Brett W. Todd - page 6

LEBANON, Ind. (April 23, 2025) – Attorneys for Clinton County Sheriff Richard Kelly and Jail Matron Ashley Kelly were in a Boone County courtroom to provide a status update on the large document drop just days prior to the start of the April 8 trial which resulted in the trial being delayed.

In the April 14 hearing, in answering questions from Boone County Judge Lori Schein, attorney for Mrs. Kelly, Mario Massillamany, shared that Clinton County Prosecutor Anthony Sommer and Clinton County attorney Tom Little were sending emails to the Attorney General office asking for the AG to join the civil case.

Attorney for Sheriff Kelly, Theodore Minch, added that in addition to those emails, new documents show they were actively editing the State Board of Accounts audit report on the Kellys and passing it back-and-forth.

A hearing on sanctions was not set – allowing the attorneys for Little and the Kellys to receive the promised privilege log of the newly received documents and to review the contents.

In an additional matter, Massillamany filed a motion to dismiss count #3 – criminal conversion – against Mrs. Kelly.

Criminal conversion is the act of knowingly or intentionally exerting unauthorized control over someone else’s property.

Massillamany’s argument was based on two documents he entered as exhibits A & B showing that Mrs. Kelly had authorized authority over the commissary funds.

Exhibit A was a 2021 written contract from an oral agreement between Sheriff Kelly and Mrs. Kelly to be the commissary manager at the same pay and duties as previous commissary managers.

Exhibit B was a written contract between Sheriff Jeff Ward and Nancy Ward, his wife, to perform the duties of commissary manager.

Massillamany noted the two agreements were identical but for paragraph 5 of Mrs. Kelly’s contract that made it retroactive to January 1, 2019.

Judge Schein asked special prosecutor Stanley Levco if Mrs. Kelly had a contract in place at the time she was put in place as commissary manager would he have filed conversion charges.

Levco was not the special prosecutor when charges were filed. Levco was appointed to the case in October 2024 after the previous special prosecutor – David Thomas – was elected judge in his home county.

Levco replied, had she had a contract at the time charges were filed – “maybe not. But she didn’t.”

The State filed its charges in 2022.

According to online case entries, the State filed a brief in response to defendant’s motion to drop count #3 on April 16.

Judge Schein took the matter under advisement.

A new trial date was set during the hearing.

Judge Schein informed the parties that the Clinton County courthouse will begin renovations soon and asked if there were objections to selecting a Clinton County jury and having the case in Boone County.

There were no objections and Tuesday, October 14 was selected after conferring with both sides on scheduling conflicts.

FRANKFORT, Ind. (April 7, 2025) – The Special Prosecutors handling the case against Sheriff Richard Kelly and his wife Ashley have dismissed count #4 – “signed under penalties of perjury statements related to their relationship with each other, in violation of the criminal offense of Perjury” – today during a pretrial hearing in the Clinton County courthouse.

The Kellys also filed with the Court to have the case continued after a large document drop – including audio files – were made available to them late last week.

The documents and audios were part of a discovery request that was two years old. And comes after assurances were made to Special Judge Lori Schein – during an in-chamber review, including attorneys representing County Attorney Tom Little – that all documents had been turned over during the August 2024 gathering.

This new data drop is described as a collection of 3,000 documents comprising some 10,000 pages plus audio files. Many of the documents contain redacted sections and a promised privilege log has yet to be turned over to the defense.

Judge Schein stated she was not pleased with granting the continuance noting the amount of time that has been spent to have the trial start this week. Judge Schein noted that balancing an ineffective council argument along with charges that are felonies that carry jail time outweigh continuing the case this week.

Attorney for Ashley Kelly – Mario Massillamany – asked the court to conduct a hearing on sanctions against attorney Tom Little, the Law Firm of Power, Little, Little, Little, and the attorneys that represent Tom Little as to why the delay in complying with the court’s order. Massillamany requested attorney’s fees paid by the Kellys among other items be considered as a remedy.

Judge Schein has set April 14 as a pretrial hearing to determine next steps as well setting a hearing on sanctions.

An additional item that will be discussed on April 14 is the defense motion to drop count #3 – “engaged in a violation of the Criminal Conversion statute (IC 35-43-4-3 (a) by Richard L. Kelly receiving commissary funds through his ownership in Leonne LLC.”

