Molter, J.
The State charged Richard Allen with two counts of murder. Because he couldn’t afford an attorney, the trial court appointed public defenders Andrew Baldwin and Brad Rozzi to represent him. But after about a year, the special judge presiding over the case became concerned they were not representing Allen effectively. So she disqualified them over Allen’s objection, replaced them with two new public defenders, and continued Allen’s trial for at least nine months so that his new trial attorneys would have enough time to prepare.
Allen then retained two appellate attorneys who filed a Verified Petition for Writ of Mandamus in our Court requesting that we mandate: (1) Baldwin and Rozzi’s reinstatement as court‐appointed counsel; (2) that Allen’s criminal trial begin within seventy days after we issue the writ; and (3) that a new special judge replace the current special judge. The special judge and the Attorney General both opposed the petition, and we held an oral argument. After considering all parties’ excellent written and oral submissions, we granted Allen’s request to reinstate Baldwin and Rozzi but denied his other two requests in a short order with this opinion to follow.
Here, we explain our reasons for those three decisions. In short, we reinstated Baldwin and Rozzi as Allen’s court‐appointed counsel because the trial court did not find that their disqualification was a necessary last resort after weighing the prejudice to Allen. We denied Allen’s request for a trial within seventy days because he did not make that request in the trial court. And we denied Allen’s request to replace the special judge because he did not overcome our presumption of impartiality by identifying facts showing clearly that the special judge is biased or prejudiced.
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- Allen’s request to reinstate his original court‐ appointed counsel presents extraordinary circumstances warranting relief.
Allen argues the trial court exceeded its authority by disqualifying his original court‐appointed counsel because disqualification was unwarranted and significantly prejudices both his defense and his opportunity for a speedy trial. The State and the special judge respond that this original action is not the proper procedural vehicle to evaluate Allen’s claim, and even if it was, the special judge was within her authority to disqualify counsel because she was rightly concerned that they were not fulfilling Allen’s constitutional right to effective legal assistance.
We agree with Allen. Our Court has repeatedly reviewed attorney disqualification issues through original actions, and we do so here because Allen’s petition presents the sort of extraordinary circumstances for which there is not an adequate appellate remedy that our Original Action Rules require.
A. We may review an attorney disqualification decision through an original action.
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As in those prior cases, reviewing the trial court’s disqualification decision here is appropriate through an original action. That is because this case presents extraordinary circumstances where denying a writ will result in substantial injustice, and Allen’s petition is not a substitute for an adequate appellate remedy. We reach that conclusion for a few related reasons.
For starters, disqualifying Allen’s counsel delayed his trial by at least nine months, and the trial court has already concluded that Allen’s pretrial confinement presents extraordinary challenges. Normally, criminal defendants who must be confined while they await trial are detained in the county jail with other defendants who are awaiting trial or who have been convicted and received shorter sentences. But here, for Allen’s safety, the original judge transferred Allen to the Department of Correction, which runs our state’s prisons—facilities that generally detain inmates only after they are convicted and serving longer sentences for more serious crimes. The special judge later reconsidered the original judge’s transfer order, and she too found it “reasonable and necessary to ensure the defendant’s safety and to prevent serious bodily injury.” R. Vol. 1 at 26.
…. But even assuming every aspect of Allen’s pretrial confinement is proper (and again, we are in no position to say one way or another at this point), extending it for at least nine months still presents extraordinary challenges for which there is no adequate appellate remedy.
What’s more, as we explain in greater detail below, we’ve concluded the trial court lacked the authority to remove counsel without (1) considering other, less drastic options and (2) weighing the prejudice to Allen. So not only would Allen’s trial be delayed for at least many months if his original attorneys were not reinstated, if Allen were convicted, correcting the disqualification by vacating his conviction and ordering a second trial would produce years of further delay and an enormous waste of time and resources. That would not serve anyone’s interests—not Allen’s, the State’s, the victims’ families’, the courts’, nor the public’s.
Of course, these concerns can generally be resolved through discretionary interlocutory appeals. …And both the State and the special judge argue that is the procedural route Allen should have pursued instead. But Allen effectively couldn’t, which is another reason this matter is extraordinary.
On top of disqualifying counsel, the special judge struck their later filings because they were no longer counsel of record. Without the ability to file a motion requesting the special judge to certify her order for interlocutory review, Allen’s attorneys couldn’t pursue that avenue. App. R. 14(B) (requiring trial court certification to pursue a discretionary interlocutory appeal).
We simply don’t expect Allen to untie that procedural knot, and he can cut through it with this original action instead. Our prior precedents pointed appellate counsel to the original action tool, and we decline to retire that tool for these sorts of situations now.
Having concluded that Allen’s petition is properly before us, we turn to its merits.
