Indiana court operations on Indirect Criminal Contempt:
Characteristics
- Willfulness
- Deliberate intention to either
- Disobey or interfere with process of lawful order
- Influencing, intimidating, or injuring a witness, or
- Providing a false or inaccurate report of a case.
- Conduct occurs outside judge’s presence, or judge’s knowledge of incident is not first-hand or immediate.
Procedures
- New, separate cause of action (MC). I could be totally wrong but... is this saying that McLeland should have filed this as a separate criminal cause, not as a filing inside RA's cause?
- Action is prosecuted in name of State.
- Rule to Show Cause is required.
- Requires appointment of special judge.
- Due Process Requirements:
- Service of Rule to Show Cause and Order to Appear;
- Representation by Counsel;
- Rights advisement;
- When indigent, court-appointed counsel;
- A sentence exceeding six months invokes the right to trial by jury.
- Standard of proof: The evidence must show that contemnor acted with willful and intentional disobedience. contemnor.. what a fancy word
- Defendant – Ind. Code § 34-47-3-6
- Defendant is required to answer Rule to Show Cause.
- If defendant fails to appear or refuses to answer, trial court may proceed to attach and punish defendant for contempt.
- Defenses:
- Inadequate notice as to facts constituting contempt.
- Inability to obey (burden of proof is on defendant).
- Inability to pay (burden of proof in on defendant).
- Sanctions:
- Fine;
- Imprisonment;
- Fine and imprisonment;
- Reasonable sanction at the judge’s discretion
IANAL, this is all JMO as I read through the motion.
1-5: B&R preemptively defied the Gag Order by disagreeing that a gag order was needed on 11/22/22, and then putting out a press release 12/1/22.
B&R were appointed 11/14 and ordered to enter appearances and attend hearing 11/22. This was essentially their first day on the case. Is it not possible that on 11/22 they didn't have intentions of making any public statements, but by 12/1, after reviewing information about the case and talking to their client, they decided to issue the press release, having not been ordered not to?
6: JG issues Gag Order. "The Order directed the attorneys not to comment on this case
to the public or to the media, directly or indirectly, by themselves or through any intermediary, in any form."
BBM - The Gag Order actually specifics by Means of Public Communication
View attachment 479035
12/1/22 12/2/22
The language about "to the public" which is somewhat vague as to whether it means 'any unauthorized 3rd party' or 'the larger community', is only included in the 12/2/22 order, which is in effect until the 1/13 hearing. That language is absent from the order from 1/13/23 which makes the Gag Order permanent. Therefore, it's clear that the Gag Order applies by statements made to the media/by public communication.
1/13/23
7: State alleges AB violates Gag Order with the email to BW including outline of discovery.
State does not even allege that this was a willful action by AB, which is a requirement of contempt. In addition, BW isn't the media or the public.
8: Alleges B&R failed to notify the court or state of the email to BW.
seemingly irrelevant relating to an order for Contempt of Court?
9: Alleges that since BW disseminated the info from the outline to other people and "multiple viewers" on Youtube. "This dissemination of material from the case is a violation of the Gag Order that directly relates back to Defense Counsel."
BW can't violate the gag order, he wasn't subject to the gag order. The D can't violate the gag order by accidentally sending a private person an email, BW isn't the media. He has 578 youtube followers and barely any views.
10-11: Protective order put in place 2/13/23
12: State informed of CS photos leaked which matched the photos the defense attached in FM.
Doesn't mention whether the leaks were all pics of printed photos or if some were taken on a computer, which is a lingering question I had about the leaks
13-14: Discussing chain of the leaks from MW to RF to 'Podcaster', AB informs State and JG of the actions of MW. "Ironically, this was hours after investigators spoke to Fortson and determined that MW leaked the photos and he was the connection to the Defense."
Is this insinuating that AB's timing in informing them about MW's actions was convenient and only done because he knew they were getting closer?
