Wednesday, January 5, 2011

The Mendenhall Chronicles: Part II

On June 1, 1983, Barnes & Thornburg Attorney Ed Delaney filed a complaint in Marion County Superior Court alleging that real estate developer Burke Mendenhall had violated the restrictive covenant in the deed requiring prior approval of the use of the Lafayette Square building by the former owner, Edward J. DeBartolo Corporation. Delaney asked for and a received a temporary injunction preventing the business from ever opening, a highly unusual request for a court to grant. Even more surprisingly, Delaney later amended the complaint five times getting new temporary restraining orders each time.

If Mendenhall had reason to suspect Delaney was using his power and influence to exert legal pressure on him, his suspicion grew by what happened next. Late in the afternoon of August 1, 1983, six Indianapolis and Carmel Police Department cars pulled up to his Carmel home. Burke Mendenhall was not inside, but his children were, including then twelve year old Gus Mendenhall. The police served Mendenhall’s family members with a summons and complaint filed by the Marion County Prosecutor’s Office. The lawsuit claimed Mendenhall and the other defendants named had conducted a criminal enterprise through a pattern of racketeering activity involving the distribution of obscene books and films.

Local attorney Greg Garrison was the private counsel Prosecutor Goldsmith engaged to handle the forfeiture complaint. That lawsuit asked that Mendenhall’s building and all personal property therein be forfeited. At the same time, Goldsmith filed a separate petition for immediate seizure of the bookstore.

The police visit to the Mendenhall home had a deep impact on the Mendenhall family. The Mendenhall children, including Gus, were teased at school about the police visit and the accusations their father was a pornographer involved in organized crime.

Within a week or so of the Goldsmith lawsuit, Mendenhall was hit by other legal action. Merchants' Bank filed foreclosure actions on three of his properties on the basis that the loan on the properties were not properly secured. Mendenhall had already worked out a deal with bank’s president on the property, so the foreclosure actions came as a surprise. Merchants' Bank was located in the same building as Barnes & Thornburg and partners from the firm served on the bank's Board of Directors.

When the Goldsmith seizure petition was filed, the court held an ex parte hearing, i.e. a hearing that Mendenhall knew nothing about and at which he did not have representation. The trial judge entered an order directing the Indianapolis Police Department to “lock, seal and secure” Mendenhall’s property in advance of the bookstore opening. On August 3, 1983, at Goldsmith’s direction and pursuant to the seizure order, Indianapolis police officers locked Mendenhall’s building, denying him access to it.

Mendenhall had never been charged with racketeering and, in fact, never would be. Mendenhall had no criminal record, and the racketeering law at that time required previous felonies. As noted, the adult bookstore had never even opened in the building. There were at the time approximately 70 adult bookstores in Marion County. Yet Goldsmith chose to single out one that had not sold the first book, magazine, or video.

As the bookstore never opened, almost certainly the only way Prosecutor Goldsmith could have known about the plans for Mendenhall’s building is if he was contacted directly or indirectly by Delaney. Goldsmith and Delaney certainly knew each other. Goldsmith had been a partner at Barnes & Thornburg before being elected prosecutor. Goldsmith and Delaney had worked on cases together, including a libel case involving the Indianapolis Star. Barnes & Thornburg had supported Goldsmith in his campaign. Goldsmith and Delaney were neighbors. Goldsmith also employed Delaney’s wife, Ann, who was the supervisor of the sex crimes division in the Marion County Prosecutor’s Office. Later, Ann Delaney would run against Goldsmith resulting in her leaving the prosecutor’s office, either willingly or unwillingly, depending on how her departure is characterized.

Delaney, for his part, did admit in his June 2010 deposition in the Gus Mendenhall criminal case that he may have had communication with attorneys in “parallel lawsuits,” a term Delaney specifically used to refer to actions such as the RICO forfeiture action Goldsmith initiated against Mendenhall. It is clear from the deposition exchange regarding the issue that Delaney did not see anything wrong with talking to Goldsmith about his office pursuing a RICO forfeiture action against Mendenhall.

