Keith D. Abney, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Howard Superior Court The Honorable William C.
Menges, Jr. Trial Court Cause No. 34D01-1510-F2-914
ATTORNEY FOR APPELLANT Donald E.C. Leicht Kokomo, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Chandra K. Hein Deputy Attorney General
Before us is an important question we have not often had the
opportunity to determine: what level of involvement by an
attorney in a judge's judicial campaign requires the
judge to recuse from presiding over a case in which the
attorney is involved? We apply case law, Criminal Rule 12,
and the Code of Judicial Conduct to determine that here,
recusal is not required.
and Procedural History
Between October 1, 2015, and October 3rd or
4th, Kokomo Police Sergeant Mark Miller conducted
surveillance on Abney's residence. Sergeant Miller spoke
with Kurt Beck, Brian Dullworth, and Jonah Sands regarding
activity at the residence. On October 5, 2015, Kokomo Police
Officer Adam Martin conducted surveillance on Abney's
residence. Officer Martin observed vehicles arrive and leave
the residence, and he observed a vehicle arrive at the
residence and a white female exit the vehicle, go to the rear
of the residence, enter, and exit approximately one or two
minutes later. He conducted a traffic stop of her vehicle
following an infraction and discovered two females, some
syringes, and a bag of heroin in the vehicle. Officer Martin
obtained a search warrant for the residence.
On October 6, 2015, at approximately 7:43 p.m., Kokomo Police
Officer Zach Rodman, Detective Derek Root, and Officer
Charlie Fourkiller assisted Officer Martin in the execution
of the search warrant. Police discovered Abney, Patrick
Acord, and Joyce Linkenhoker in the residence. They also
discovered a gray rock-like substance that field tested
positive for heroin in the kitchen, as well as drug
paraphernalia that tested positive for methamphetamines, a
pill bottle that contained multiple bags of a substance that
field tested positive for heroin, a .380 handgun, a bag of
syringes, a plastic bag that contained plant material that
later tested positive for marijuana, digital scales, mail
containing Abney's name and the address where they were
located, a monitor with a live feed of surveillance cameras
surveying the outside of the residence, and $1, 625.
Kokomo Police Sergeant Shane Melton read Acord his rights,
and Officer Fourkiller read Abney and Linkenhoker their
rights. Linkenhoker said that she "had some marijuana in
a pipe or a dugout." Transcript at 61. Abney stated that
the gun belonged to a girl named Carrie Russell
("Carrie"), that he had given her fifty dollars,
and that he was holding the gun as collateral. He also stated
that anything Officer Martin finds "is going to be on
the kitchen counter or lower level because he's
wheelchair bound." Id. at 118. When the police
discovered narcotics in the house, Abney stated that it was
going to weigh about an eight ball, which is about 3.5 grams.
Acord told Sergeant Melton that he was selling only his
prescription pills and that he was not a heroin dealer.
In October 2015, the State charged Abney with: Count 1,
dealing in a narcotic drug as a level 2 felony; Count 2,
possession of a narcotic drug as a level 4 felony; Count 3,
possession of methamphetamine as a level 5 felony; Count 4,
maintaining a common nuisance as a level 6 felony; and Count
5, unlawful possession of a syringe as a level 6 felony. On
June 22, 2016, the State filed amended counts including:
Count 1, dealing in a narcotic drug as a level 3 felony;
Count 2, possession of a narcotic drug as a level 5 felony;
Count 3, possession of cocaine as a level 5 felony; and Count
4, maintaining a common nuisance as a level 6 felony.
On October 15, 2015, the court held an initial hearing, Abney
requested the appointment of a public defender to represent
him, and the court did so and scheduled a jury trial for
January 15, 2016. A deputy public defender filed an
appearance on October 23, 2015, and another deputy public
defender filed an appearance on November 24, 2015. On March
11, 2016, the court held a competency hearing and found Abney
competent to understand the proceedings and to stand trial.
In May 2016, the court scheduled a jury trial for June 3,
2016. Abney filed a motion for a continuance, and the court
granted the motion and continued the trial to June 10, 2016,
and later rescheduled the trial to June 24, 2016, due to
On June 23, 2016, Abney filed a motion to recuse the sitting
judge, Judge William C. Menges, Jr., and argued that the
elected Prosecuting Attorney Mark McCann is or recently was a
member of the campaign committee of the judge and that Judge
Menges had an ethical duty to disclose his relationship with
Mr. McCann and/or other members of the Howard County
Prosecutor's office. Abney requested that the court set
the matter for a hearing and upon notice and hearing recuse
from the case.
On June 24, 2016, the court conducted voir dire,
released the jury for the weekend, and held a hearing on
Abney's motion to recuse. Abney's counsel stated that
he spoke with Abney a couple of weeks earlier, Abney had
raised a concern about whether there was a "conflict
between this prosecutor, " that on June 23, 2016 he and
Abney discussed a newspaper article, and that statements in
the article caused him to file the motion to recuse.
