ORDER FILED. JfUL 32m ANDREW ROVER COUNTY OF ELKHART CAUSE NO. 20D MR 0155

Transcription

1 . hearng v V STATE OF NDANA ) N THE ELKHART SUPEROR COURT NO.;3 COUNTY OF ELKHART ) CAUSE NO. 20D MR 0155 STATE 0F NDANA VS. v ORDER FLED JfUL 32m ANDREW ROVER ELKHART: SUPER OB 3911mm Ths cause came on for hearng on Juy 2, 2018, on the State s Moton for Emergency? Hearng and Request for njuncton. The State of ndana appeared by Vck E. Becker, Ekhaf County Prosecutng Attorney, and Laura Brd, Deputy Prosecutng Attorney. Defendant appeared by counse," Eot Sosar, pro hac vce, whose Verfed Pettoh for Temporary Admsson was granted pre hearng, aong wth co-counse Mark A. Bates, a cuy censed ndana attorney. Arguments of counse were heard. The Court took the ssues rased undetr advsement. Havng consdered the State s Moton, Defendant s Response, the nformatonand arguments presented at the hearng, the Record heren, and beng duy advsed n the premfses, the Court now fnds and concudes as foows. '1. Andrew Royer ( Royer ) was eonvcted of Feony Murder on August 10, 2005, foowng tra byjury. On May 31, 2006, the ndana Court of Appeas affrmed Royer s convcton. On March 5, 2007, Royer fed a petton for post convcton reef, whch was amended on, May 17, On January 6, 2011, the post convcton court hed an evdentary on Royer's amended petton. On May 17, 2011, the post convctor court dened post-convcton reef. Royer appeaed the post-convcton court's dena of hs petton for post-convcton reef, and the ndana Court of Appeas affrmed that decson n an unpubshed Memorandum Decson on December 20, 2011.

2 } y, V. 2. On June 13, 2018, Defendant, by Eot Sosar ("Sosar ) and co counse, Frances Watson, a censed ndana attorney, fed a Moton for Reef under nd. Tra Rue 60(B). That Moton s currenty pendng n ths Court. 3. Later on June 13, 2018, Sosar hed a press conference n Ekhart, ndana, durng whfch tme he made a number of statements aeged by the State to be contrary to nd. Professona Conduct Rue Specfcay, nd. Professona Conduct Rue 3.6(a), provdes, n reevant part, as foows a) A awyer who s partcpatng or has partcpated n the nvestgaton or tgaton of a matter sha not make an extrajudca statement that the awyer knows 0r reasonaby shoud know w be dssemnated by means of pubc communcaton and w have a substanta kehood of materay prejudcng an adjudcatve proceedng n the matter. 5. Addtonay, nd. Professona Conduct Rue 3.6(b) conssts of an extensve st (1-7(v)) of matters about whch a awyer may make statements, notwthstandng paragraph (a): The Commentary to nd. Professona Conduct Rue 3.6(b) provdes that the st s not ntended to be an exhaustve stng ofthe subjects upon whch a awyer may make a statement, but aso statements on other matters may be subject to paragraph (a). 6. t s partcuary approprate n ths nstance for the Court to aso reference the Commentary to nc. Professona Conduct Rue 3.6 whch advses as foows: [1] t s dffcut to strke a baance between protectng the rght to a far tra and safeguardng the rght of free expresson. Preservng the rght to a far tra necessary entas some curtament of the nformaton that may be dssemnated about a party pror to tra, partcuary where tra byjury s nvoved. f there were no such mts, the resut woud be the practca nufcaton ofthe protectve effect ofthe rues of forensc decorum and the excusonary rues of evdence. On the other hand, there are vta soca nterests served by the free dssemnaton of nformaton about events havng ega consequences and about ega proceedngs themseves. The pubc has a rght to know about threats to ts safety and measures amed at assurng ts securty. t

3 r aso has a egtmate nterest n the conduct ofjudca proceedngs, partcuary n matters of genera pubc concern. Furthermore, th'e subject matter of ega proceedngs s often of drect sgnfcance n debate and deberaton over questons of pubc pocy. Sosar argued to the Court that nd. Professona Conduct Rue 3.6 does hot appy n thé nstant case because no tra s pendng and the Rue covers ony tra pubcty. The Court dsagrees wth ths over smpfcaton of the ntent of the Rue. Whe the capton to the Rue may read Tra Pubcty," the cear'and express anguage of paragraph (a) s that dssemnaton of extrajudca statements that w have a kehood of materay prejudcng an adjudcatve proceedng (Emphass added) s prohbted. ndeed, that anguage, as we as ega proceedngs" s used throughout the Rue, the Commentary, and n case aw. See, e.g., n re: Brzz, 962 N.E.2d 1240 (nd. 2012); n re: Ltz 721 N.E.2d 258 (nd. 1999). n ths case, Royer's Moton for Reef under nd. Tra Rue 60(B) s currenty pendng before ths Court. Therefore, an adjudcatve proceedng s at ssue. Dependng on the outcome of that Moton, foowng hearng(s) thereon, a new tra may or may not resut. t s rreevant that a tra s not n ths nstance mmedatey occurrng or pendng. nd. Professona Conduct Rue 3.6 provdes the framework for protectng proceedngs, not just tras. Sosar s argument that nd. Professona Conduct Rue 3.6 does not appy n the current stuaton fas.' Addtonay, Sosar contends that he made no statements that voate nd. Professona Conduct Rue 3.6, as ony nformaton contaned n the pubc record was stated at the press conference, aong wth matters he has a consttutona rght to say on behaf of

