State v. Herrmann, No. 20A-CR-307, __ N.E.3d __ (Ind. Ct. App., Jul. 29, 2020).

Vaidik, J.

After Tammy R. Herrmann was indicted by a Franklin County grand jury for theft and forgery, she filed a petition to appoint a special prosecutor, alleging that one of the three deputy prosecutors in the Franklin County Prosecutor’s Office had a conflict of interest and therefore the whole office should be disqualified. The trial court granted the petition and appointed a special prosecutor. The State now appeals.

It is well settled that if the elected prosecutor has a conflict of interest, the whole office is disqualified. 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. We therefore reverse the trial court.

The State appeals the trial court’s grant of Herrmann’s petition to appoint a special prosecutor.

The petitioner must produce evidence of an actual conflict of interest. Larkin v. State, 43 N.E.3d 1281, 1285 (Ind. Ct. App. 2015); Camm, 957 N.E.2d at 210. The purpose of the special-prosecutor statute is to protect the State’s interest in preserving the public confidence in the criminaljustice system and ensuring that the prosecutor serves the ends of justice. Camm, 957 N.E.2d at 210. “The public trust in the integrity of the judicial process requires that any serious doubt be resolved in favor of disqualification.” Williams v. State, 631 N.E.2d 485, 487 (Ind. 1994), reh’g denied.

Here, Herrmann requests that the entire Franklin County Prosecutor’s Office be disqualified based on Stewart’s conflict of interest. It is well settled that once the elected prosecutor is disqualified, the whole office is disqualified “in order to maintain the integrity of the process of criminal justice.” State ex rel. Goldsmith v. Superior Court of Hancock Cnty., 270 Ind. 487, 491, 386 N.E.2d 942, 945 (1979); see also Larkin, 43 N.E.3d at 1285; Banton v. State, 475 N.E.2d 1160, 1164 (Ind. Ct. App. 1985). The whole office is disqualified because the “prosecuting attorney exercises authority over and speaks through his deputies.” Goldsmith, 270 Ind. at 491, 386 N.E.2d at 945.

However, it is not necessary to disqualify the whole office when one deputy prosecutor has a conflict of interest. Williams, 631 N.E.2d at 487; see also Page v. State, 689 N.E.2d 707, 709 (Ind. 1997). This is because the conflict of one deputy generally does not affect the other deputies in the office.

Herrmann acknowledges this rule but claims that [the deputy prosecutor’s] conflict of interest requires the disqualification of the whole office given its small size. Herrmann, however, cites no cases where the conflict of one deputy prosecutor required the whole office to be disqualified. In any event, the State argues that the size of the office does not matter here since Stewart primarily handles child-support matters, and he has not worked on the criminal case against Herrmann. We agree with the State. Although [the deputy prosecutor] has a conflict of interest given his involvement in the Estate case, it does not require the whole office to be disqualified. We therefore reverse the trial court’s order appointing a special prosecutor and remand this case to the trial court for further proceedings.

Reversed and remanded.

Baker, J., and Bailey, J., concur.

 

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