Special prosecutor unwarranted despite deputy’s conflict, COA holds

A court order appointing a special prosecutor in an estate theft case was overruled Wednesday by the Indiana Court of Appeals, which found that despite a deputy’s apparent conflict of interest with the defendant, the entire prosecutor’s office did not need to be disqualified.

The appellate panel reversed the order appointing a special prosecutor and remanded State of Indiana v. Tammy R. Herrmann, 20A-CR-00307, to the Franklin Circuit Court.

Tammy Herrmann was charged with Level 5 felony theft and Level 6 felony forgery stemming from a grand jury indictment. Herrmann, a home health care worker, was accused of stealing more than $50,000 between 2012 and 2018 from the account of Evelyn Anthony. Her niece and personal representative, Maria Hensley, grew suspicious about several checks written from the account, and the prosecutor’s office undertook an investigation that led to the grand jury.

Anthony’s estate is represented by Eugene Stewart, a 50-year attorney who maintains a private practice in Brookville and is a part-time deputy in the prosecutor’s office, where he primarily handles child-support matters, though he has appeared in some criminal cases.

Herrmann moved for a special prosecutor under Indiana Code section 33-39-10-2(b)(2), and the trial court after a hearing granted the motion and appointed the Dearborn County Prosecutor to the case. The trial court found “clear and convincing evidence has been presented establishing that the Franklin County Prosecutor’s Office has an actual conflict of interest[.]”

But the COA reversed on the state’s interlocutory appeal, noting that Herrmann cited no cases where the conflict of a deputy required the disqualification of the entire county prosecutor’s office.

“It is well settled that if the elected prosecutor has a conflict of interest, the whole office is disqualified,” Judge Nancy Vaidik wrote for the panel. “However, it is not necessary to disqualify the whole office if one deputy has a conflict of interest. Here, it is not necessary to disqualify the whole office, since the deputy prosecutor who has the conflict is a part-time deputy who primarily handles child-support matters and has had no involvement in the criminal case against Herrmann.”

The panel likewise rejected in a footnote Herrmann’s argument that Stewart “stands to gain more attorney’s fees in the Estate case if she is convicted and ordered to pay restitution to the Estate. At the hearing, Stewart testified that he was paid a flat fee in the Estate case, that his fee had been paid, that his involvement in the Estate case was over, and that if Herrmann was ordered to pay restitution to the Estate he would not get any of it and it would go straight to the beneficiaries. … The record does not support Herrmann’s claim that Stewart has a financial interest in the outcome of this case,” the panel noted.