Defense attorneys feud over who represents death penalty defendant in officer’s shooting

Defense attorneys representing Jason Brown, an Indianapolis man facing the death penalty for allegedly killing a police officer, are feuding with his appointed counsel, raising the question again of when a defendant’s right to counsel ends.

Solo practitioner Denise Turner has been representing Brown since August 2017, when he was charged with murder after allegedly shooting Southport Police Lt. Aaron Allan following a traffic accident. Concerns over Turner’s inexperience in handling a capital murder case, along with her struggles to find co-counsel, eventually led the Marion Superior Court in August 2019 to direct the Marion County Public Defender Agency to appoint counsel.

The agency named Andrea Lyon, an experienced criminal defense attorney who has defended more than 30 potential capital cases, as lead counsel. To assist her, public defenders Ann Sutton and Laura Pitts were appointed, and Turner was retained, as well.

Turner filed an interlocutory appeal, which the Indiana Supreme Court accepted Nov. 8. About 10 days later, on Nov. 17, Anderson attorney Jennifer Shircliff entered her appearance as Turner’s co-counsel.

That same day, Turner and Shircliff filed a motion on behalf of Brown with the trial court seeking to withdraw the appearance of appointed counsel and lift the stay on proceedings entered when Turner petitioned for interlocutory appeal. Their motion argued Shircliff’s appearance resolved the issue surrounding co-counsel that had driven the trial court to refer the case to the public defender.

Also, their motion reiterated their long-standing argument that Brown has a right to the counsel of his choice under the Sixth Amendment of the U.S. Constitution and Article I, Section 13 of the Indiana Constitution.

The Marion County Public Defender Agency responded Nov. 18 with a motion to strike both Brown’s motion and the appearance of Shircliff.

Echoing the concerns of the trial court, the appointed counsel argued there is nothing that indicates Turner and Shircliff have the resources or knowledge to conduct a complex death penalty defense. Moreover, appointed counsel pointed to Indiana Rule of Criminal Procedure Rule 24, as well as guidelines from the American Bar Association and the Public Defender Commission, which all require that lead counsel in capital cases have second chaired at least one other death penalty case.

The appointed counsel also requested the trial court strike Shircliff’s appearance. Noting the trial court already tapped the public defender agency to represent the defendant, the appointed counsel added Shircliff did not consult with them before entering her appearance, and there is no evidence that she is qualified to work a death penalty case.

Turner and Shircliff filed a response within hours. They asserted the issue before the Supreme Court raised in the interlocutory appeal is not whether counsel is qualified, but whether “forcing appointed counsel on an indigent defendant who has already retained counsel of choice” is constitutional. In addition, no legal precedent or authority restricts an individual’s right to choose counsel to only those attorneys who demonstrate they have the resources or knowledge.

Furthermore, they referred to the trial court’s own statement that Criminal Rule 24 requirements are not mandatory for private or pro bono counsel.

Finally, Turner and Shircliff countered the appointed counsel by asserting the public defenders violated Indiana Rules of Professional Conduct 1.2(a) and 1.4(b). They claim Lyon, Sutton and Pitts ran afoul of the rules because they did not speak to or consult with Brown prior to filing the motion to strike.

Indeed, according to the response, Brown wrote a letter in July 2019 stating he did not want public defenders on his case, and he has mailed two other handwritten letters to the public defender agency as well as to Lyon, demanding they cease any further contract with him.

The appointed counsel filed a brusque memorandum of law Nov. 19 in support of its motion to strike. In addition to expressing impatience over Turner’s stance that the public defenders have failed to cite legal precedent, the filing goes on to dismiss her assertion that Shircliff’s appearance remedies the trial court’s only concern.

“While Ms. Turner purports to have ‘solved’ the issue which has been certified to the Indiana Supreme (C)ourt by bringing in a second lawyer, that is not the issue, as she is aware,” the memorandum states. “It is a question not of having two lawyers, but of having learned counsel in the lead to protect Mr. Brown’s rights and his life.”

The appointed counsel then cited precedent from Indiana and federal courts in arguing the right to choose counsel has limits. Specifically, Indiana has held a defendant’s right to counsel is not absolute and unqualified, while federal appellate courts have found a defendant does not have the absolute right to the assistance of counsel of his choice.

On Nov. 20, the Marion Superior Court issued its order on Turner and Shircliff’s motion to withdraw appointed counsel. The trial court declined to rule on any pleading until the Indiana Supreme Court directs the lower court to resume jurisdiction.

At the same time as they were filing the memorandum with the trial court, the appointed counsel filed a verified motion to preserve timeliness of notice of appeal for interlocutory appeal with the Indiana Supreme Court. The public defenders contended “a legitimate concern has arisen” over whether Turner would continue with her appeal, so they requested the Supreme Court not only order the public defender agency to file a notice of appeal, but also to recognize the agency as the appellants.

The Indiana Supreme Court issued a single-page order Nov. 21, denying the verified motion.

“The Agency does not identify the order to be appealed in its potential appeal as the certified interlocutory order (the Referral Order),” the Supreme Court’s order stated. “Instead, it suggests it would appeal the trial court’s August 29 order (which itself was not certified for interlocutory appeal under Ind. Appellate Rule 14(B)) or this Court’s November 8 order accepting jurisdiction over the interlocutory appeal (which order is not the proper subject of an interlocutory appeal).”