High court mulls action

Prosecutor accused of violating lawyers’ code of conduct

A judge’s recommended public reprimand for the Johnson County prosecutor is now being considered by the Indiana Supreme Court.

In January, a judge issued a recommendation in the ongoing disciplinary matter against elected prosecutor Brad Cooper, calling for a public reprimand and finding that he violated the state’s professional code of conduct for attorneys.

The five justices of the Indiana Supreme Court will make the final decision about whether Cooper violated any rules and what, if any, discipline he should face, supreme court spokeswoman Kathryn Dolan said. A story published in the Jan. 28 Daily Journal incorrectly said that the hearing court’s decision was the resolution to the case.

Cooper and his attorneys, as well as the Indiana Supreme Court Disciplinary Commission, which oversees disciplinary complaints against attorneys, can file additional responses before the Indiana Supreme Court makes a decision, Dolan said. No timetable has been set for the decision and the court is not expected to conduct a hearing on the matter, she said. If neither side files additional responses, the case is ready for supreme court consideration.

Cooper declined to comment on any next steps. His attorney, James Voyles, was not available.

David Griffith, who was the attorney for the Indiana Supreme Court Disciplinary Commission for the proceedings, declined to comment on whether he would be filing a response to the judge’s recommendation, saying he had 30 days to respond.

Few complaints against attorneys have reached the Indiana Supreme Court for possible disciplinary action each year, according to a review of the court’s final disciplinary actions for 2015, 2016 and so far this year. For example, nearly 1,500 complaints against attorneys were filed by the public or initiated by the disciplinary commission in the 2015-16 fiscal year, according to the supreme court’s annual report. Of those, 33, or 2 percent, resulted in misconduct charges being filed by the disciplinary commission, the annual report said.

Disciplinary action against any of the state’s 92 elected county prosecutors is rare, according to data from the Indiana Supreme Court from 2015 to 2017.

The case regarding Cooper was filed in 2015 by the Indiana Supreme Court Disciplinary Commission due to comments Cooper made to the media in 2014 after St. Joseph County Superior Court Judge Jane Woodward Miller ruled that Michael Dean Overstreet, who was convicted of murdering 19-year-old Kelly Eckart in 1997 in Johnson County, should not be executed. The appeal case had been transferred to the northern Indiana court after Johnson County Superior Court 2 Judge Cynthia Emkes recused herself due to medical issues.

When the ruling was made that Overstreet would no longer face the death penalty, Cooper told the media: “I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn’t even afford to drive up for the hearing. The idea that this convicted murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal.”

Under the state’s professional rules of conduct for attorneys, “a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

Cooper acted in reckless disregard to the truth or falsity of his statement and, because he made the comments to the media, the statements would likely be widely disseminated, Wayne County Judge Charles Todd wrote in his ruling that has been submitted to the supreme court.

Todd also said Cooper’s lack of prior discipline, apology to the judge, involvement with Eckart’s family and personal issues he was facing before the comments were made should lead to a lesser level of disciplinary action. Todd recommended Cooper receive a public reprimand.

When the recommendation was issued, Cooper had said he was pleased with it.

“I have no issue with the ruling and wholly accept the recommended reprimand as I took too far my advocacy on behalf of a 19-year-old girl who was abducted, raped and brutally murdered (and on behalf of her mother), for which I have apologized to the ruling judge and have learned from this process,” Cooper said in an email when the recommendation was issued.

Now that the hearing officer has recommended a discipline, both Cooper and his attorney and the disciplinary commission can file responses, then an additional reply to the opposing side’s response, before the Indiana Supreme Court begins considering the matters, according to Indiana Rules of Court for admission to the bar and attorney discipline.

The first deadline to file a response is about Feb. 23, then both sides have another 30 days to reply, but none of the filings are mandatory. The deadlines could pass with neither side responding, but if responses are filed, the supreme court would not start considering the case until April.

One other elected prosecutor has been disciplined by the Indiana Supreme Court in recent years. Last month, the court issued a public reprimand to Floyd County Prosecutor Keith Henderson for misconduct relating to the trial of David Camm, a former police officer charged with murdering his wife and two children, according to court documents.

Henderson had entered into agreements with a literary agent and publisher to write a book about the case while the case and its appeals were ongoing, which created a conflict of interest, then asked the county to reimburse his legal fees from hiring his own attorney in the initial disciplinary matter.

The supreme court did find that Henderson committed misconduct relating to the conflict of interest, but found in his favor regarding the reimbursement, and he was issued a public reprimand, court documents said.

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Michele Holtkamp is editor of the Daily Journal. She can be reached at mholtkamp@dailyjournal.net or 317-736-2774.