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The Court of Appeals of Indiana has once again declined to order an Elkhart County judge to recuse herself from a post-conviction case based on allegations of prejudice stemming from previous wrongful-conviction proceedings.
In January 2000, a jury convicted Reginald Dillard of the August 1998 murder of Christopher Thomas, and the Elkhart Superior Court sentenced Dillard to 65 years in prison.
In October 2001, the Indiana Supreme Court affirmed Dillard’s conviction on direct appeal.
In July 2022, Dillard, represented by attorneys Jimmy Gurulé and Elliot Slosar, filed a petition for post-conviction relief. He also filed a motion for a change of judge pursuant to Post-Conviction Rule 1(4)(b).
In that motion, Dillard argued that the post-conviction judge had been a deputy prosecutor in the Elkhart County Prosecutor’s Office from 1998 until 2002, “during the time of the investigation of the Christopher Thomas homicide and Mr. Dillard’s trial.” Dillard said he intended to seek discovery from the prosecutors working at that time, including the judge, to support a claim that the Elkhart County Prosecutor’s Office and Elkhart police had a pattern of failing to disclose Brady evidence.
Also, Dillard noted the judge had been married to an Elkhart Police reserve officer from 1992 until 2003.
Finally, he claimed the post-conviction judge “sits on the same bench” as Judge Michael Christofeno, who, according to Dillard, “is implicated in significant misconduct” in his role as deputy prosecutor working on Dillard’s case.
But the state argued Dillard had not presented a viable argument for recusal, and the post-conviction court denied the change-of-judge motion.
On interlocutory appeal, Dillard argued that decision was clear error. But the Court of Appeals affirmed, with Judge Rudolph Pyle writing the opinion for the appellate court.
In his appeal, Dillard pointed to the case of Andrew Royer, who was exonerated after being convicted in 2005 of murder in Elkhart County.
In the Royer case, the same judge presiding over Dillard’s post-conviction proceedings found that Slosar had violated Indiana Rule of Professional Conduct 3.6. That ruling, Dillard argued, supports a rational inference of bias or prejudice against him.
The COA disagreed.
“Rather, the trial court simply concluded that Attorney Slosar’s press conference statements regarding systemic police misconduct in Elkhart, which he had made before the adjudication of Royer’s Trial Rule 60(B) motion, violated Rule of Professional Conduct 3.6(a),” Pyle wrote. “Further, and more importantly, the trial court’s July 2018 order does not mention Dillard or anything about Dillard’s case.”
The appellate court also rejected Dillard’s arguments that the post-conviction judge’s tenure as a deputy prosecutor or previous marriage to an Elkhart police officer supported a rational inference of bias or prejudice.
“In sum, the recited historical facts on which Dillard based his motion for a change of judge simply do not support a rational inference of bias or prejudice against Dillard as contemplated by Post-Conviction Rule 1(4)(b),” Pyle wrote. “We further note that the post-conviction court has neither expressed an opinion on the merits of Dillard’s case nor attacked his character.
“Accordingly,” he concluded, “because we are not left with a definite and firm conviction that a mistake has been made, we conclude that the post-conviction court did not clearly err in denying Dillard’s motion for a change of judge.”
Judges Terry Crone and Cale Bradford concurred in Reginald Dillard v. State of Indiana, 23A-PC-261.
The judge, Teresa L. Cataldo, was the subject of a similar change-of-judge challenge recently resolved by the Court of Appeals.
Like in Dillard’s case, the other case — Pink Allen Robinson v. State of Indiana, 22A-PC-1102 — involved a motion for Cataldo’s recusal based on her time as a deputy prosecutor, her former marriage and the order against Slosar. Cataldo likewise denied recusal there, and the COA likewise affirmed.
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