After hearing oral argument, the district court denied Resnover's habeas petition. Resnover v. Pearson, 754 F. Supp. 1374 (N.D.Ind. 1991). Resnover appealed.
Many courts have specifically observed that threats on the life of a prosecutor from a criminal defendant will not cause a disqualifying interest in the prosecution of a different offense. See, e.g., Millsap v. Super. Ct., 70 Cal.App.4th 196, 82 Cal.Rptr.2d 733, 738 (Ct.App. 1999) (excusing prosecutors from prosecuting solicitation charges of which they were the intended victims and leaving for their discretion whether to sever those charges and continue the prosecution or recuse); Resnover v. Pearson, 754 F.Supp. 1374, 1388-89 (N.D.Ind. 1991) (rejecting the defendant's assertion that the prosecutor should recuse due to a conflict of interest where the prosecutor believed the defendant had threatened his life), aff'd, 965 F.2d 1453 (7th Circ.1992); State v. Boyce, 194 Neb. 538, 233 N.W.2d 912, 913-14 (1975) (holding that the county attorney could prosecute a defendant for kidnapping where the defendant kidnapped a police officer with the intention that the officer lead the defendant to the prosecutor so that the defendant could kill him, reasoning that the crime was not complete and the prosecutor was therefore not an "injured party"); See also Schwartz Veilleux, supra, ยง 13. Even where a defendant threatened to bomb the county courthouse, which included the district attorney's office, the court of appeals of Kansas held that the office's victimization was not sufficiently direct to create a personal interest that would impair any of the prosecutors' obligation to act impartially in prosecuting the defendant for the bomb t
Smith v. Farley, 59 F.3d 659, 664-65 (7th Cir. 1995) (holding that a prosecutor's ambiguous reference to an unknown number of police officers in the courtroom did not intimidate the jury.); Resnover v. Pearson, 754 F.Supp. 1374, 1389 (N.D. Ind. 1991) (finding that the presence of a โlarge numberโ of police officers was not unconstitutional.)).
Thus, the Court of Appeals of Indiana was well within its bounds when it concluded that Indiana's charging scheme was constitutional. See e.g., Mogollan v. Meloy, Nos. 94-3207, 95-1443, 1996 WL 89221, at *2 (7th Cir. Feb. 29, 1996) (noting that Indiana Code ยง 35-34-1-1 is constitutional) ; See also Chatfield v. Richards, 739 F. Supp. 1262 (N.D. Ind. 1990) (noting that Indiana's statutory procedure authorizing the State to file criminal charges by indictment or information does not violate the Fifth Amendment); see also Resnover v. Pearson, 754 F. Supp. 1374 (N.D. Ind. 1991) (explaining that being charged by information pursuant to Indiana Code ยง 35-34-1-1 does not provide a basis to obtain habeas relief). "No matter how a state chooses to charge a criminal defendant, the due process clause requires that a criminal defendant receive 'notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge.'"
These letters are not sufficient to prove actual prejudice by the prosecutor. See Resnover v. Pearson, 754 F.Supp. 1374, 1388-89 (N.D. Ind. 1991) (a criminal defendant cannot cause the recusal of his prosecutor by threatening the prosecutor or having him threatened); see also, Lilly, 983 F.2d at 310 (observing that courts have not found due process violations when a prosecutor is simultaneously representing private clients who are suing the defendant on related matters or when a prosecutor is simultaneously the target of a civil action filed by an associate of the criminal defendant). Nor is an appearance of a conflict of interest sufficient to warrant recusal.