FRANKFORT, Ind. (April 6, 2025) – The three-year-old criminal case involving Sheriff Richard Kelly and his wife, Ashley, is set to begin on Tuesday with selecting six jurors and three alternates.

But first the State and the Kellys will face off in a hearing Monday morning to hear the State’s motion to limit the introduction of evidence in the case according to online court entries.

This is in response to the Kellys having notified the State of their intention to use an affirmative defense – mistake of fact – to the four charges. An affirmative defense places the burden of proof on the defense.

The Kellys each face one count each of the following (all are Felony 6):

1. as public servants knowingly or intentionally had a pecuniary interest in or derived a profit from a contract connected with their governmental entity served by the public servant;

2. engaged in a violation of the criminal Conflict of Interest statute;

3. engaged in a violation of the Criminal Conversion statute (IC 35-43-4-3 (a) by Richard L. Kelly receiving commissary funds through his ownership in Leonne LLC; and

4. signed under penalties of perjury statements related to their relationship with each other, in violation of the criminal offense of Perjury.

Although the court documents are not available, Clinton County Today was in the courtroom for the final pretrial hearing on March 12th when attorneys Theodore Minch and Mario Massillamany representing Sheriff Kelly and Ashley, respectively, were going back and forth with Special Judge Lori Schein.

The defense attorneys were asking for evidence to be allowed that the Kellys relied on attorney Little to perform the required work.

Attorney Massillamany to Judge Schein: “We filed a notice of affirmative defense – mistake of facts. And I think that would go into the arguments of affirmative defense – mistake of fact.”

Judge Schein: “Meaning what?”

Attorney Massillamany: “They relied on Mr. Little to fill-out the conflict waiver on their behalf.”

Later in the hearing, Judge Schein said to attorney Minch: “I’ve seen the emails. It looked like there was a conflict of interest form sent by Mr. Little on behalf of your clients before he took office.”

At the Monday hearing, the Kellys could argue that other county officials have not uploaded conflict of interest forms to the State Board of Accounts website.

Here are examples of missing conflict forms:

County Council President Alan Dunn was awarded a cash rent farming contract to farm the county farm in 2021. Dunn paid the county $325 per acre each for four years. He was able to collect any amounts above the $325 minus expenses. The 136-acres is located behind Parkview Home and the conflict form was presented at a commissioners meeting on February 1, 2021 – yet was never uploaded to the SBOA.

Not until June 26, 2024, was the conflict form uploaded to the SBOA disclosing his monetary interest from the contract.

Commissioners President Jordan Brewer presented not one, but two conflict forms acknowledging his father, Kent Brewer, is sole owner of KB Ditching and as a member of the Clinton County Drainage Board his father had been contracted previously prior to becoming a commissioner and could be selected to do work in the future through a competitive bid process.

The first was during a Commissioners meeting on February 17, 2021, where he stated, “Tom felt it best if we at least had a conflict of interest statement that we filed with the state.” County Attorney Tom Little was not at the meeting.

The second was during a Drainage Board meeting on March 1, 2021, where county attorney Tom Little was present. Attorney Little stated, “Just to be safe we will have it done twice. Once within the Board of Commissioners and again with the Drainage Board.”

Neither of those two forms were uploaded to the SBOA. A “full disclosure statement, contract disclosure requirement” for Commissioner Brewer was uploaded to the SBOA website on October 11, 2024.

With both the Dunn and Brewer conflict forms, it is unknown at this time who is responsible for uploading the document to the SBOA.

FRANKFORT, Ind. (January 15, 2025) – The Indiana Court of Appeals is set to hear oral arguments Thursday in a case that raises critical questions about the scope of prosecutorial immunity. The case, Richard Kelly and Ashley Kelly v. Anthony Sommer, stems from a dispute between the Clinton County Sheriff, Richard Kelly, his wife, Ashley Kelly, and Clinton County Prosecutor, Anthony Sommer.

At the heart of the dispute is a meeting between Sommer and a local journalist, Brett Todd, during which Sommer allegedly provided a fake jail commissary report. The Kellys contend that Sommer acted maliciously and outside the scope of his prosecutorial duties, while Sommer maintains that he is immune from liability for actions taken in his official capacity.

The lower court sided with Sommer, dismissing the Kellys’ claims for defamation and intentional infliction of emotional distress. Now, the Court of Appeals will determine whether the lower court erred in its application of the law.

