Court-appointed lawyers for a man facing the death penalty will challenge an Allen County judge's decision last week to remove a private defense attorney from the case.
Michelle Kraus said Wednesday she or public defender Robert Gevers will file an interlocutory appeal – one that is allowed while the case is ongoing – asking appellate court judges to decide whether Superior Court Judge Fran Gull's removal of Nikos Nakos was proper.
Kraus and Gevers were assigned to represent Marcus Dansby after Gull's ruling Friday. Dansby, 22, is charged with killing four people – including his unborn child – in 2016.
Gull ordered Nakos off the case, writing in court documents filed last week that “he is not qualified to provide the high quality representation required by the 6th Amendment to the United States Constitution.”
She said in a hearing Friday that Nakos has not participated in special training for lawyers in capital cases. The dozens of other cases he is handling in state and federal court could affect his ability to effectively represent Dansby, Gull said.
Nakos counters that rules for lawyers in death penalty cases cited by Gull apply only to court-appointed attorneys.
He is right, according to the state's Rules of Criminal Procedure and Norman Lefstein, an expert on death penalty representation who is a law professor and dean emeritus at Indiana University's Robert H. McKinney School of Law.
But, Lefstein said, it is up to the judge to decide whether lawyers are qualified to serve their clients in such cases.
“If he is a retained lawyer, these do not apply,” said Lefstein, who has authored papers on death penalty representation and served for 17 years as chairman of the Indiana Public Defender Commission.
“But the judge does have discretion.”
The rules include requirements that appointed attorneys in capital cases have at least 12 hours of training from the commission. Lawyers' workloads must be managed “to assure that counsel can direct sufficient attention to the defense of a capital case,” the criminal procedure rules state.
The appeal must be filed within 30 days of Gull's ruling, Kraus said.
Interlocutory appeals are relatively rare and are sometimes filed in criminal cases when questions arise over suppression of evidence, said Larry Landis, executive director of the Indiana Public Defenders Council. The council is separate from the commission and is a state agency, made up of public defenders, that helps coordinate duties and provides research for attorneys.
Dansby was charged in September 2016 with killing Traeven Harris, 18, Consuela Arrington, 37, Dajahiona Arrington, 18, and her unborn child, which was later determined to be his. The killings happened in a home on Holton Avenue.
Prosecutors sought the death penalty in January 2017.
Nakos maintains he is qualified to handle the case and has asked in court documents to remain a member of the defense team. He said Tuesday he has known Dansby and his family for “many, many years” and wants to help them and defense attorneys.
“I'd be willing to assist the public defenders in any possible way, and I've expressed that to them,” Nakos said.
Kraus declined to comment on whether Nakos might re-join the defense.
Paperwork had not been filed with the Indiana Court of Appeals as of Wednesday afternoon.