Look at court records, and you’ll find that Johnson County Prosecutor Brad Cooper is not involved in a criminal case involving a Franklin police officer.
Legally, he’s got a conflict of interest. Cooper hired suspended Franklin police officer Bryan K. Burton to do construction work at his home, and Cooper filed a court motion to remove himself from the case. His filing — called a recusal — sets in motion a process of a county judge picking a new special prosecutor to review a criminal report regarding the officer, and Cooper would have nothing more to do with the matter.
But while Cooper has not been officially involved in determining whether Burton faces a criminal charge, he’s been talking about and sending emails and letters about who was initially picked as special prosecutor, the judge who made the selection and efforts he said he made to get involved in the process.
He said he went to Johnson County Superior Court 2 to urge Judge Cynthia Emkes not to pick a prosecutor with any connection to the county.
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After Emkes selected Ted Adams, the elected prosecutor in Brown County who previously worked in Johnson County, Cooper told Adams to decline the case, Cooper said. Later, Cooper said that a letter he distributed caused Adams to decline the case, even after his investigation and review was underway.
Adams and Emkes both said they do not recall any conversations with Cooper in the context he has presented in a letter and emails to the Daily Journal.
Cooper also has contacted by email others involved in Burton’s criminal proceedings and his disciplinary proceedings within the police department, such as Burton’s attorney and the Franklin police merit board, which will decide Burton’s fate as a police officer. The police chief has asked that Burton be fired on grounds of conduct unbecoming an officer and conduct injurious to the public peace or welfare.
At issue is whether Cooper’s commentary and actions on a case he has removed himself from due to a conflict of interest are appropriate considering he has a financial relationship and a documented past with Burton, the subject of the criminal investigation.
Further, Cooper said he has read the investigations file regarding the most recent Burton arrest, and he doesn’t expect criminal charges to be filed. Burton and his wife were both arrested on a charge of domestic battery after an incident Oct. 23 at their home.
“The main thing about this is, I’ve read that case, and the case is not going to, there’s no prosecutor in his right mind who is going to file that,” Cooper said, referring to a special prosecutor filing a criminal charge.
Cooper said the lack of recollection by Adams, Emkes and Emkes’ staff doesn’t mean the conversations never happened, and he stands by his right to give his opinion to the judge and special prosecutor about who to appoint and whether to accept the case.
Cooper said he was acting as a resident entitled to an opinion when he went to Adams at a social function and told him not to take the case. The prosecutor’s office spokesperson, Alex Hamner, had said earlier that Cooper and his office would be hands-off as the Burton case went forward, but clarified later in an email that “hands-off” doesn’t mean that Cooper can’t have an opinion on the case.
“Because I am no longer having anything to do with the case, legally, that doesn’t mean I can’t have an opinion on it,” Cooper said.
A national legal ethics expert said that isn’t the case when it comes to prosecutors who remove themselves due to a conflict of interest.
“The fact that you are a citizen doesn’t confer on you the authority to violate on the restrictions imposed by the idea of recusal,” said Geoffrey Hazard, who has also written or helped write several courtroom manuals and rules that most states use to govern legal ethics, such as the American Bar Association’s Model Rules of Professional Conduct, and helped draft and was a consultant for the association’s Model Code of Judicial Conduct.
“That’s just nonsense.”
State law regarding the appointment of a special prosecutor outlines when a special prosecutor may be needed and the scope of their work. The law doesn’t outline specific guidelines for prosecutors once they recuse, but legal experts said getting involved is questionable and that it is key for the appointed prosecutor to be independent and not know what the initial prosecutor who recused thinks should be done.
A senior prosecutor who has accepted dozens of appointments as a special prosecutor said he can’t recall an incident where a prosecutor who left a case urged him not to take a case. James Gallagher, who was deputy prosecutor for 20 years in Lawrence County and has been a senior special prosecutor, spoke about his experience when contacted by the Daily Journal. He had no knowledge of the specific situation in Johnson County.
Emkes also has raised questions about Cooper’s inquiries and comments, and Hazard, a national legal ethics expert who is also a professor emeritus at Hastings College, Yale University and University of Pennsylvania, said that with recusal comes the promise to stay entirely out of a case.
“Even if you have conversations, ostensibly ‘neutral,’ you can be skewing a viewpoint and changing the way the substitutes would handle a situation,” Hazard said.
When contacted by the Daily Journal, a former prosecutor who has worked as a special prosecutor on more than 100 cases throughout Indiana said that once he steps away from a case due to a conflict or appearance of a conflict of interest, he avoids talking to the subsequent prosecutor about substantive matters, such as his opinion on the case.
A prosecutor who recuses may need to discuss certain facts with the special prosecutor, but as a special prosecutor he would avoid getting the recusing prosecutor’s opinion on what decision should be made, said Stanley Levco, who was prosecutor in Vanderburgh County from 1990 to 2010. He was not familiar with the situation in Johnson County and was speaking in general about how he conducts himself on special prosecutor cases.
“I think the critical thing is for the succeeding prosecutor to be independent,” Levco said.
Cooper said he doesn’t care what other prosecutors or legal ethics experts said, and that he was only making a suggestion to guarantee the system is fair.
“First of all, I’m an expert,” Cooper said. “So I’m not going to comment on other experts. I don’t care what they think.”
‘I don’t know why he is saying that’
Cooper said he is speaking out now because of a news story published in early January that explained Adams’ connections to the county and how the judge considered him for the appointment. The story also presented background information about why Cooper stepped down from the case and his past work history with Adams and connection to Burton.