4 Royer. The Court carefuy revewed the State s Moton, as we as Royer s Response, aong wth the varous attachments referencng news artces about the conference, Partcuary troubng to the Court were Sosar s statements at the subject press conference characterzng systemc faure' and an epdemc n Ekhart County where peope are wrongfuy convcted because of poce corrupton, unnsprng defense counse and an overzeaous prosecutor. Sosar went on to say that these-factors contrbuted toandrew Royer beng wrongfuy convcted of a murder that he's absoutey nnocent of." Sosar aso stated that we have proven that hs convctonv was an absoute fraud and the convcton was based on ntentona msconduct." Addtonay, vdeos of proposed wtnesses were reeased and Sosar naccuratey referred to the pendng Tra Rue 60(B) Moton fed n ths Court as an appea. 10. The ndana Supreme Court n n re: Ltz 721 N.E.2d 258 (nd. 1999) addressed behavor such as ths and hed that Ltz s pubcaton of a etter n severa oca newspapers whch states hs cent commtted no crme, crtczed the prosecutor's decson to retry the case, and mentoned hs cent had passed a e detector test consttuted a voatonof nd. Professona Conduct Rue 3.6(a). 11. n sum, Sosar s comments and statements are beyond the scope of the exceptons 3 stated n nd. Professona Conduct Rue 3.6(b) as to what a awyer who s partcpatng n tgaton of a matter may state. The statements are hghy nfammatory, defamatory, naccuratey state the aw as t exsts at ths tme wth respect to Royer's convctonj anc draw ega concusons about matters not yet adjudcated. Sosar's actons go beyond smpy summarzng evdence that s a matter of pubc record. Further, any aeged.

5 . ' L new evdence" must be heard n accordance wth the judca process before any ega concusons may be feached. Essentay, the extrajudca statements made by Sosafr at the pubc press confefence, and whch were reported n the meda, do exacty what the Rue prohbts formng pubc opnpn that has a substanta kehood of materay prejudcng the adjudcatve proceedngs pendng n ths Court. 12. Aso, Sosar mscharacterzes the proceedng on the State's Moton for Emergency Hearng and Request for njuncton as a request for premnary njuncton under nd; Code The crcumstances n the nstant case are akn to these n South Behd Trbune v. Ekhart Crcut Court, 691 N.E.2d_ 200 (nd. Ct. App. 1998). n that case, the Court affrmed the decson of the tra court, whch had dened a moton to quash a;gag order on the partcpants n a oca murder tra and restranng the partes from dscussng the case wth the meda. To decde whether pretra pubcty, or as n the nstant case, pre adjudcatve proceedng pubcty, justfes a gag order, the standard by whch to measure justfcaton s whether there s a reasonabe kehood that such 1 pubcty w prejudce the proceedngs. South Bend Trbune, 691 N.E.2d at 202. The tra court must examne the nature and extent of the pre proceedng pubcty to determne whetherths reasonabe kehood standard has been met. jg. The tra court s n the best poston to judge the prejudca effect the subject pubcty woud have on the judca proceedngs. f. at Here, the Court fnds that the statements Sosar made at the pubc press conference hed on June 13, 2018, voated nd. Rue of Professona Conduct 3.6(a) n that they: were extrajudca statements that Sosar knew or reasonaby shoud have known woud

6 k be dssemnated by mea ns of pubc communcaton and woud have a substanta kehood of materay prejudcng the adjudcatve proceedng that s pendng n ths matter, specfcay, hs Tra Rue 60(B) Moton. 14. Whe the Court ceary recognzes Sosar's FrstAmendment rght to free expresson, as noted by the ndana Supreme Court n the Commentary to nd. Professona Rue of Conéuct 3.6, that rght must be baanced wth the rght to far and mparta ega proceedngs, whch may enta some restrctoh of the nformaton that may be dssemnated about a party pror to and durng those proceedngs. nd. Professona Rue of Conduct 3.6 does not curta free speech except to the extent necessary to protect the correspondng rght to far proceedngs. Ths s the bass upon the Court s actng. 15. For a these reasons, Sosar s hereby enjoned from makng extrajudca commentary and statements to the extent expaned n nd. Professona Rue of Conduct 3.6 on the matter that s pendng before ths court. Faure to compy wth ths Order w be deemed wfu faure to compy wth nd. Professona Conduct Rue 3.6 and s subject to approprate sanctons. T S THEREFORE, ORDERED, ADJUDGED, and DECREED that the State 0f ndana's Moton for Emergency Hearng and Request for njuncton s hereby Granted. Sosa'r, as we as the State, are hereby restraned and prohbted from makng extrajudca commentary and: WMM statements on the matter that s pendng before ths court n ths case. DATED ATGOSHEN, jffc NDANATHS DAY OFJULY, Hon. Teresa L. Catado, Judge Ekhart Superor Court No. 3