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ATTORNEY FOR RELATOR Jacob Dunnuck Muncie, IN

ATTORNEYS FOR RESPONDING PARTY Gregory F. Zoeller Attorney General of Indiana Cynthia Ploughe Deputy Attorney General Indianapolis, IN J.A. Cummins Special Prosecutor Selma, IN

FILED
of the supreme court, court of appeals and tax court

Nov 13 2009, 1:15 pm ______________________________________________________________________________

In the

CLERK

Indiana Supreme Court
_________________________________ No. 18S00-0909-OR-411 STATE OF INDIANA EX REL. ADRIAN D. KIRTZ v. THE DELAWARE CIRCUIT COURT NO. 5 AND THE HON. THOMAS A. CANNON, JR., AS JUDGE THEREOF _________________________________ Original Action _________________________________ Relator,

Respondents.

November 13, 2009 Per Curiam.

On October 16, 2009, this Court granted the Relator, Adrian D. Kirtz, relief by issuing a permanent writ of mandamus and prohibition requiring the Respondents, the Delaware Circuit Court No. 5 and the Honorable Thomas A. Cannon, Jr., the judge thereof, to vacate the order appointing J. A. Cummins as special prosecutor in the criminal case pending below against Kirtz and to appoint a different person to serve as special prosecutor pursuant to Indiana Code Section 33-39-1-6. The writ noted that the scheduled trial date was approaching and this Court was tak-

ing under advisement whether to issue later an order or opinion explaining the reasons for granting the writ. This opinion states those reasons. Background In January 2007, the State charged Kirtz with two counts of dealing in cocaine, a Class A felony, and one count of possession of cocaine, a Class C felony. Kirtz entered a plea of not guilty. In March 2009, a Delaware County deputy prosecutor signed and filed a request for appointment of a special prosecutor. On April 1, 2009, the Delaware County Prosecutor signed and filed an amended motion for appointment of a special prosecutor. The amended motion alleged that Kirtz "has been a cooperating witness in several cases both pending and closed in both state and federal court" and that a special prosecutor should be appointed "due to the nature of those investigations and the substance of [Kirtzs] testimony, in order to avoid any appearance of i mpropriety[.]" (R. 184.) That same day, the trial court granted the States amended request,

without a hearing, and appointed Cummins, a former chief deputy prosecutor in Delaware County, as special prosecutor for the case against Kirtz. Kirtz promptly objected to Cumminss appointment. Following an evidentiary hearing and arguments on Kirtzs objection, the court overruled Kirtzs objection.

Kirtz filed this original action seeking a writ requiring the trial court to vacate its appointment of Cummins and to appoint another person to serve as special prosecutor. Cummins and the Attorney General of Indiana each filed a brief opposing issuance of the writ. After considering Kirtzs petition and other application papers and the opposing briefs, we granted the writ. Discussion To serve the ends of justice and preserve public confidence in the criminal justice system, it sometimes becomes necessary for a trial court to appoint a special prosecutor. The statute authorizing appointment of a special prosecutor provides, as relevant to this case, that a circuit or superior court judge "may appoint a special prosecutor if: (A) the prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and (B) the court finds that the appointment is necessary to avoid the appearance of impropriety[.]" Ind. Code

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