Judges urged to clear Putnam Co. prosecutor over undisclosed testimony deal

The Putnam County District Attorney-elect should not be penalized for failing to disclose an agreement for the testimony of a witness who claimed to have been misidentified, endangering him behind bars as a “snitch.” Hearing Officer in Timothy Bookwalter’s Lawyer Discipline Case Says Attorney Didn’t Break Any Rules, Should Not Be Punished, And Urged Indiana Supreme Court To Reconsider Duties ethics of prosecutors.

The ethical case of Bookwalter started in October 2019 when the Indiana Supreme Court Disciplinary Commission charged him with violating Indiana Professional Conduct Rule 3.8 (d). The rule requires prosecutors to disclose to the defense “all evidence or information known to the prosecutor which tends to deny the guilt of the accused …”.

The disciplinary complaint stems from a case Bookwalter was pursuing in Putnam County – a home invasion in April 2017 in which an elderly couple was brutalized and robbed. The husband suffered a serious brain injury after being hit on the head with a gun.

Justin Cherry and his accomplices were later convicted of stealing the couple’s vehicle, jewelry, money, guns, prescription drugs and more, according to the filing. Cherry’s conviction was confirmed on appeal.

When investigators executed a warrant against Cherry’s home, two co-defendants and another man, Michael Hostetter, were present. Hostetter had an alibi, but he also faced separate criminal charges in Parke County. A Putnam County Sheriff’s Deputy interviewed Hostetter in May 2017, seeking his testimony against suspects in the home invasion.

“Hostetter was reluctant to provide assistance because he feared for his safety and that of his family. In order to allay those fears, Putnam County Sheriff’s Officer, Pat McFadden … assured Hostetter that if his information proved useful, he would not need to be mentioned in the documents filed in the cases. criminal. In essence, no one would know that he helped law enforcement, ”wrote hearing officer Daniel J. Vanderpool, a Warsaw lawyer. McFadden also offered to “put a note” on Hostetter to Parke County law enforcement.

However, when Cherry and other co-defendants were indicted in Putnam County, Hostetter’s name was disclosed in affidavits along with the evidence investigators believed he would provide. This did not suit Hostetter and soon caused problems for Bookwalter.

Agree or disagree?

On January 29, 2018, Bookwalter and McFadden visited Hostetter in Parke County Jail in preparation for Cherry’s trial. “At this point, Hostetter was angry … believing that his safety had been compromised and that McFadden had failed to live up to his statements in the May 11, 2017 interview,” the agent wrote. ‘audience in his Report of December 29.

When Bookwalter returned to his desk, he first watched the video of McFadden’s interview with Hostetter. “It was (Bookwalter’s) determination after watching the interview that Hostetter had good reason to be angry,” Vanderpool wrote. He noted that Bookwalter “felt he had unknowingly put Hostetter at risk with the filing of the charges, discovery, and probable cause affidavits which underscored Hostetter’s contributions to several ongoing home invasion cases in the United States. Putnam County “.

Bookwalter “then put in place a course of action to attempt to accomplish what it believed to be consistent with representations made by McFadden to Hostetter for Hostetter’s already completed cooperation in the matter.” Among other things, Bookwalter contacted Parke County Assistant District Attorney Kevin Stalker, urging him to change Hostetter’s sentence to house arrest in exchange for Hostetter’s testimony against the co-defendants in the Owen County cases, Parke. , Putnam and Shelby.

A few days later, Bookwalter went to Plainfield Corrections for a second visit with Hostetter, who informed Bookwalter “that he had been called a ‘snitch’ by one of Cherry’s co-accused who was then being held in the prison system, and he felt his safety was in danger, ”Vanderpool wrote. “Later that same day, (Bookwalter) asked his victim assistant to send an email” to DOC to ensure Hostetter would not be housed with an incarcerated co-accused.

Ultimately, Hostetter’s sentence was changed to no-objection house arrest in Parke County, per an agreement Stalker emailed to Bookwalter. “At this point any deal McFadden made with Hostetter for Hostetter’s cooperation had been fully completed,” Vanderpool wrote.