Id. at 7. He also stated: "Based upon
Bloomington vs. Kiang, I believe that this needs to
be disclosed. It's obviously been disclosed publically
[sic] now but this relates to a fact that we need to be
disclosed and upon the request of the defendant the recusal
is awarded." Id. at 9. Over the
prosecutor's objection, the court admitted
Defendant's Exhibit A, a newspaper article dated June 10,
2016, which stated in part:
Months ahead of the general election, the race for the
judge's chair in Howard County Superior Court I grows
Democratic candidate for the position of judge, Erik May,
recently called into question the inclusion of county
prosecutors on incumbent Judge William Menges' election
On May 27, May, representing Bradley Morgan, appeared in
Superior Court I where he sought to have Menges recuse
himself from the case.
Over the course of the hearing, May cited a case known as
Bloomington vs. Kiang. He believed the case set a precedent
where Menges would be required to identify, on the record,
his political ties to Chief Prosecutor Mark McCann, who was
at the hearing, and Deputy Prosecutor Mark Hurt, who is
prosecuting the case.
Bloomington vs. Kiang involves a case in which a judge was
forced to recuse herself from the case because the opposing
council's [sic] attorney was found to have been the chair
of the judge's election committee. In an Indiana Court of
Appeals opinion on the case, it was found that "the
relationship between judge and the opposing counsel is of the
type of information that can reasonably be considered
relevant to a possible motion for disqualification" and
that information wasn't shared with the opposing counsel
prior to the case beginning. Because the political tie had
not been disclosed prior to the case beginning, the
judge's impartiality was called into question.
As such, May believed the precedent required Menges to
disclose McCann and Hurt's positions on the judge's
committee and recuse himself from cases involving his
Over the course of the hearing Menges recused himself from
the case, but for a reason not involving any political
The question remains, however, about the ethics of county
prosecutors serving on Menges' reelection committee.
According to legal experts, the most important part of the
equation is an attorney's involvement in the committee.
"It seems to me, if I'm a lawyer on the other side
and this guy signed up for the judge's campaign, I need
to know, " said Charles Geyh, a legal ethics expert at
Indiana University's Maurer School of Law. "Such
things as how much assistance did this guy render before he
left the campaign, to what extent does that imply a
relationship that is close, personally and professionally,
that a reasonable person would look at that and say they
doubt the judge's impartiality. You would want to look at
those facts, look at what that information is, and make an
McCann said as of now he has yet to participate in any
election committee activities on behalf of Menges.
"As I stated in the hearing, I was asked to serve on an
advisory committee for Judge Menges, " said McCann.
"I agreed and that's been some time ago. I've
not actively participated in his campaign. I've not
discussed anything with him in his campaign and actually I
made a courtesy call to Mr. May shortly after I agreed to
that, letting him know that. That was about a day after he
announced his candidacy."
Hurt's statement was similar, and he said he was asked to
have his name listed on a letter of endorsement by Menges.
Since the hearing, he decided not to take part in Menges'
"Judge Menges' support letter has not been
published, " said Hurt in a statement. I was planning to
be on the letter since I believe Judge Menges is a good judge
who serves our local community well. However, given one
probationary license case filed with Judge Menges', and
objections raised by his opponent . . . I am not going to be
listed on a support letter. Under Indiana law, in the
majority of counties in Indiana, trial judges are elected in
partisan elections. It is common for lawyers to be listed on
the letterhead of the campaign committees of judges who they
McCann, on the other hand, said he would continue to support
"As it stands now, unless someone instructs me
otherwise, I will continue to serve on the advisory committee
as that entails, " said McCann. "I don't
believe in any way that interferes with my ability to carry
out my duties as prosecutor."
Menges said he doesn't believe Bloomington vs.
Kiang applies in the matter regarding him and the
prosecutors at this point because in that particular case the
lawyer had served as the chair of the judge's election
committee. Thus far in Menges' campaign, he said he only
sought a public endorsement from the prosecutors.
"It's just a public endorsement, " said Menges.
"It doesn't even come close. The other thing is if
it is a problem, then I would simply ask Mark to not be on
the committee. They haven't done anything yet. We
haven't even at this point, established a committee. Mark
was just asked if they would serve. They indicated they
would. We don't even have the committee yet, let alone
somebody playing an active role in it."
If the prosecutors simply appear on a letterhead or endorse
Menges publicly, Geyh said he didn't see such an act as
calling the judge's impartiality into question.
"If they are neither running his campaign nor
fundraising on his behalf, I'm not all that troubled by a
simple statement of support, " said Geyh. "Lawyers
routinely make modest contributions to the campaigns of
judges before whom they appear, and the judge is not required
to disqualify later as a consequence of that. A simple
statement of support doesn't strike me as that
Menges said Bob Hingst serves as the chair of his reelection
committee at this point, and Chief public Defender Steven
Raquet also serves ...