effect on Henderson's incentive to try,
settle, or dismiss the case against Defendant.
In People v. Sims, 612 N.E.2d 1011 (Ill. Ct. App. 1993), Sims appealed her murder
conviction in a "highly publicized case." Id. at 1018. In Sims, the prosecutor entered into an
agreement with a co-author one week after the trial concluded, and signed a contract with a
23

publisher one week before the final sentencing hearing. Id. The defendant wanted a book,
which was written by the prosecutor and published, to be added to the record because it would
show a conflict of interest, prosecutorial misconduct, undisclosed discovery violations, and
possible perjury by police witnesses. Id. The Illinois Court of Appeals agreed with Sims that the
request and situation was "entirely unique and no case law or other precedent in point is known
to exist." Id at 1019. The court addressed whether the prosecutor's thoughts regarding future
financial gain during the trial and any discussion he had regarding those thoughts were a
violation of the defendant's right to a fair trial. Id. The Sims court held that those thoughts,
without showing that the defendant had suffered any actual harm, were insufficient to grant a
new trial. Id. Specifically, the court stated:
Simply because a prosecutor, judge, or defense attorney may consider profiting
from their involvement in a highly publicized trial does not necessarily mean that
the prosecutor, judge, or defense attorney has engaged in conduct that violates the
Code of Professional Responsibility. [ ... ] We could not find anything in the
record to indicate that the trial prosecutor or the State's Attorney conducted
themselves during the trial in a manner calculated to prejudice the defendant's
right to a fair and impartial trial deriving from the prosecutor's contemplation of
writing a book.
!d. Henderson's proposed book, now rescinded, is even less problematic than Sims where the
prosecutor had a signed contract to publish before the final sentencing hearing.
Similarly to Sims, Defendant fails to articulate with any specificity any concrete harm
which might impair his right to a fair trial. Henderson has no present contract to write a book
regarding the Camm murders (Exhs. E 40,51, G 96-97). Nor is there a "wink-and-a-nod"
agreement between Henderson and the publisher after the third trial (Exh. E 52,54). Even
Professor Lefstein admitted that the book deal had been terminated by August of2009, and that
Henderson had no contract at that time (Tr. 78, 86). Although he opined that Henderson's
previous book deal continued to divide his loyalties, Lefstein conceded that Henderson was not
24

violating Rule 1.8(d) at the time of the hearing (Tr. 86, 112-13). As the literary agent,
Weimann, noted, an acquittal would be just as sensational as a third conviction (Exh. G 98-99).
It is clear from Henderson's suggested alternate titles - "Murder in the Midwest: The Second
and Final Trial of David Camm" and "Murder in the Midwest: The Final Trial of David Camm"
- that he did not expect he would have to try Defendant for the third time (Exh. F.C). Moreover,
Henderson never provided a m:muscript or shared any information or evidence about the case
that was not already part of the public record (Exh. G 76, 84).
Furthermore, it is unlikely the instant case will become more sensational than it already
IS. The instant case has been on 48 Hours twice. 9 In fact, there has already been one book about
the murder of Kim, Brad, and Jill.1D There have been countless news stories about the case.
Henderson's proposed book would have simply told the story of a trial from the point of view of
the prosecution and the victims (Exh. F.A). Indiana criminal law has certainly had no shortage
of true crime books in high profile cases and this case is no different, even if from Henderson's
point of view. 11 Any special prosecutor who is appointed to the case will have the same
speculative, illusory "conflict" because of the high profile nature as discussed by the Sims court.
9 See 48 Hours, Murder on Lockhart Road, original air date December 9, 2006; updated July 10,
2008 available at: http://www.cbsnews.com/stories/2006112/07/48hours/main223 8837 .shtml
(last visited August 8, 2011).
10 See John Glatt, One Deadly Night (St. Martin's Press 2005).
II See, e.g., Steve Miller, Girl Wanted: The Chase for Sarah Pender (Berkley 2011) (depicting
an escape from Indiana Department of Correction); Thomas Henry Jones, Fear no Evil (St.
Martin's Press 2002) (portraying the murder of Eldon Anson in Huntington, Indiana); Mike
McCarty, Choking in Fear (Arner Book Pub 2004) (detailing murders in Waveland, Indiana
through the eyes of a police officer); John Dean, The Indiana Torture Slaying: Sylvia Likens'
Ordeal & Death (BorfBooks 1999); Wensley Clark, Deadly Seduction (St. Martin's Press 1996)
(revisiting the Jimmy Grund murder in Peru, Indiana).
25