15: AB "admitted" he "voluntarily" gave MW and another "civilian" a copy of the FM to review. "The Frank's Memorandum and exhibits contained protected discovery information that included very sensitive crime scene photos that were "leaked" by MW. Specifically, the investigation revealed that MW gave the photos to an individual named RF, who then passed them on to individuals who distributed them throughout the internet."
These 2 sentences seem to be juxtaposed to imply that MW was given access to the FM and the exhibits and that this is where he got the pics. But it only says that AB let others read the actual memo. Most of us have read it too... And the Supreme Court of Indiana said that we should be able to read it per IN's public access rules... The use of the phrase "protected discovery information" is imprecise. The protective order limits access to the actual discovery MATERIAL, it doesn't say that all of the INFORMATION contained within discovery is confidential, which would be a ridiculous standard and impossible to enforce unless you don't think the D has the right to file any pre-trial motions because some of the information included might be reported on in the media.
16: Referencing the letter BR sent on 10/12/23. References Section 4 of the letter he says BR "admits that MW had access to the conference room" and "admits that it was negligent to allow MW alone in the office where sensitive discovery material was stored", and referencing section 10 says BR "accepts responsibility for a lapse in security that caused the photos to be leaked. Admitting to this Court that they are in indirect contempt of the Court's Orders."
Because Contempt needs to be willful, the mistake of not having the office more secure is not a contemptuous action. Contrary to the State's claims about the letter, in section 4, BR does not admit AB had any knowledge that MW was in the back of the office or allowed him there, only points out that any argument of negligence would be in that MW was able to get back there to do what he did.
View attachment 479066
Exhibit K in this document: 11/6 RecordofProceedingsVolume 1.pdf
17: References affidavit of MW
18: Allegation of ongoing leak to RF by MW, that RF knew "detailed real-time knowledge about when evidence was submitted to the Defense and the contents of that evidence" and "the actions Defense took in trial preparation"
AB talking to MW (even granting that is how MW obtained this info to share with RF and that the info was accurate) is not a statement to the media, so it doesn't violate Gag Order. AB discussing the case with MW is Not allowing him access to discovery MATERIAL, so it isn't a violation of the Protective Order. This still contains no allegations of a willful action by the D. Again it seems that the State's allegation relies on the D not being allowed to discuss the facts of the case at all? Perhaps we shouldn't even have a D for this case!
19-20: Recounting investigation of MW/RF
21: SW revealed screenshots of convos with MW and AB in which they "discuss the RA case" "candidly talk about the Court and the State" alleges that this shows "a free flow of information that is protected by the Court's Gag Order and the Order protecting discovery."
They don't give any examples of what AB shared that was violative. If anything in the texts WAS violative, I'm sure they'd share in more detail. AB talking *advertiser censored* about NM and JG isn't protected under the Gag Order since MW isn't the media. State doesn't even allege any discovery info was shared over texts. Totally irrelevant info.
22: States the D "failed to secure evidence and discovery materials, specifically graphic crime scene photos, which were then distributed to the public" and that "the disclosure was ongoing"
Again this is very imprecisely worded. He uses "the disclosure" to reference "a failure to secure". Failing to have good security measures to the office is not the same as (willfully, actively) disclosing material. Telling a friend about the progress on the case and your thoughts on it isn't the same thing as that friend viewing protected discovery. These aren't things that should be grouped together as "ongoing disclosures".
23: Says that DH admitted B&R should be sanctioned and "those sanctions have yet to be addressed"
except for the part that they were improperly kicked off the case for 2 months lol
24: states the families have been revictimized and harmed by the leaks.
25: summarize the allegations: "not being completely honest with the Court, violating the Court's Gag Order[...], and failing to comply with the Protective Order"
IMO this motion seems rushed and half-assed and reads more like a press release about how terrible RA's attorneys are, considering NM barely even attempted to show evidence of the most important aspect of Contempt:
WILLFULNESS.