But no deal was disclosed to the defense when Hostetter testified in Cherry’s trial.

After Hostetter testified and the trial was over for the day, “Cherry’s defense attorney became suspicious that Hostetter had received an agreement in exchange for his testimony in the Cherry case. His suspicions were not aroused by McFadden’s interview, but by a report which was brought to him that when Hostetter was in the hallway he told another individual that he was going to “screw it up.” Justin Cherry “to come out of his own case,” Vanderpool wrote.

After receiving this report, the trial judge spoke to all the parties the next day. Bookwalter “leaked his emails with Stalker and explained in the file that he called Mr. Stalker and told him ‘two things’. I said, Pat McFadden first said he put a good word to you and he didn’t. And I tell you he did these things. And the second thing that I made easier was that I said there was a safety issue here in my opinion.

Bookwalter “further stated that he had checked the court’s” discovery rules “and that he was under no obligation to disclose an agreement reached to testify in another county in an unrelated case. Cherry case “.

Vanderpool noted in not recommending any discipline for Bookwalter that the commission acknowledged that Cherry had received a fair trial and that Bookwalter had complied with disclosure requirements under Brady v. Maryland. Likewise, Bookwalter said during his hearing “that the best practice would have been to disclose any communication he had with a prosecutor regarding a witness in the Cherry proceeding. He admitted that this had not happened.

Bookwalter further disagreed in his defense that a deal had been made and needed to be reported.

“If the court determines that a violation has occurred, the Hearing Officer recommends that (Bookwalter) be excused for the violation,” Vanderpool concluded. “The novelty of the question of law and the imposition of a retroactive violation appear unfair and do not conform to the requirements of due process as applied to the respondent. “

The Supreme Court will have the final say on professional discipline, if any, that Bookwalter receives.

“Sir. Bookwalter is grateful for the careful and deliberate consideration of the evidence by the Hearing Officer,” said Bookwalter’s attorney, James Bell of Paganelli Law Group, in an email. “Out of respect for the process of Supreme Court which is not yet completed, Mr. Bookwalter will not make any further comment at this time. “

Vanderpool noted that Cherry’s defense attorney also had information on file about a potential deal with Hostetter, but also ignored it before Cherry’s trial.

New rules?

While believing the prosecutor should not face any penalty, Vanderpool said the court should use Bookwalter’s case to clarify the prosecutor’s obligations regarding testimony agreements.

Vanderpool asked this question in court in addition to his disciplinary decision on Bookwalter: “If there was an undisclosed agreement, what is ‘timely disclosure’ under the disciplinary rule? “

“The Commission acknowledges that Indiana never specifically asked whether Ind. Teacher. Cond. R. 3.8 (d) requires more of a prosecutor in terms of “timely disclosure” than what is required in Brady v. Maryland. It further acknowledges that in this case the Respondent complied with the disclosure requirement of Brady v. Maryland, and that if the Court were to find that the two standards are the same, then the respondent would not have broken the Rule.

“However, the Commission highlights decisions from several other jurisdictions to inform the court of the policy issues behind whether the standards should be the same – or whether they should be different. The Commission is of the opinion that the standards should be different, to reflect the fact that the role of a prosecutor in the criminal justice system should be irreproachable and reflect a higher vocation than simply meeting the requirements of the Constitution. These are certainly laudable goals and aspirations, but they must also be weighed against the possible practical effects of such a requirement, ”Vanderpool wrote.

“… Regardless of how this Court rules on this issue, this officer concludes that the respondent did not intentionally violate the Rule or the spirit of the Rule. While the Commission has concerns about the integrity of the Respondent in this case, this officer does not. The way the issue developed, the underlying uncertainty of what constituted a ‘deal’ to report, and the complexity of how the issue unfolded in the middle of the trial (as well as the judgment of the conduct of the Respondent at the hearing) convinced this officer that the Respondent did not intentionally act dishonorably, ”the Hearing Officer wrote.

The case is In the Timothy Bookwalter case, 19S-DI-574.