Thus, the petition for writ of habeas corpus is now DENIED. See Resnover v. State, 460 N.E.2d 922 (Ind. 1984), cert. denied, Resnover v. Indiana, 469 U.S. 873 (1984), Resnover v. State, 547 N.E.2d 814 (Ind. 1989) (denying post-conviction relief), cert denied, Resnover v. Indiana, 498 U.S. 881 (1990) Resnover v. Pearson, 754 F. Supp. 1374 (N.D.Ind. 1991) (denying habeas relief), aff'd, 965 F.2d 1453 (7th Cir. 1992), cert. denied, 113 S.Ct. 2935 (1993), and Smith v. State, 465 N.E.2d 1105 (Ind. 1984), Smith v. State, 613 N.E.2d 412 (Ind. 1993) (denying post-conviction relief), cert. denied, Smith v. Indiana, 511 U.S. 1063 (1994), Smith v. Farley, 873 F. Supp. 1199 (N.D.Ind. 1994) (denying habeas relief), aff'd, 590 F.3d 659 (7th Cir. 1995), cert. denied, Smith v. Parke, 516 U.S. 1123 (1996). IT IS SO ORDERED.
The penalty phase often presents enormously difficult professional challenges and choices. Resnover v. State, 460 N.E.2d 922 (Ind. 1984), cert. denied, Resnover v. Indiana, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984), post-conviction relief denied, Resnover v. State, 547 N.E.2d 814 (Ind. 1989), cert. denied, Resnover v. Indiana, 498 U.S. 881, 111 S.Ct. 216, 112 L.Ed.2d 175 (1990), habeas relief denied, Resnover v. Pearson, 754 F. Supp. 1374 (N.D.Ind. 1991), aff'd, 965 F.2d 1453 (7th Cir. 1992), cert. denied sub nom. Resnover v. Carter, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 685 (1993), denial of habeas aff'd, Resnover v. Pearson, 9 F.3d 113 (7th Cir. 1993), cert. denied sub nom.
The final decision at the trial court level is with the presiding and sentencing judge. . . . [T]he prosecutor has `unfettered authority' to charge a person with a capital offense." Resnover v. Pearson, 754 F. Supp. 1374, 1391 (N.D.Ind. 1991) (emphasis in original, quoting Gregg v. Georgia, 428 U.S. 153 (1976) (opinion of Stewart, Powell Stevens, JJ.)), aff'd, 965 F.2d 1453 (7th Cir. 1992). Because law enforcement is "a core executive constitutional function," United States v. Armstrong, 517 U.S. 456, 465 (1996), judicial intrusion into prosecutorial decisions is justified only when the Constitution requires it.
The final decision at the trial court level is with the presiding and sentencing judge. . . . [T]he prosecutor has `unfettered authority' to charge a person with a capital offense." Resnover v. Pearson, 754 F. Supp. 1374, 1391 (N.D.Ind. 1991) (emphasis in original, quoting Gregg v. Georgia, 428 U.S. 153 (1976) (opinion of Stewart, Powell Stevens, JJ.)), aff'd, 965 F.2d 1453 (7th Cir. 1992). Because law enforcement is "a core executive constitutional function," United States v. Armstrong, 517 U.S. 456, 465 (1996), judicial intrusion into prosecutorial decisions is justified only when the Constitution requires it.
However, the presence of uniformed police officers in the courtroom is not by itself so inherently prejudicial as to deny a defendant of his constitutional right to a fair trial. See Holbrook v. Flynn, 475 U.S. 560 (1986) (four state troopers in front row of spectator section as supplement to regular courtroom security not unconstitutional); Smith v. Farley, 59 F.3d 659, 664-65 (7th Cir. 1995) (prosecutor's ambiguous reference to unknown number of police officers in courtroom did not intimidate jury); Resnover v. Pearson, 754 F. Supp. 1374, 1389 (N.D.Ind. 1991) (presence of "large number" of police officers not unconstitutional); but cf. Woods v. Dugger, 923 F.2d 1454 (11th Cir. 1991) (presence of uniformed prison guards at trial of accused murderer of prison guard deprived defendant of fair trial based on rural nature of community; importance of prison in local economy; amount of pretrial publicity; community activism of victim's sister; composition of jury; and objections by defense counsel).