CARMEL, Ind. (WISH) - The threat of disciplinary action is being raised as a possibility in the Carmel bully-assault case against the attorney for the victim.
In Hamilton Superior Court Monday, Judge William Hughes told attorney Robert Turner he should have never released details of an investigation by the state.
The Department of Child Services report confirmed what Turner had said all along: that his client, a 14-year-old freshman on the Carmel basketball team, was physically and sexually violated by four seniors.
Turner has said repeatedly he released the report because others had said no evidence showed the crimes were sexual.
After the release of the DCS report, one attorney for the four suspects asked for a gag order.
Judge Hughes issued that a few weeks ago but it was unclear if it would apply to Turner.
The judge says it applies to any attorney representing a victim in the criminal case. Turner has said repeatedly he doesn't represent the victim in the criminal case and that is the prosecutor’s job. He plans to file a civil lawsuit against Carmel Clay Schools.
The state report will likely never make it as evidence in the trial because it can only be admitted by the defense attorneys for the four seniors.
The attorneys a few weeks ago in court said they do not plan to enter it into evidence. The prosecutor can’t either.
Why? IU law professor Henry Karlson says it's technically hearsay.
On the potential discipline against Turner Karlson says:
"If Mr. Turner were a prosecutor, that would have been an ethical violation. He has full first amendment rights in this. A prosecutor can't hurt a defendant's right to a fair trial, but I know of no case that says an attorney can't prejudice his victim's right to a fair trial. The judge is confusing this with a prosecutor."
Meanwhile, IU Law Professor Joel Schumm tells I-Team 8:
“Criminal defendants have a constitutional right to confront and cross-examine witnesses against them. To secure a conviction the State can't simply call a police officer or other witness to say what they heard someone else say. That would be hearsay.
Although hearsay is usually not admissible, court rules provide for some exceptions. The general idea behind the exceptions is that some hearsay is otherwise trustworthy and therefore can be admitted.
One of those exceptions is for "public records and reports."
The rule does not allow all public reports, though. It specifically excepts "factual findings offered by the government in criminal cases" and "factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case."
The state can certainly call any of the witnesses that DCS interviewed, though, and get the same information before a jury in the criminal case. The defense lawyers, though, would be able to cross-examine the witness.
Turner plans to ask the Civil Rights Division of the U.S Department of Justice to investigate how the case was handled, including how evidence was presented to the grand jury.
He has been critical that charges were only misdemeanor when a state investigation substantiated criminal deviate conduct which would have been felony charges.
The judge will decide on a potential change of venue request later this week.