GOUDY v. CUMMINGS et al
Filing
380
ORDER denying 344 Motion to Withdraw Attorney Appearance. See Order for details. Signed by Magistrate Judge Tim A. Baker on 10/3/2019. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WALTER GOUDY,
)
)
Plaintiff,
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)
v.
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)
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RODNEY J. CUMMINGS in his individual
capacities as an Anderson police detective and as a )
)
Madison County prosecutor,
STEVE NAPIER in his individual capacity as an )
Anderson police detective,
)
CITY OF ANDERSON an Indiana municipality, )
THE STATE OF INDIANA (for indemnification )
purposes only),
)
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Defendants.
)
)
No. 1:12-cv-00161-SEB-TAB
ORDER ON MOTION TO WITHDRAW
Indiana Attorney General Curtis T. Hill, Jr. and his deputies have filed a motion to
withdraw their representation of Defendant Rodney Cummings. [Filing No. 344.] While
motions to withdraw are usually uneventful, the instant motion has unleashed a small firestorm
of opposition. [Filing Nos. 346, 347, 349.] A brief overview of the factual and procedural
background of this case helps place the motion and its opposition in proper context.
A jury convicted Plaintiff Walter Goudy of murder and attempted murder, but the
Seventh Circuit Court of Appeals found that Brady1 violations entitled Goudy to a writ of habeas
corpus and a new trial. Goudy v. Basinger, 604 F.3d 394 (7th Cir. 2010). In February 2012,
Goudy brought the present lawsuit against Defendants Rodney Cummings and Steve Napier,
1
Brady v. Maryland, 373 U.S. 83 (1963).
who served as police detectives that investigated the underlying crimes. Cummings also later
served as the county prosecutor. The lawsuit alleges that, in various ways, Defendants failed to
disclose exculpatory evidence in violation of Goudy’s due process rights.
Attorney General Hill, through his Deputy Attorneys General, entered his appearance on
March 28, 2012, and March 30, 2012, for Defendant Rodney Cummings, in his capacity as
Madison County Prosecutor, and for the State of Indiana (the “State Defendants”). [Filing Nos.
7, 8.]2 Defense counsel then proceeded to litigate this case for many years, with varying results.
Although all Defendants sought and were granted summary judgment [Filing No. 312], the Court
also sanctioned defense counsel $50,000 plus costs for discovery misconduct. [Filing Nos. 260,
315.] However, on May 1, 2019, the Seventh Circuit Court of Appeals wiped away Defendants’
success on the merits, reversing this Court’s grant of summary judgment and remanding this case
for trial. Goudy v. Cummings, 922 F.3d 834, 844 (7th Cir 2019). Of particular note, the Seventh
Circuit concluded Goudy has put forth evidence that would permit a trier of fact to conclude that
Cummings intentionally concealed an exculpatory video for 14 months. Id. at 839. On June 27,
2019, the Court set this matter for trial on November 12, 2019. [Filing No. 333.]
More than two months after this Court set this trial date and nearly four months after the
Seventh Circuit reversed the summary judgment ruling, Hill and his Deputy Attorneys General
filed the motion to withdraw their appearances for the State Defendants that now pends before
this Court. The original motion is thin on analysis, but in essence argues: (1) the only issue in
this case on remand is whether Defendants caused Goudy to receive an unfair trial in violation of
his due process rights; (2) Cummings’s involvement in this case has nothing to do with his
2
Another set of attorneys represents Cummings and Napier in their capacities as police
detectives with the City of Anderson, as well as the City of Anderson (the “City Defendants”).
[Filing Nos. 5, 6.]
2
prosecutorial responsibilities but rather arose only as a result of his capacity as a police detective
for Anderson; and (3) therefore representation by the Attorney General is “unnecessary and
superfluous.” [Filing No. 344, at ECF p. 2.]
As a preliminary matter, the timing of the motion to withdraw strikes the Court as odd.
Such motions typically are linked to some development in the case, such as a breakdown in the
relationship between attorney and client, a client’s inability to pay counsel for their work, or a
newly arisen conflict of interest. No such developments are at issue here. Goudy’s response to
the motion to withdraw likewise questions the timing. As Goudy’s response puts it, “more than
three months after the remand order and almost 4 months after the ruling” defense counsel
“suddenly realized that they were apparently victorious on appeal, and thus there would be no
reason for them to continue to represent Defendant Cummings in the matter.” [Filing No. 347, at
ECF p. 3.]