The California Supreme Court also reached a conclusion similar to Sims in Hollywood v.
Superior Court, 182 P .3d 590 (Cal. 2008). In Hollywood, a prosecutor had turned over materials
to a film director and screenwriter and become a consultant to a film entitled Alpha Dog. Id. at
594. The defendant argued that by cooperating in the making of a movie, the prosecutor sought
to "burnish his own legacy" and put himself in a position to "[expand] the market for a book of
his own based on [the] case." Id. at 594,599. The court noted that, among other things, the
prosecutor had decided to shelve any plans for a book as it might pose a conflict of interest. Id.
at 599. The court found that the prosecutor, because of this decision, had the same interest that
every attorney - both defense and prosecution - has in a high profile case. Id. The Court stated:
"if the high-profile nature of a case presents incentives to handle the matter in any way contrary
to the evenhanded dispensation of justice, the problem is not one that removal can solve, as the
same issue would arise equally for any theoretical prosecutor." Id. While the prosecutor's
decision to hand over case files was found to be sanctionable, the court held that the financial
incentive presented to the prosecutor did not impair Hollywood's chance to receive a fair trial.
Id. at 600. Similarly to Hollywood, even though Henderson had a previous deal for his book,
also known as "Murder in the Midwest: The Second and Final Trial of David Camm," there is
no longer any agreement and (IllY financial incentive is wholly speculative. Defendant's "form
over substance" argument that Henderson has a contract is in direct conflict with the record as
there is no book deal (Exhs. E 40,51-52, 54,G 96-97).
The trial court here properly concluded that a new prosecutor was unnecessary because
no conflict of interest exists which endangers a fair trial. Henderson had an agreement with a
literary agent just after the trial, but no publishing contract until long after Defendant was
sentenced. Henderson's literary agent contract had no effect on any decisions Henderson made
26

during the second trial, just as in Sims. Even if the book deal and literary agent agreement had
created a conflict of interest, as noted by the court in Haraguchi and Hollywood, the small
amount of financial gain Henderson ~tood to earn could not establish the likelihood of unfair
treatment at a third trial. The parties terminated the contract and the co-authors returned the
$4,000 advance before our Supreme Court denied the Attorney General's petition for rehearing
on November 30, 2009. 12 These curative actions occurred nearly two full months before
Henderson decided to try Defendant for a third time.
A third trial would have been a foregone conclusion for any prosecutor after the split
decision on rehearing where even the majority concluded there was sufficient evidence to retry
Defendant. Moreover, any potential financial gain Henderson would gamer from retrying the
case is speculative at best because there is no guarantee, not even a "wink-and-a-nod" agreement,
that Penguin or any other publisher will publish the book Henderson originally proposed. In this
case, Defendant concedes has cost the State substantial financial resources, indeed millions of
dollars. If the Court concludes that Henderson should be removed, the cost to try Defendant will
increase even more because Henderson's entire staffwill be excluded, which means that
Defendant will have a third trial, in a third county, with a third judge, and a third prosecutor - an
expensive prospect indeed. Henderson has no incentive to abandon his role as a minister of
justice for the paltry sum of $1 ,700.00, which has already been returned. 13
12 As a matter of professional courtesy, the Attorney General routinely invites prosecutors,
deputy prosecutors, and trial counsel who represented the State's interests below the honor of
sitting at counsel table during oral arguments. Occasionally, trial counsel may offer some
assistance clarifying the record of proceedings. However, such limited participation has no
effect on the trial record, or on retrial. Defendant is tilting at windmills when he notes that
Henderson sat with the State at counsel table during the oral argument in Camm 11. See Br. of
Appellant 3; Exhs. C, D.
13 Defendant also takes issue with Henderson's statement that he "immediately" terminated the
publishing contract, claiming Henderson defrauded the court. See Br. of Appellant 28. Whether
27

Defendant's reliance on Tippecanoe County Court, 432 N.E.2d 1377 (Ind. 1982) is
misplaced. The prosecutor in Tippecanoe County Court previously represented a thief before
becoming the elected prosecutor. Id. at 13 78. After assuming his duties as prosecutor, the
previous convictions formed the basi;; for an habitual offender allegation. ld. Our Supreme
Court concluded that the trial court properly appointed a special prosecutor, reasoning in part:
Although it is true, that the fact of the defendant's prior convictions are a matter
of public record, we cannot say without speculation that the prosecutor's
knowledge of those prior cases will not actually result in prejudice to defendant.
The public trust in the integrity ofthe judicial process requires us to resolve any
serious doubt in favor of disqualification.
Id. at 1379. The integrity of the process in Tippecanoe County Court was in jeopardy because
the prosecutor previously represented the defendant, which created the appearance that the
prosecutor's knowledge of the prior case placed the State at an advantage over the defendant.
Here, Henderson did not previously represent Defendant, nor does the now-rescinded book deal
compete with Henderson's duty as a minister of justice. Tippecanoe County Court does not
relieve Defendant of his statutory burden of proving an actual conflict by clear and convincing
evidence, which he has wholly failed to do.
In re McKinney, 948 N.E.2d 1154 (Ind. 2011) is also inapposite to the instant case. In
McKinney, a disciplinary action, our Supreme Court considered whether a prosecutor violated
the ethical rules by prosecuting criminal defendants while pursuing civil forfeiture actions
against those same defendants as a private attorney. Id. at 1156--57. McKinney raises the specter
of "justice for sale" in concurrent representation cases. Id. at 1159-61 (citing Matter of Ryan,
824 N.E.2d 687,689 (Ind. 2005) and Matter o/Curtis, 656 N.E.2d 258,260 (Ind. 1995)). This is
terminating the contract just over a month after the reversal (only a few days after the State filed
its rehearing petition) was "immediate" is a matter of opinion, again, best left to the disciplinary
authority.
28

