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A request to appoint a special prosecutor in the case of embattled Hope Town Marshal Randy Bailey has been denied.
Bailey, 49, was accused of making untrue accusations that led to the arrest of Hope resident Anthony Paul. Bailey was charged Aug. 19 with official misconduct, a Class D felony; and false informing, a Class B misdemeanor.
Bailey’s attorney, Thomas Barr, cited multiple reasons in court this week why he thought Bartholomew County Prosecutor Bill Nash and Deputy Prosecutor Greg Long should step aside in favor of a special prosecutor, claiming they had violated rules of a professional code of conduct.
The Nashville attorney’s arguments centered on interviews of Bailey on May 6 and May 8 in a conference room of the prosecutor’s office. Video and audio surveillance equipment was used to record the conversations between Bailey and Long, while Nash and Bartholomew County Sheriff Mark Gorbett listened in from Nash’s office.
During both conversations, Bailey thought he was talking to Long in an official capacity to discuss preparations for Paul’s upcoming trial, Barr said.
Describing the interviews as “acts of deception,” Barr said Bailey had a right to be told the true reason why he was there, made aware of the recordings, informed of his right not to incriminate himself and be given the opportunity to have an attorney present.
Upcoming court hearings scheduled in the Randy Bailey case:
Nov. 18: Pre-trial conference.
Dec. 2: Change-of-plea hearing
Dec. 17: Trial date
“It’s clear that what was being done here is to investigate possible criminal conduct on the part of Chief Bailey under the guise of trial preparation,” Barr told the judge. “My client believed he was in a confidential environment as a police officer speaking to a prosecuting attorney. He said things that wouldn’t have been said ... if Bailey had known what was happening.”
One of Bailey’s statements to Long was that he would have shot Paul if he had a gun when the Hope man came to the marshal’s home near Schaefer Lake in May 2012.
After Bailey and Paul exchanged words that morning in regard to a previous argument concerning a child-custody issue, Bailey told Gorbett, his deputies and the Indiana State Police that Paul had threatened him and refused the marshal’s demand that he leave his property, according to material in a probable-cause affidavit.
But Bailey’s allegations unraveled after a digital audio recording surfaced of the actual conversation. Charges of intimidation and criminal trespassing were dropped against Paul the same day Bailey was taken into custody.
Since both Nash and Long played a role in the investigation during the May interviews, both will be essential witnesses at Bailey’s Dec. 17 trial and therefore could not simultaneously prosecute his client, Barr said.
Nash said that since two other people, including Gorbett, also participated in the interviews, neither he nor Long should be considered essential witnesses.
Barr also argued that by having deputy prosecutors testify at Bailey’s trial, they would face “divided loyalties” between telling the truth under oath and performing their jobs and pleasing Nash, their boss.
Nash said that a conflict of interest is legally defined as circumstances that would create divided loyalties between a prosecutor’s duties and personal interests.
Nash said that if Bailey had been elected town marshal, rather than appointed by the town council, state statutes would require him to request a special prosecutor.
At the hearing, Nash maintained that Barr did not present sufficient evidence to support his argument for a special prosecutor under Indiana statutes.
Bartholomew Circuit Judge Stephen Heimann asked Barr three times to cite specific violations of rights before he rejected the request that a special prosecutor was needed.
The Hope Town Council voted Sept. 9 to place Bailey on unpaid administrative leave and delay a decision on his future employment until his case is resolved in the court system.
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