B. Allen is entitled to the reinstatement of his original court‐appointed counsel.
1. Court‐appointed counsel may be disqualified only as a last resort after considering the prejudice to the defendant.
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Allen can’t afford an attorney, and he has asked us to reinstate Baldwin and Rozzi as his court‐appointed counsel. Consequently, he has no constitutional right to choose which attorneys will represent him. But he didn’t choose Baldwin and Rozzi; the trial court did. Allen just wants to continue with the attorneys the trial court chose for him—he is insisting on the continuity of counsel rather than his choice of counsel.
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So whether as a product of a defendant’s right to due process or the right to counsel, the bottom line is this: a trial court cannot disqualify court‐appointed counsel over the objection of both the defendant and appointed counsel unless (a) disqualification is a last resort; (b) disqualification is necessary to protect the defendant’s constitutional rights, to ensure the proceedings are conducted fairly and within our profession’s ethical standards, or to ensure the orderly and efficient administration of justice; and (c) those interests outweigh the prejudice to the defendant.
….The framework we describe here mirrors how our Court has treated other drastic remedies that may conflict with parties’ due process rights. And our concern that disqualifying counsel introduced structural error—at least as it relates to disqualifying them as privately‐retained pro bono counsel—presents further extraordinary circumstances that prompt us to exercise our jurisdiction now to preserve the integrity of the trial proceedings going forward.
2. Disqualification here was not a last resort.
The special judge concluded Baldwin and Rozzi made four mistakes that demonstrated they may be unable to assist Allen with his defense effectively: (1) they failed to secure confidential case materials, including crime scene photos; (2) Baldwin misdirected an email (he says inadvertently) with confidential case materials to a non‐party client without timely reporting the mistake to the trial court or prosecutor; (3) Baldwin and Rozzi made extrajudicial statements while the prosecutor’s motion for a gag order was pending which the special judge thought might prejudice the case; and (4) statements in Baldwin and Rozzi’s Motion to Reconsider Safekeeping Order turned out to be wrong. Respondent’s Br. at 12–15. But the record does not reflect the special judge disqualified counsel only as a last resort after balancing her effective‐assistance‐of‐counsel concerns against the prejudice to Allen that would result from substituting counsel.
First, the record does not reflect that disqualifying counsel was a last resort. Each of the special judge’s four concerns could be addressed through a combination of procedural rules and court orders, including the gag order and protective order she entered. And trial courts maintain both statutory and inherent authority to compel compliance with their orders and the procedural rules through contempt proceedings and sanctions that include fines and even jail. Reynolds v. Reynolds, 64 N.E.3d 829, 833, 835 (Ind. 2016); In re Nasser, 644 N.E.2d 93, 95 (Ind. 1994); McQueen v. State, 272 Ind. 229, 231, 396 N.E.2d 903, 904 (1979) (recognizing that “a trial judge can protect [the] court against insult and gross violations of decorum by the infliction of summary punishment by fine, imprisonment or both via a contempt citation”); Ind. Code §§ 34‐47‐2‐1 to ‐4‐3 (contempt statutes). Indeed, the trial court’s protective order invoked the court’s contempt power to enforce compliance. R. Vol. 1 at 51 (ordering that the parties cannot grant anyone access to discovery materials without the court’s permission and without the person seeking access first signing an agreement subjecting them “to the Court’s contempt powers”). There was no finding that these tools were inadequate to resolve the special judge’s concerns.
Second, the only basis for disqualifying counsel was the special judge’s concern that they could not assist Allen with his defense effectively. Respondent’s Br. at 10–15. To be sure, the Sixth Amendment’s right to effective counsel “imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.” Gonzalez‐Lopez, 548 U.S. at 148. But there is no suggestion that Baldwin and Rozzi are out of their depth. Baldwin has over thirty years of experience representing thousands of clients around the state—including clients charged with murder, rape, robbery, burglary, and other violent offenses—and he has tried more than 125 jury trials. Rozzi has over twenty years of the same experience, including three murder trials and a previous certification to handle death penalty cases.
Moreover, neither the State nor the special judge argue that counsel’s extrajudicial statements or the statements in their motion harmed Allen’s defense. They do argue the disclosure of case materials undermines Allen’s defense, but they don’t explain how. And they don’t argue these mistakes reflect that Baldwin and Rozzi are incompetent to handle Allen’s defense or explain why disqualification is necessary to protect Allen’s right to the effective assistance of counsel. Notably, neither the State nor the special judge direct us to any case concluding that issues like these—either in isolation or combination—rendered counsel constitutionally ineffective or were sufficient to warrant disqualification.
