Robinson v. State

218 N.E.3d 17

Pink Allen ROBINSON, Appellant-Petitioner

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 22A-PC-1102

Court of Appeals of Indiana.

Filed August 23, 2023

Attorneys for Appellant: Jimmy Gurulé, Kevin Murphy, Exoneration Justice Clinic, Notre Dame Law School, South Bend, Indiana, Robert Hochman, Minje Shin, Admitted Pro Hac Vice, Sidley Austin LLP, Chicago, Illinois

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Kelly A. Loy, Deputy Attorney General, Indianapolis, Indiana

Pyle, Judge.

Statement of the Case

[1] In 2016, the State charged Pink Robinson ("Robinson") with three counts of Level 3 felony robbery while armed with a deadly weapon. A jury convicted Robinson of all three counts in 2018, and the trial court sentenced him to an aggregate sentence of forty-eight years, with three years suspended. This Court affirmed Robinson's convictions and sentence on direct appeal. See Robinson v. State , No. 18A-CR-2212, 2019 WL 4924824 (Ind. Ct. App. Oct. 7, 2019), trans. denied. In 2020, Robinson filed a pro se petition for post-conviction relief. In October 2021, attorney Jimmy Gurulé ("Attorney Gurulé") filed an appearance on Robinson's behalf.¹ Also, in October 2021, Robinson filed a motion for a change of judge pursuant to Post-Conviction Rule 1(4)(b).² The post-conviction court denied Robinson's change of judge motion, and this interlocutory appeal concerns only the post-conviction court's denial of that motion.³ Robinson specifically argues that the post-conviction court clearly erred when it denied his motion for a change of judge. Concluding that the post-conviction court did not clearly err, we affirm the post-conviction court's denial of Robinson's change of judge motion.⁴

[2] We affirm.

Issue

Whether the post-conviction court clearly erred when it denied Robinson's motion for a change of judge.

Facts

[3] In October 2021, Robinson, represented by Attorney Gurulé, filed a 29-page change of judge motion.⁵ At the beginning of his motion, Robinson alleged as follows:

There is an epidemic in Elkhart, Indiana where innocent people are wrongfully convicted as a result of systemic police misconduct, false and fabricated testimony, undisclosed promises of consideration to witnesses, faulty forensic evidence, and the widespread failure to disclose material exculpatory and impeachment evidence. These wrongful convictions are the byproduct of a culture of misconduct at the [Elkhart County Prosecutors Office] and [the Elkhart Police Department] that has spanned decades. Tragically, these unjust convictions often take years to unravel, leaving innocent men and women to languish in prison for crimes they did not commit.

(App. Vol. 9 at 150).

[4] In addition, Robinson specifically argued that the post-conviction court should grant his change of judge motion because the post-conviction court judge had been a deputy prosecutor in the Elkhart County Prosecutor's Office from 1998 until 2002. Robinson further argued that the post-conviction court should grant his motion for a change of judge because the post-conviction court's order in a prior unrelated case involving Andrew Royer ("Royer") had shown that the post-conviction court judge had "already prejudged allegations identical to Mr. Robinson's to be ‘defamatory’ and false, based not on evidence, but the Court's own extrajudicial prejudices and beliefs." (App. Vol. 9 at 164). Robinson also argued that because the post-conviction court had ultimately granted Royer's motion for a change of judge, the post-conviction court should grant Robinson's motion for a change of judge as well.

[5] At this point, for a better understanding of Robinson's argument and the post-conviction court's response to this argument in its order denying Robinson's motion for a change of judge, we find it helpful to review the facts and history of Royer's case. A jury convicted Royer of murdering Helen Sailor ("Sailor") in 2005. In 2006, this Court affirmed Royer's conviction. Royer v. State , No. 20A03-0601-CR-14, 2006 WL 1634766 (Ind. Ct. App. May 31, 2006). In 2007, Royer filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. This Court affirmed the denial. Royer v. State , No. 20A04-1106-PC-325, 2011 WL 6595351 (Ind. Ct. App. Dec. 20, 2011).