The Allegations and Lower Court Findings

The Kellys’ Amended Complaint alleges that Sommer initiated a criminal investigation into their operation of the county jail commissary, driven by personal and political motivations. They further claim that Sommer, in a meeting with journalist Brett Todd, knowingly provided Todd with an alleged fake commissary report, falsely stating that the report originated from the Kellys. This report, they allege, was intended to damage their reputation.

Sommer, however, argued that his actions were within the scope of his prosecutorial authority and that he was immune from liability under both common law and the Indiana Tort Claims Act (ITCA).

The lower court, while acknowledging the gravity of the allegations against Sommer, ultimately agreed with his immunity defense. The court granted Sommer’s motion to dismiss, finding that his actions were within the function of the Prosecutor’s Office and therefore protected, regardless of motive.

Significantly, the lower court found the Kellys’ allegations that Sommer provided a falsified document to journalist Brett Todd to be “very disturbing.”

“This is very disturbing to this Court and certainly could expose Defendant to possible criminal prosecution and/or severe disciplinary actions if proven,” wrote Boone County Judge Bruce Petit in April 2024. Nevertheless, the court concluded that, under Indiana law, prosecutorial immunity provides absolute protection even in cases of malicious or corrupt acts.

The Kellys Appeal

The Kellys appealed the lower court’s decision, focusing their arguments on two key points:

1. Sommer admitted to acting outside his prosecutorial function.

The Kellys highlight statements made by Sommer to Todd and WLFI News 18, asserting that these statements demonstrate he was not acting in his official capacity. Specifically, Sommer allegedly told Todd that he did not want to be recorded or quoted in any story, that he did not want to comment on the status of any investigation, and that no such investigation existed in his office.

2. The scope of Sommer’s employment under the ITCA is a question of fact.

The Kellys argue that Sommer’s admissions create a genuine dispute about whether his actions were within the scope of his employment as prosecutor. They contend that this question should be resolved by a jury, not dismissed as a matter of law.

The Kellys further argue that the lower court misapplied the “functional approach” to prosecutorial immunity by finding that Sommer could enjoy immunity while acting in his “personal capacity.” They contend that this conclusion contradicts established Indiana law and would effectively grant prosecutors limitless immunity.

Sommer’s Response

In his response brief, Sommer argues that the lower court correctly determined that he was acting within the scope of his employment as prosecutor. He emphasizes his duty to keep the public informed about investigations and his right to correct misrepresentations in the media. Sommer contends that his statements to Mr. Todd were made in furtherance of this duty.

Sommer also disputes the Kellys’ characterization of his statements to Todd, arguing that he never abandoned his role as prosecutor. He maintains that his statement about not prosecuting the Kellys simply acknowledged the likelihood of a special prosecutor being appointed in such a high-profile case.

Key Questions Before the Court of Appeals

The Court of Appeals will now grapple with several key questions:

Did Sommer’s statements to Todd, in which he disavowed any official investigation, place him outside the scope of his prosecutorial function?

The Kellys argue that these statements, combined with Sommer’s later admission that he was not providing an official statement about any investigation, demonstrate he was acting for personal reasons. Sommer, however, contends that his statements should be viewed in light of his overall duty to inform the public.

Did the lower court err in finding that Sommer could enjoy immunity even while acting in his “personal capacity?”

The Kellys argue that this conclusion contradicts Indiana law and would essentially eliminate any boundaries to prosecutorial immunity. Sommer counters that the lower court correctly applied the “functional approach,” which focuses on the nature of the action rather than the subjective intent of the actor.

Does the Kellys’ claim that Sommer knowingly provided a falsified document create a genuine issue of fact regarding the scope of his employment?

If so, should this question be resolved by a jury rather than through a motion to dismiss?

The outcome of this case could have a significant impact on the limits of prosecutorial immunity in Indiana. A ruling in favor of the Kellys would potentially narrow the scope of immunity, holding prosecutors more accountable for actions taken outside their official duties. A ruling in favor of Sommer, however, would reaffirm the broad protections afforded to prosecutors, even in cases where they are alleged to have acted maliciously or corruptly.

There is no timeline as to when the Court of Appeals will issue a decision after hearing oral arguments.

Note: the author of this article is the journalist referenced in the case.