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Former PCJ inmate may testify that McCowan admitted Amand Bach murder, but defense raises ethical issues

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By KEVIN NEVERS

A former inmate of the Porter County Jail—and now of the Westville Correctional Facility (WCF)—will be allowed to testify at trial that accused murderer Dustin McCowan “bragged” to him, while the two were both incarcerated at PCJ, that he shot Amanda Bach.

On Wednesday, Porter Superior Court Judge Bill Alexa approved the inclusion on the state’s witness list of Daniel A. Grunhard, currently serving six years at WCF after he failed to complete Drug Court.

Complicating the matter, however, is the fact that Grunhard has been represented by McCowan’s own attorney, John Vouga, and that Vouga fears that he and his firm could potentially be disciplined by the Indiana Supreme Court for conflict of interest were he to present “confidential information” at trial about client Grunhard for the purpose of defending client McCowan.

According to a memorandum filed on Jan. 22 by Deputy Prosecuting Attorney Cheryl Polarek, Grunhard first approached the state in the form of two letters mailed from PCJ, the first dated Oct. 18, 2012, the second Oct. 19. At the time Grunhard was awaiting sentencing following his termination from the Drug Court program a month before, on Sept. 10.

The substance of Grunhard’s two letters: “One day Mr. McCowan tell me how he was charged with shooting a girl named Amanda. He bragged about beating the states (sic) case at a trial. He addmited (sic) to me he shot this woman because she ‘crossed’ him and the gun he had was under the seat of his vehicle and he buried it so good nobody would ever find it.”

Polarek, in her memorandum, notes that she and Chief Deputy Prosecuting Attorney Matt Frost met with Grunhard on Nov. 2, when she and Frost informed him that they could not speak with him inasmuch as he was represented by McCowan’s attorney, Vouga.

Then, on Dec. 14, Grunhard was sentenced to six years in prison, after pleading guilty to possession of a narcotic drug, possession of a controlled substance, identity deception, and possession of paraphernalia. Polarek maintains in her memorandum that, with Grunhard’s sentencing, “the representation of Vouga & Associates ends.” Investigators subsequently interviewed Grunhard on Jan. 16.

Grunhard “was made no promises and in no way was forced to talk to the detectives,” Polarek states in her memorandum.

On Wednesday, Alexa ruled that Grunhard may testify but an independent attorney of Vouga’s choosing—unaffiliated with Vouga & Associates—will handle the cross-examination of Grunhard. In the meantime, Alexa pledged to consult with the Indiana Supreme Court’s Disciplinary Committee about Vouga’s misgivings in the matter.

Vouga

The crux of the matter, as Vouga explained it today to the Chesterton Tribune: Vouga’s firm is in possession of “confidential information” about Grunhard which might tend to cast a particular light on any testimony Grunhard might offer at trial.

Vouga’s dilemma: he cannot, as he is ethically bound to do, aggressively defend client McCowan without opening himself to a conflict-of-interest charge in connection with client Grunhard.

“I have practiced for 25 years and it is my No. 1 priority to conduct myself with the greatest ethical behavior,” Vouga told the Tribune.

Vouga hastened to add that he has “a great amount of respect for Judge Alexa’s decision” and appreciates the efforts which Alexa will make to consult with the Supreme Court’s Disciplinary Committee.

But, Vouga said, there are several unanswered questions which he finds troubling. “We have been in contact with the Supreme Court’s Disciplinary Committee and no one there is 100 percent confident that even bringing in a third attorney” will resolve the ethical problem.

“To aggressively defend Dustin McCowan, how do we not provide outside counsel with the information we have?” as Vouga put the issue. “Our firm is the arm and a third counsel would be the hand. The hand can’t be controlled without information from the arm.”

Vouga did note that, with respect to an independent attorney, in Lake County “other felony courts have permitted this type of resolution and apparently to everyone’s satisfaction.”

“But obviously we want to make sure,” Vouga said. In any case, “the Supreme Court Disciplinary Committee has made it clear that, regardless of lower courts’ decisions, the Disciplinary Committee can act independently and find a conflict of interest.”

Posted 1/24/2013