INDIANAPOLIS — A LaPorte County case heard Tuesday by the Indiana Supreme Court could set a new state standard for determining when prosecutor misconduct is so egregious that a criminal suspect no longer can be made to stand trial.
John Larkin, of Long Beach, is accused of killing his wife, Stacey, at their home on Dec. 11, 2012. He claims Stacey was shot twice as they struggled over a gun that she was trying to remove from a safe.
Larkin was arrested immediately following the shooting and he requested to speak with his attorney while in police custody.
Long Beach police officers ignored that request and instead questioned Larkin for at least two hours without his attorney present, according to court records.
Records show that two days later, while Larkin spoke with his attorney about defense strategy during a police interrogation break, the officers left their video recorder running on what was supposed to be a private meeting.
That video later was viewed by LaPorte Chief Deputy Prosecutor Robert Neary. He also ordered a transcript be made and had it distributed, including to the special prosecutor appointed to handle the case after John Espar was elected in 2014 replacing Bob Szilagyi as county prosecutor, according to court records.
Court records also indicate that police or prosecutors likely tampered with evidence from the safe before providing it to Larkin's examiner.
Supreme Court Justice Steven David did not mince words as Deputy Attorney General Eric Babbs urged the high court to overturn the LaPorte Circuit Court decision tossing the voluntary manslaughter case against Larkin that was affirmed in June by the Indiana Court of Appeals.
"This is not a flagship case for the state, is it?" David asked.
"No, your honor," Babbs admitted. "Inevitably one hopes that the kind of misconduct that occurred here won't happen again."
Nevertheless, Babbs argued that prosecutors still should be provided an opportunity to show that not all the evidence in their case is hopelessly tainted, as well as the ability to proceed to trial with whatever evidence a judge finds was properly obtained.
He said a 2016 Indiana Supreme Court ruling, involving eavesdropping by Michigan City police and Neary on what was supposed to be a private conversation between a criminal suspect and his attorney, requires prosecutors be given an evidentiary hearing.
In response, Larkin's attorney Stacy Uliana said what Babbs is asking for is "too little, too late."
"For the last two or three years Mr. Larkin has been fighting for a fair trial, and every time that the state of Indiana had the opportunity to cure the misconduct that they created, they met it with delay, resistance and oftentimes, even more misconduct," Uliana said.
Uliana and Babbs also wrangled over whether prosecutors, as the Court of Appeals found, have forfeited their right to try Larkin due to the excessive delay in commencing a trial.
"There was an opportunity to try John Larkin ... and they had to do it in the confines of a fair trial — they had to get rid of the taint," Uliana said. "The state never took either of these burdens, these duties, seriously."
The justices did not indicate when they might issue a ruling. There is no statutory timeline for a decision by the high court.
Separately, the Supreme Court last month suspended Neary's law license for four years, without automatic reinstatement, after concluding that "the egregious nature of (Neary's) conduct cannot be overstated."