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.
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.”