Denial by justices to take prosecutorial misconduct case draws dissent

Believing that the Indiana Supreme Court should have taken a case involving the “disturbing trend” of alleged prosecutorial misconduct, two justices dissented from their colleagues' decision to not accept the case.

Henry Shell was convicted of Class B felony neglect of a dependent, Class D felony battery and Class A misdemeanor resisting law enforcement, and he was sentenced to 21 years. His convictions were affirmed in a memorandum decision by the Court of Appeals.

Chief Justice Loretta Rush, and Justices Brent Dickson and Mark Massa voted Tuesday to not take Henry L. Shell, Jr. v. State of Indiana (NFP), 52A02-1307-CR-598. But Justice Steven David wrote a three-page dissent, to which Justice Robert Rucker joined.

“To emphasize the significant obligation that attorneys have to follow the rules and assure that justice is properly administered, I believe we should address the issue of whether the alleged prosecutorial misconduct was harmless beyond a reasonable doubt,” he wrote in the order.

In this case according to the record, the prosecuting attorney openly stated to the jury that defense counsel’s “check comes from the government too, so we all work for the government here;” commented three times in front of the jury and over objection on Henry Shell’s post-arrest right to remain silent; and referred to his own opinion as to Shell’s guilt during closing arguments.  

“A reviewing court must determine whether prosecutorial misconduct ‘placed the defendant in a position of grave peril to which he or she would not have been subjected.’ However, this is not to suggest that anything that falls just below this standard is necessarily considered appropriate,” David continued. “Rather, the highest degree of professionalism should continue to govern the behavior of all attorneys at all times. Walking the line of permissible and impermissible conduct creates distrust in our legal system, undermines the rights we have sworn to protect, and discourages collegiality. The profession deserves thoughtful adherence to ethical, professional, and prosecutorial standards.

“Because this Court is passing up an opportunity to resolve what seems to me to be a disturbing trend, I respectively dissent from the denial of transfer.”