Others would vehemently disagree. For a private attorney to be able to enlist the enormous power of a county prosecutor to gain leverage in a civil lawsuit undermines the very integrity of our legal system. Having been contacted about using his office to aid a private attorney in a civil lawsuit, an ethical public servant should have rejected the idea out of hand. Marion County Prosecutor Goldsmith did not do that, however, instead choosing to press forward with an attempt at prior restraint against Mendenhall, a legal position that a first year law student knew conflicted with well-established First Amendment case law.

But this is Indiana, a state where Barnes & Thornburg dominates the politics and the legal system. The clearly flawed legal theory succeeded in Indiana courts, resulting in the bankruptcy of Mendenhall and the tearing apart of his family. It finally took a trip to Washington, D.C. for a unanimous United States Supreme Court to give Burke Mendenhall the justice he was so long denied in Indiana courts.

See also:

The Mendenhall Chronicles: Prologue

The Mendenhall Chronicles: Part I


Gary R. Welsh said...

The irony is that it was DeLaney's client, the DeBartolos, who were actually tied to organized crime.

dcrutch said...

Whoooooa. Looks like influence in the Ballard administration is the tip of this iceberg. Talk about a rotten tooth with long, LONG roots!

IndyNorth2South said...

Wow ... just simply terrible.
... and he was just the landlord of a tenant who had not even opened to sell one book?
B&T sure has a long reputation of destroying peoples lives.
Very Sad.

Hoosiers for Indiana said...

Wasn't Goldsmith going after businesses that dealt in pornography 1983? Heck, he had a business owner arrested for just renting adult movies. In the early 1990s he attacked IMCPL for loaning "R" rated videos.

You are selling Goldsmith short. I'm sure others knew of Mendenhall's endeavors besides Delaney.

Ronald Rodgers

Paul K. Ogden said...


Yes, Goldsmith targeted other business in the lawsuit. It made no sense though for him to go after one that hadn't even opened when there were like 70 adult bookstores in town. He was almost certainly doing that as a favor to Delaney.

Plus, the First Amendment case law takes a dim view of prior restraint. It is almost impossible to restrain speech before it happens, yet Delaney and Goldsmith repeatedly were able to get those orders from Indiana courts. The Supremes though reversed it 9-0. Think about it...all the Republicans, Democrats Conservatives and Liberals on the court agreed that what was being done in Indiana was in violation of the First Amendment.

IndyNorth2South said...

Hoosiers for Indiana "I'm sure others knew of Mendenhall's endeavors besides Delaney."

What endeavor? Attempting to lease a building to a tenant that never opened the door nor made a sale? Seventy (70) others obviously were already engaged in the activity.

Do you mean others in concert with Delaney's objective for his client and Goldsmith's complicity conspired?
How could Goldsmith possibly know to go after Mendenhall if not for Delaney asking for him to do so. Using the criminal justice system to satisfy civil justice lawsuits is a felony in and of itself ... Just imagine the mayhem if ordinary citizens tried to do what Delaney did with very little involvement.
What possible endeavors could your comment be referring to ...? If there were other endeavors they clearly would have come out as part of the prosecutor satisfying the RICO requirement of a prior criminal conviction. Its clear that they (Delaney and Goldsmith) had to know the implications of their own endeavors to destroy a man and his family for their own personal gain ... whether for financial purposes or power.

After all the damage to this man and his family the US Supreme Court unanimously disagreed with the actions dictated by Goldsmith.


Gary R. Welsh said...
This comment has been removed by a blog administrator.
Paul K. Ogden said...


I didn't read HFI's comment that closely apparently. If he was saying that Goldsmith probably learned about the planned bookstore from other sources, I think that's highly unlikely given Delaney and Goldsmith's relationship. Delaney said it was quite possible he talked to Goldsmith about the bookstore in his deposition. He called the Goldsmith forfeiture/seizure a "parallel lawsuit" to the one he filed.