Third, there is no showing that the special judge’s concerns outweighed the substantial prejudice to Allen from substituting counsel…
Because the record does not reflect disqualification was a last resort that was necessary after balancing the trial court’s concerns against the prejudice to Allen, Baldwin and Rozzi must be reinstated.
II. Allen’s remaining requests present no extraordinary circumstances warranting relief.
Allen’s second request is that we mandate that the trial court order Allen’s trial to commence within seventy days. Allen and his attorneys prepared and signed a speedy trial motion, but they never filed it with the trial court. Until a trial court has refused to rule properly, there is no basis for relief in this Court. Orig. Act. R. 3(A)(4); State ex rel. Wonderly v. Allen Cir. Ct., 274 Ind. 572, 574–75, 412 N.E.2d 1209, 1211 (1980). We therefore deny Allen’s request to order that his trial begin within seventy days, although his attorneys remain free to make such a request in the trial court if Allen wishes.
Allen’s third request is that we appoint a new special judge to avoid the appearance that the trial court is biased against the defense. But Allen has not stated facts showing clearly that the special judge’s disqualification is required. We begin with the presumption that a trial judge is unbiased. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002). To overcome that presumption, the party seeking disqualification must identify facts reflecting the judge’s actual bias or prejudice. Id. Our law is well settled that “[p]rejudice is not inferred from adverse judicial rulings.” Zavodnik v. Harper, 17 N.E.3d 259, 269 (Ind. 2014). And that is all Allen identifies here—the special judge’s adverse ruling disqualifying counsel.
No doubt, that adverse ruling was significant. But nothing in the record suggests the special judge’s decision emerged from bias or prejudice against Allen. Just the opposite, the special judge explained she disqualified counsel because she was trying to protect Allen’s right to the effective assistance of counsel. And we don’t minimize her concern; she faced a significant dilemma given her conclusion that defense counsel were no longer effective. If she left counsel in place and Allen was convicted, the conviction might have been vacated through post‐ conviction proceedings based on ineffective assistance of counsel. Or if she disqualified counsel and Allen was convicted, then the conviction might have been vacated because she infringed on Allen’s right to the continuity or choice of counsel. She was in a tough spot either way.
Though we’ve determined the record does not support her disqualification decision, we reach that conclusion with the benefit of weeks to consider the issue; thorough briefing and oral argument from excellent appellate attorneys; and the benefit of five justices and their staffs poring over the record, authorities, and arguments. The special judge did not have those luxuries.
Nor does Allen point to anything suggesting the special judge is biased against Baldwin and Rozzi. Of course, she said their mistakes reflected “gross negligence,” and she was concerned their representation was ineffective…
The special judge said counsel made mistakes that rendered their representation ineffective, but her statements were not based on any extrajudicial source or any experience outside this case. Instead, her statements were based entirely on her observations within this case. And while her conclusion that counsel were constitutionally ineffective was too harsh, she wasn’t wrong to be deeply concerned that sensitive case materials had leaked.
Though she mistakenly hit defense counsel’s eject button instead of the case’s lockdown button, she was right to try to get the situation under control quickly and decisively. Her efforts did not reflect any bias or prejudice, and Allen doesn’t identify anything she has done that demonstrates she isn’t impartial. We therefore deny Allen’s request to replace the special judge.
Conclusion
Having granted Allen’s request to reinstate his original court‐appointed counsel and denied his remaining requests through our January 18, 2024 order, this opinion terminates the original action proceedings in this Court. Petitions for rehearing or motions to reconsider are not allowed. Orig. Act. R. 5(C).
Rush, C.J., and Massa and Goff, JJ., concur.
Slaughter, J., concurs in part and dissents in part with separate opinion.
Slaughter, J., concurring in part and dissenting in part.
Relator, Richard Allen, fails to meet the demanding threshold for obtaining the extraordinary relief he seeks. He establishes neither that Respondents breached a clear legal duty entitling him to an unquestioned right to relief nor that an ordinary appeal would provide an inadequate remedy. Thus, I concur with Part II of the Court’s opinion, ante, at 14–16, which denies Allen’s requests that we replace Special Judge Frances C. Gull and order a trial within seventy days. But I respectfully dissent from Part I, which orders the reinstatement of Allen’s court-appointed counsel, Andrew Baldwin and Bradley Rozzi.
My objection has less to do with the Court’s legal analysis than with its bottom-line issuance of a writ, given the procedural posture in which the issue of attorney disqualification comes to us. Had this issue arisen in an interlocutory appeal or after a final judgment, I would be more open to Allen’s argument that the trial court erred in threatening to disqualify his trial counsel after finding them grossly negligent and incompetent. But that is not the posture of this case. By seeking relief through the vehicle of an original action, Allen takes on the onerous burden of satisfying its exacting requirements.
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