[6] A few years later, in June 2013, Royer, represented by Attorney Elliot Slosar ("Attorney Slosar"), filed a motion for relief from judgment pursuant to Indiana Trial Rule 60(B).⁶ Immediately after filing this motion, Attorney Slosar and Royer's family members gathered in front of the prosecutor's office for a press conference. During the press conference, Attorney Slosar stated that there was a " ‘systemic failure’ and an ‘epidemic’ in Elkhart County where people [were] wrongfully convicted because of police corruption, uninspiring defense counsel and an overzealous prosecutor." (App. Vol. 3 at 57). Attorney Slosar also stated that "these factors contributed to Andrew Royer being convicted of a murder that he is absolutely innocent of." (App. Vol. 3 at 57). In addition, Attorney Slosar stated that "we have proven that [Royer's] conviction was an absolute fraud and the conviction was based on intentional misconduct." (App. Vol. 3 at 57). Attorney Slosar further referred to the pending Trial Rule 60(B) motion as an appeal and released videotapes of witnesses that would be testifying at the hearing on Royer's motion.

[7] Following the press conference, the State filed a motion for an emergency hearing and a request for an injunction. In support of its motion, the State attached two newspaper articles from the South Bend Tribune. The headline for one of the articles, which is dated June 13, 2018, is "Mentally disabled man says shoddy policing, false statements led to Elkhart murder conviction." (No. 20D03-0309-MR-155, Chronological Case Summary, June 19, 2018 entry). The headline for the other article, which is dated June 14, 2018, is "Attorney of Andrew Royer blasts Elkhart police for ‘miscarriage of justice.’ " (No. 20D03-0309-MR-155, Chronological Case Summary, June 19, 2018 entry). Royer filed a response to the State's motion. Following a hearing, the trial court judge in Royer's case, who is the post-conviction court judge in Robinson's case, issued an order that provides, in relevant part, as follows:

9. Additionally, Slosar contends that he made no statements that violate Ind. Professional Conduct Rule 3.6, as only information contained in the public record was stated at the press conference, along with matters he has a constitutional right to say on behalf of Royer. The Court carefully reviewed the State's Motion, as well as Royer's Response, along with the various attachments referencing news articles about the conference. Particularly troubling to the Court were Slosar's statements at the subject press conference characterizing " ‘systemic failure’ and an ‘epidemic’ in Elkhart County where people are wrongfully convicted because of police corruption, uninspiring defense counsel and an overzealous prosecutor." Slosar went on to say that "these factors contributed to Andrew Royer being wrongfully convicted of a murder that he is absolutely innocent of." Slosar also stated that "we have proven that his conviction was an absolute fraud and the conviction was based on intentional misconduct." Additionally, videos of proposed witnesses were released and Slosar inaccurately referred to the pending Trial Rule 60(B) Motion filed in this Court as an "appeal."

10. The Indiana Supreme Court in In re: Litz [,] 721 N.E.2d 258 (Ind. 1999) addressed behavior such as [Slosar's] and held that Litz's publication of a letter in several local newspapers which state[d] his client committed no crime, criticized the prosecutor's decision to retry the case, and mentioned his client had passed a lie detector test constituted a violation of Ind. Professional Conduct Rule 3.6(a).^[7]

11. In sum, Slosar's comments and statements are beyond the scope of the exceptions stated in Ind. Professional Conduct Rule 3.6(b) as to what a lawyer who is participating in litigation of a matter may state.^[8] The statements are highly inflammatory, defamatory, inaccurately state the law as it exists at this time with respect to Royer's conviction, and draw legal conclusions about matters not yet adjudicated. Slosar's actions go beyond simply summarizing evidence that is a matter of public record. Further, any alleged "new evidence" must be heard in accordance with the judicial process before any legal conclusions may be reached. Essentially, the extrajudicial statements made by Slosar at the public press conference, and which were reported in the media, do exactly what the Rule prohibits - forming public opinion that has a substantial likelihood of materially prejudicing the adjudicative proceedings pending in this Court.

* * * * *

13. Here, the Court finds that the statements Slosar made at the public press conference held on June 13, 2018, violated Ind. Rule of Professional Conduct 3.6(a) in that they were extrajudicial statements that Slosar knew or reasonably should have known would be disseminated by means of public communication and would have a substantial likelihood of prejudicing the adjudicative proceeding that is pending in this matter, specifically, his Trial Rule 60(B) Motion.

14. While the Court clearly recognizes Slosar's First Amendment right to free expression, as noted by the Indiana Supreme Court in the Commentary to Ind. Professional Rule of Conduct 3.6,^[9] that right must be balanced with the right to fair and impartial legal proceedings, which may entail some restriction of the information that may be disseminated about a party prior to and during those proceedings. Ind. Professional Rule of Conduct 3.6 does not curtail free speech except to the extent necessary to protect the corresponding right to fair proceedings. This is the basis upon [which] the Court is acting.

15. For all

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