neither a concurrent representation nor a "justice for sale" case. Nor is there any conflict due to
prior representation. See, e.g., Kubsch, 866 N.E.2d at 731 (finding no conflict where prosecutor
previously represented a witness in murder case); Johnson, 675 N.E.2d at 681 (finding no
conflict where newly elected prosecutor previously represented initial suspect in murder);
Banton v. State, 475 N.E.2d 1160, 1162-63 (Ind. Ct. App. 1985) (finding conflict where newly
elected prosecutor previously represented a codefendant in same proceeding). If anything,
McKinney is helpful to the State's argument that there is no actual conflict because Henderson's
interests are even conceptually aligned with seeking justice on behalf Kim, Brad, and Jill.
3. Removal is not necessary to avoid an actual conflict when sequestered voir
dire and jury questionnaires will suffice.
Even if, as the trial court found, there is "some evidence" of a "potential conflict," the
extreme remedy of removing Henderson is unwarranted. The elected prosecutor is "the
embodiment of the community will to justly enforce the criminallaws[.]" State ex rel. Long, 591
N.E.2d at 560. The special prosecutor statute as a whole is significant and "incorporates a
recognition of the grave nature of disqualification and the goal of comprehensively restraining
disqualifications to situations of real need." Id. In the instant case, there is no real need here
requiring the extreme remedy of disqualifying the prosecutor. Instead, there is a solution easily
implemented by the trial court to address any residual appearance of impropriety or potential
conflict based on Defendant's unproven concerns and incessant allegations of misconduct.
Any awareness of the rescinded book deal, as well as awareness ofthe allegedly
unethical press releases and pleadings, can be addressed during voir dire as explained by the
California Supreme Court in Haraguchi. In Haraguchi, the court provided an alternative
solution to removal if a "trial court found any potential taint to the jury pool from the
promUlgation of the views in [the book]." Haraguchi, 182 P.3d at 589. The California Supreme
29

Court, acknowledging the trial court's suggestion, believed that any views of the published book
could be adequately addressed through a sequestered voir dire. 1d. Using this process, both
parties could inquire whethcl any of the prospective jurors were familiar with any media
accounts of the case and either the prosecutor or defense attorney. 1d. If any of the potential
jurors answered in the affirmative, further questioning could occur out of the presence of the rest
of the jury pool. 1d. The court acknowledged that an individualized sequestered voir dire is
"precisely the sort of discretionary trial-management decision we vest trial courts with, and the
trial court did not err in concluding this sort of potential prejudice could be dealt with in that
fashion." !d.
Our Supreme Court has endorsed using sequestered voir dire if there is evidence of
highly unusual or potentially damaging circumstances. See, e.g., Conner v. State, 580 N.E.2d
214, 217 (Ind. 1991). The trial court, Henderson, and Defendant can question the jurors
individually to determine what, if anything, they know about the parties involved, the rescinded
book deal, the pleadings, or the press releases, to determine whether it would affect their ability
to serve as an impartial juror. If any of the potential jurors indicated they knew anything about
the Defendant or the instant case, then the parties could question that juror further individually
and out of the presence of the rest of the jury pool. Haraguchi, 182 P.3d at 589. This sensible
procedural solution would safeguard Defendant's constitutional right to a fair trial. If the
prosecutor or his deputies make extravagant claims during the trial, it is at the risk of alienating a
jury which knows nothing about the parties or the instant case. Just as in Camm 1, this Court, if
it so chooses, may suggest additional ways to address the issue. Camm 1,812 N.E.2d at 1142
(addressing claims of prosecutorial misconduct and providing guidance for retrial).
30