The City Defendants point out, quite correctly in the Court’s view, that the Attorney
General is mistaken that the Seventh Circuit somehow ruled Cummings could only be sued for
his actions while employed as a police detective, as opposed to his role as a prosecutor.3 What
the Seventh Circuit said is this:
Cummings’s actions (removing the video and hanging onto it for 14 months) had
nothing to do with his prosecutorial responsibilities. He removed and retained the
video in his capacity as a police detective. Any entitlement to immunity that
Cummings enjoys for actions taken in his prosecutorial capacity after April 7,
1995, is beside the point.
Id. at 840. The Court agrees with the City Defendants’ argument that the Seventh Circuit’s
statement in this regard reflects that Cummings’s alleged conduct as a police detective was
3
The State of Indiana is potentially responsible for acts Cummings committed in his role as
prosecutor, whereas the City of Anderson is potentially responsible for Cummings’s conduct as a
police detective.
3
investigatory, and therefore not prosecutorial or protected by absolute immunity. [Filing No.
346, at ECF p. 4.] Driving home this point, Goudy further argues that although Cummings was
employed as a prosecutor during much of his alleged misconduct, he was wearing his
“investigatory hat” during this time, which could subject him to liability. [Filing No. 347, at
ECF p. 4.]
The City Defendants further note that if a jury finds Cummings is liable for the removal
or retention of the video during some time period while he was prosecutor, the City of Anderson
cannot be liable for this conduct, since at the time of those actions Cummings would have been
acting an agent of the State, not the City. [Filing No. 346, at ECF p. 3.] This argument further
supports denying the motion to withdraw.
The burden is on the Attorney General to show a valid and compelling reason to grant the
motion to withdraw. Woodall v. Drake Hotel, Inc., 913 F.2d 447, 449 (7th Cir. 1990).4 Not only
do the City Defendants oppose this motion to withdraw [Filing No. 346], the proposed
withdrawal could well create a conflict of interest for Cummings’s counsel. Counsel for the City
Defendants inevitably will be attempting to convince the jury that, if there is any liability here, it
should fall at the feet of Prosecutor Cummings (and rest with the State of Indiana) as opposed to
Detective Cummings (which would implicate the City of Anderson). This potential conflict and
resulting prejudice undercuts the State Defendants’ ability to set forth a valid and compelling
reason for withdrawal.
4
Goudy makes this argument in his motion for leave to file a sur-reply brief in opposition to the
motion to withdraw. [Filing No. 349.] Although captioned as a motion for leave to file a surreply, the motion itself is the sur-reply. In any event, the Court grants Goudy’s motion.
4
The City Defendants also assert an indemnification claim against the State in further
support of their opposition to the motion to withdraw. [Filing No. 346, at ECF p. 2.] The Court
need not wade into this argument given that the Court already has found the motion to withdraw
should be denied.
In summary, although the Attorney General attempts to link the motion to withdraw to
the Seventh Circuit’s decision from earlier this year, this is a weak link. As Goudy puts it, “The
decision of the Appellate Court is irrelevant to the instant motion to withdraw. Movants have
simply raised this issue now, at the last minute, for reasons that are unclear.” [Filing No. 349, at
ECF p. 4.] Perhaps the timing is not altogether unclear. The litigation timeline shows that after
a long and bruising battle, trial is finally near. The Court will not acquiesce in the Attorney
General’s 11th-hour attempt to leave the fray. For these reasons, the motion to withdraw [Filing
No. 344] is denied.
IT IS SO ORDERED.
Date: 10/3/2019
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution:
Uma Bansal
THE BLAKE HOROWITZ LAW FIRM, LTD.
umadevi@gmail.com
Betsy M. DeNardi
OFFICE OF THE ATTORNEY GENERAL
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Betsy.Isenberg@atg.in.gov
Richard Dvorak
DVORAK LAW OFFICES LLC
richard_dvorak@civilrightsdefenders.com
Bryan Findley
INDIANA ATTORNEY GENERAL
bryan.findley@atg.in.gov
Colin E. Flora
PAVLACK LAW, LLC
Colin@PavlackLawFirm.com
Blake Wolfe Horwitz
THE BLAKE HORWITZ LAW FIRM
bhorwitz@bhlfattorneys.com
Amy Stewart Johnson
FROST BROWN TODD LLC
asjohnson@fbtlaw.com
Joshua Robert Lowry
INDIANA ATTORNEY GENERAL
joshua.lowry@atg.in.gov
Anthony W. Overholt
FROST BROWN TODD LLC
aoverholt@fbtlaw.com
Eric S. Pavlack
PAVLACK LAW, LLC
eric@pavlacklawfirm.com
Jeffrey Segall
THE BLAKE HOROWITZ LAW FIRM, LTD.
jeffsgll@gmail.com
Alexander Phillip Will
FROST BROWN TODD LLC
awill@fbtlaw.com
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