DeLaney Versus Mendenhall

The story of State Rep. Ed DeLaney (D-Indianapolis) being badly beaten after meeting what he thought was a prospective law client at a remote location in Carmel on Saturday just keeps getting more bizarre. Tales of the Russian mafia and reality TV shows has been added to the mix to spice up this story. We're now told that revenge over a 26-year-old case involving the attacker's father was the motivation for what happened this past weekend by none other than the attacker himself.

As we now know, DeLaney's attacker, 38-year-old Augustus ("Gus") Mendenhall, is a recent graduate of the IU School of Law-Indianapolis who was admitted to practice law in 2008. Mendenhall's father, Burke, owned a property near Lafayette Square Mall that he leased to a tenant in 1983 that operated an adult bookstore there. This didn't sit well with the mall's owners, DeBartolo Group, which was represented by Ed DeLaney, who was a partner at Barnes & Thornburg at the time. Former Marion Co. Prosecutor Steve Goldsmith, using Indiana's civil RICO statute, charged the business owner with selling obscene materials and successfully shut down the business, seized its contents, along with denying possession of the property to Mendenhall. Coincidentally, DeLaney's wife, Ann, headed up the sex crimes unit as a deputy prosecutor in Goldsmith's office at the time. A long-drawn out court battle ended when the U.S. Supreme ruled that Goldsmith's actions constituted a prior restraint on the business in violation of the First Amendment. Mendenhall filed a civil lawsuit against the prosecutor, but a court later dismissed it, holding that the prosecutor was immune from civil liability.

A law school friend of Mendenhall's tells me he thought very highly of him, saying the whole things stumps him. The friend describes him as being a "peacemaker" with liberal political views. Another high school acquaintance of his at Carmel High School, suggested he struck him as being a "little off." Mendenhall interned in the Marion Co. Prosecutor's Office during law school and spent a summer in China as part of a law-school sponsored study program in 2007. Mendenhall later split with his wife, but his friends believed the split was amicable. Mendenhall spent the last year in Miami working as a legal consultant for a reality TV show. In court today, Mendenhall requested the services of a public defender, indicating that he had not been paid for all of his services in Miami. Mendenhall had just recently returned to the Indianapolis area and did not appear to have a permanent residence, although he identified an Avon address to the court as where he had been living.

Ann DeLaney told the media over the weekend that her husband had been lured to the remote Carmel location under false pretenses. Mendenhall confirmed this today in a sit-down interview with reporters at the Hamilton Co. jail. Mendenhall calmly told reporters, however, that he never intended to kill DeLaney, only to scare him. The circumstances of the meeting are potentially damaging to DeLaney. Mendenhall lured DeLaney under the guise of representing a Russian business interest that desired to acquire and develop property and wanted DeLaney's assistance. Mendenhall claims he told DeLaney the business was tied to the Russian mafia and needed the real estate investment to launder money. The Saturday encounter was the two's first meeting. DeLaney is considered an expert on Russian matters. From his days as a former Naval intelligence officer during the 1960s, he can speak Russian fluently. "Thanks to a stint in spy school in the 1960s, courtesy of the US Navy, Ed is fluent in Russian," DeLaney acquaintance John Clark blogged at IndyBuzz a couple of years ago. "So as Ed rose to prominence as one of the top corporate attorneys in the Midwest and a leader in the Dem party of Indiana, he also carried out extensive business in the USSR," Clark said.

Mendenhall, who had his bail set at $3 million today by a Hamilton County magistrate due to a his perceived risk of flight, complained to reporters today that DeLaney had used his "power and influence" 26 years ago to destroy his father. "He did a great injustice to my family," Mendenhall told reporters. He says he only wanted to scare DeLaney so he would never do something like that again. "He grabbed the gun and things went out of control," Mendenhall said. "It was never my intent to do him physical harm." DeLaney claims Mendenhall pulled a handgun on him but that it jammed when he attempted to fire it at DeLaney. Mendenhall denies that he tried to shoot DeLaney. The fight ensued after DeLaney grabbed his gun Mendenhall claims. The former Air Force veteran inflicted serious but not life-threatening injuries to DeLaney. There is no indication that Mendenhall used a knife he also had on him to injure DeLaney. Nonetheless, DeLaney suffered several broken ribs and will have to have surgery to repair broken bones around his eye socket.

Luck was definitely on DeLaney's side during his violent encounter with Mendenhall. A former secretary of his old law firm happened by with her husband during a walk near the remote area where DeLaney's car was parked. She immediately recognized her former office colleague and noticed his odd behavior with finger gestures and eye winking during their brief conversation. Concerned that something was amiss, the secretary notified police, who quickly arrived to find Mendenhall on top of DeLaney on the ground beating him about the head. Mendenhall attempted to flee but was quickly apprehended by Carmel police.

Many legal observers would agree that Goldsmith's handling of this case was done so in a manner that raises abuse of prosecutorial discretion concerns and constituted overreaching. Presumably, Mendenhall believes DeLaney used his political influence to aid his client in closing down a business through governmental action, and that's why he is directing his anger at him and not Goldsmith. The fact that DeLaney's wife worked in Goldsmith's office may have heightened his belief. I also wonder if Mendenhall may not have had an opportunity to peruse the old case file while he was interning in the prosecutor's office. Perhaps he uncovered old correspondence in the case file that confirmed his belief that DeLaney had used "power and influence" to get the desired outcome for his client. Former U.S. Supreme Court Justice Byron White wrote a 1989 decision finding Goldsmith's actions violated the First Amendment as a prior restrain on speech. White explains his holding in Fort Wayne Books v. Indiana:

The fact that respondent's motion for seizure was couched as one under the Indiana RICO law -- instead of being brought under the substantive obscenity statute -- is unavailing. As far back as the decision in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 720-721 (1931), this Court has recognized that the way in which a restraint on speech is "characterized" under state law is of little consequence. See also Schad v. Mount Ephraim, 452 U.S. 61, 67-68 (1981); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-555 (1975). For example, in Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (per curiam), we struck down a prior restraint placed on the exhibitions of films under a Texas "public nuisance" statute, finding that its failure to comply with our prior case law in this area was a fatal defect. Cf. also Arcara v. Cloud Books, Inc., 478 U.S., at 708 (O'Connor, J., concurring) (noting that if a "city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books . . . the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review"). While we accept the Indiana Supreme Court's finding that Indiana's RICO law is not "pretextual" as applied to obscenity offenses, it is true that the State cannot escape the constitutional safeguards of our prior cases by merely recategorizing a pattern of obscenity violations as "racketeering."

At least where the RICO violation claimed is a pattern of racketeering that can be established only by rebutting the presumption that expressive materials are protected by the First Amendment,*fn12 that presumption is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding. Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order. See App. 87; Record 601-627. Yet it remained to be proved whether the seizure was actually warranted under the Indiana CRRA and RICO statutes. If we are to maintain the regard for First Amendment values expressed in our prior decisions dealing with interrupting the flow of expressive materials, the judgment of the Indiana Court must be reversed.

The 1989 decision was of little consequence to Mendenhall's father, who was unsuccessful in his efforts to recover damages for his civil rights violations in a civil lawsuit. He did get his building back the government seized. Mendenhall claims the cost of the legal actions financially destroyed his father. Mendenhall's story may resonate with a sympathetic jury. He's going to need that, though, to avoid a long jail sentence. He essentially admitted to committing a crime today to reporters, although he will obviously contest the more serious charge of attempted murder.