California's approach in Haraguchi is also consistent with sequestered voir dire endorsed
by the ABA. See ABA Standards for Criminal Justice: Fair Trial and Free Press at 40 (3d Ed.
1992). The ABA treatise notes in its commentary that even U.S. Supreme Court Justice Felix
Frankfurter expressed frustration with media exploitation and the difficulty of determining the
impression made on the average juror. !d. at 41 (citing Stroble v. California, 343 u.s. 181, 201
(1952)). "The various judicial remedies," the ABA continues, "including judge's instructions,
admonitions, deliberations and even voir dire, appear to have little effect on such prejudices. But
juries nonetheless do exhibit a certair. ability to decide cases on the evidence and contrary to
their initial prejudice." Jd. at 43. One need look no further than the recent acquittal of Casey
Anthony to find the veracity of the ABA's statement. The ABA suggests the selection of a jury
where possible prejudice questions are raised in the following way:
If there is a substantial possibility that individual jurors will be ineligible to serve
because of exposure to potentially prejudicial material, the examination of each
juror with respect to exposure should take place outside the presence of other
chosen and prospective jurors. [ ... ] The questioning should be conducted for the
purpose of determining what the prospective juror has read and heard about the
case and how any exposure has affected that person's attitude toward the trial.
Jd.; ABA Standard for Criminal Justice, Standard 8-3.5. The purpose of this standard is to
identify the circumstances of the employment of a sequestered voir dire. Jd. at 44. The ABA,
unlike the California Supreme Court, suggests a segregated voir dire where jurors are examined
outside the presence of the others. !d. The ABA states, however, that although courts have been
reluctant to adopt this procedure, it has received wide acceptance. Jd. (citing Press Enterprise
Co. v. Superior Court (J), 464 U.S. 501, 511-12 (1984); United States v. Blanton, 719 F.2d 815,
822 (6th Cir. 1983); United States v. Booker, 641 F.2d 218 (5th Cir. 1981)).
The ABA suggests several other strategies to combat media exposure. Additionally, the
ABA recommends allowing buth parties additional challenges to the extent necessary for the
31

implementing of an impartial jury." ld. at 40. The purpose behind this concept, as explained, is
because it is always difficult for attorneys to prove good cause, especially when jurors might be
more than just reluctant to be completely honest. Id. at 45. The ABA recommends requiring the
court to take into account the objective facts ofthe nature and degree of exposure to the
prejudicial infonnation. ld. at 44. Finally, ifnone of these options are sufficient, the ABA
suggests transporting a jury from a jurisdiction that has not been exposed to any of the pretrial
publicity. Id. at 46.
At most, Defendant proved by clear and convincing evidence that this case is hotly
contested by the prosecution and the defense. Even assuming arguendo that Henderson has
some sort of "vendetta" against Defendant, it is irrelevant and does not establish a conflict
requiring removal. Johnson, 675 N.E.2d at 683. To have Henderson removed, an extreme
measure, Defendant must show it is necessary, which in this case, it is not. Sequestered voir
dire, if even necessary in the first place, can easily address Defendant's concern whether
prospective jurors are aware that Henderson had a book deal. Moreover, juror questionnaires are
inevitable in light of the history of this case. The court could simply add questions which would
trigger further inquiry about the rescinded book deal if necessary. Removal of the prosecutor,
who represents the will of the community, is an extreme measure, unwarranted, and unnecessary
in the instant case. Accordingly, the trial court acted well within its discretion to deny
Defendant's petition for special prosecutor and can address any residual concerns during voir
dire.
32

CONCLUSION
For all of the foregoing reasons, the State respectfull y requests this Court to affirm the
trial court's order denying Defendant' s petition for a special prosecutor and let the matter
proceed to Defendant 's third tri al for the murder of his wife and children.
Respectfully submitted,
GREGORY F. ZOELLER
ATTORNEY GENERALOF IND IANA
Atty. No. 1958-98
~ ===
Ally. No. 24248-53
Aft()1'I7eys/or Appellee
33

WORD COUNT CERTIFICATE
Pursuant to Indiana Appellate Rule 44, I verify that the Brief of Appellee contains no
more than 14,000 words.
CERTIFICATE OF SERVICE
I do solemnly affirm under the penalties for perjury that on August 17,2011, I served
upon the opposing counsel in the above-entitled cause two copies of the Brief of Appellee by
causing the same to be deposited in the United States mail first-class postage prepaid, addressed
as follows:
Stacy Uliana
A TTORNEY AT LA W
P.O. Box 744
Bargersville, IN 46106
Richard Kammen
GILROY KAMMEN HERTZEL & MOUDY
135 N. Pennsylvania St., Suite 1175
Indianapolis, IN 46204
Office of Attorney General
Indiana Government Center Suuth, Fifth Floor
302 West Washington Street
Indianapolis, Indiana 46204-2770
Telephone (317) 232-6232
joby. jerrells@atg.in.gov
eneraJ
34