Over objection, court appoints public defenders to death penalty case

The Indianapolis man facing a possible death penalty for allegedly killing a Southport police officer is scheduled to appear in court Friday with a new legal team, including the former dean of Valparaiso Law School.

Jason Brown, who is accused of shooting and killing Southport Police Department Lt. Aaron Allan in July 2017, has been represented by Indianapolis criminal defense attorney Denise Turner.  However, Marion Superior Judge Sheila Carlisle, concerned about Turner’s ability to handle a capital murder trial, referred Brown’s case to the Marion County Public Defender Agency.

The public defender agency has since tapped Andrea Lyon to serve as lead counsel on Brown’s defense team. She will be joined by public defenders Ann Sutton and Laura Pitts as well as Turner.

Lyon, a nationally known death penalty attorney and former dean of Valparaiso Law School, has extensive experience representing defendants charged with capital murder. She has tried more than 130 homicide cases and defended more than 30 potential capital cases. In 1990, she founded and directed for five years the Illinois Capital Resource Center, which trained and supported attorneys representing death row inmates.

“Her expertise is without question,” Marion County Chief Public Defender Robert Hill said.

Turner, who is representing Brown pro bono, said she is frustrated and worried about her client. She is considering making an interlocutory appeal to the Indiana Supreme Court to argue that under the Constitution, the court cannot force appointed counsel on a defendant who is already represented.

Carlisle acknowledged Brown’s Sixth Amendment right to choose his own counsel in her June 17 order. But she maintained the “right to counsel also includes the right to effective assistance of counsel.”

She also highlighted Rule 24 of the Indiana Rules of Criminal Procedure, which requires two capital-qualified attorneys represent defendants in death penalty cases. Citing Lowrimore v. State, 728 N.E.2d 860 (Ind. 2000), Carlisle noted having two attorneys principally benefits the defendant but also assures the state the trial will be properly conducted.

Carlisle pointed out Turner had not found co-counsel despite repeatedly telling the court she was actively looking and, at times, indicating she was close to bringing another attorney on board. The order included excerpts of transcripts from five hearings where the court inquired about the status of co-counsel but noted contrary to Turner’s assurances over the past 18 months, no second attorney had entered an appearance.

“Given the amount of time that has passed, coupled with the Defendant’s request for a continuance of the February 2020 jury trial date, the Court finds that the appointment of counsel is necessary to ensure the high quality representation that this capital case demands,” Carlisle wrote.

Turner said everything was fine with Brown’s case. The depositions were almost done, and funding had been approved for the experts, including a toxicologist and neuropsychologist. She conceded she is still looking for co-counsel but she felt she had time to find someone and prepare for the trial.

Hill echoed the court’s concerns about co-counsel. He said a team is now in place “to ensure top quality representation and compliance with Criminal Rule 24, which wasn’t the case before the public defender’s office was appointed.”

The work demanded by these kinds of cases is too much for single pro bono counsel, he said. Pointing to capital murder trials handled by the public defender agency in the past, he estimated the cost can exceed $1 million, and attorneys can spend upwards of 2,000 to 3,000 hours of work on such cases.

“The amount of time required on these cases is astronomical,” Hill said. “It’s not something you can volunteer your way through.”

Brown now has four attorneys representing him. Lyon said she will work cooperatively with her team members and everybody will have an equal voice. But when a decision has to be made, it will be made by the lead counsel.

Turner believes the change in counsel is linked to money. Now that the public defender is part of the case, the state will reimburse Marion County for 50 percent of all defense’s costs. The county would have not received any funds if Turner, a private attorney, had remained as counsel.

Having spent nearly two years on the case, Turner said she is shocked and confused by the court’s order.

“It’s frustrating,” she said.