Cooper said in multiple emails to the Daily Journal and during an interview that he wants the case to be reviewed by someone with no connections to Johnson County to uphold the integrity of the legal system. He also said he urged the judge who not to appoint and told the selected special prosecutor not to accept the case.
After Adams accepted the case and began reviewing it, Cooper said Adams should step down from the case, citing ethical concerns. Cooper said his opinion is what has caused Adams to step away as special prosecutor.
“I believe that my position on this, and my publicly broadcasting my position on this, has caused that (his recusal),” Cooper said.
But Adams’ court motion to remove himself from the case after initially accepting the appointment outlines the insinuation of the appearance of impropriety due to a Daily Journal story as being the primary factor and does not mention Cooper, though Adams said in an interview that learning Cooper’s opinion reinforced his decision. Adams said he was still capable of making an unbiased decision on the case, but the questions raised caused him to step down.
Emkes has selected another special prosecutor to review the Burton report and decide whether he should face a criminal charge.
When Emkes was told that Cooper said he had told her court who not to pick as special prosecutor, she immediately quizzed her staff, searched the file and said no such conversations or communication took place.
“Even if he did that, we can’t do that (honor his request),” Emkes said. “I mean no.”
“I’m being honest with you,” Emkes said. “That did not happen. I don’t know why he is saying that.”
She could not make sense of why Cooper would even say he made such a recommendation, because it was not his place to get involved in the case, she said. It would be inappropriate for Cooper to make a comment or recommendation about who to pick, Emkes said.
She offered this example: if she leaves a case due to a conflict or appearance of a conflict and asks for a special judge to be appointed, it would be inappropriate for her, as the judge who stepped away from the case, to then suggest to the person making the appointment who should or should not be picked, she said.
“If I have a ‘conflict’ that is real or perceived that affects the public’s perception of my ability to be impartial, in my opinion, any suggestion from the recusal after seems innately inappropriate due to that perceived inability to be impartial regarding anything related to the case,” Emkes said.
“He could have put that in writing in his request for a special prosecutor,” Emkes said. “If he was going to do that at all, it should have been in writing as part of his request for a special prosecutor.”
She later said that she told Cooper she was sorry for the misunderstanding, but no one in her office heard him make the comment. Emkes said she never seeks a recommendation from a prosecutor who has recused when appointing a new prosecutor to consider a case.
During an interview with the Daily Journal regarding his communication with Adams and Emkes and their recollections compared to his, Cooper said: “Other people, one of them in particular, may be misrepresenting things to you based on self-interest.” He would not say whether he was speaking about Adams or Emkes, noting, “I’m not going to say anything bad about a judge.”
Cooper is facing a recommended public reprimand and finding that he violated the state’s professional code of conduct for attorneys regarding comments he made in 2014 about a judge considering a death penalty appeal in a murder case. The Indiana State Supreme Court Disciplinary Commission has said he violated a rule that states “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 has previously said he accepted the recommended reprimand, apologized to the judge and learned from the process.
Cooper would not say who he was referring to in his comment about someone misrepresenting information.
Emkes, in response to Cooper’s comment about someone involved in the situation misrepresenting information, said she and Cooper had discussed the issue and that he’s made his viewpoint public and written a letter.
“I thought we agreed: he said it, my office did not hear it, so misunderstanding and end of story,” Emkes said.
If Cooper did allege that Emkes or her office misrepresented information during interviews based on self-interest, “my reply is no person in my office, nor I, have a self interest here.”
She continued, offering a hypothetical situation in an effort to try to understand Cooper’s reasoning for making the allegation: “Let’s play this out for discussion only. Let’s all agree he made it very clear to everyone his suggestion was to appoint someone far, far away. Let’s agree that despite that, I appointed Ted, a person I’ve already defended as a very capable person and Ted agreed he had no reason not to accept. So where did that get us? Brad and I have a good relationship, but people disagree. I thought Ted would do a fair and thorough job. Brad strongly and openly disagreed with my decision because, in my opinion, he felt I didn’t adequately consider the appearance of impropriety that would be alleged regarding Ted. Brad, I think, felt that overshadowed any impartiality Ted and I believed existed. In the end, Brad convinced Ted not to serve and there is a new special prosecutor. Honestly, I know of no reason Brad would make that statement and direct it to me or my office, and again, it really surprises me.”
Cooper never issued ethical warning
Cooper said in an email that he had done “everything in his power” to make sure that the case is reviewed by someone with no connections to Johnson County, and he specifically told Adams not to take the case.
“This needs to be taken as far away to someone as neutral as possible, not just for Burton’s benefit, or for his accuser’s benefit, but for the benefit that it needs to have looked and appeared to the public to be a neutral and detached decision,” Cooper said.
Cooper said he first told Adams at a social event to not take the case, but never told him why.
“I don’t have to explain to him why,” Cooper said. “Why does that matter?”
After the news story was published, Cooper wrote in an email to the Daily Journal and others that he urged Adams to step down from the case due to an appearance of impropriety, a concern he never communicated to Adams, Adams said.
“It’s for a lot of reasons,” Cooper said. “I don’t care what I told Ted.”
Adams doesn’t recall Cooper telling him not to take the case, but he has no reason to doubt that Cooper did indeed say it, Adams said.
“He (Cooper) has this recollection that he said, ‘If you get called, don’t take it.’ I don’t remember that at all,” Adams said.
The topic came up again at a bar association event, when Adams asked him what kind of case he was looking into, since the Daily Journal had called and questioned him for a news story. Cooper responded that he had told Adams not to take the case, in a joking manner, Adams said.
Cooper never gave Adams a stern warning or urging not to take the case due to ethical reasons, Adams said. Cooper didn’t phone him, send a letter or ever communicate an ethical responsibility to pass on the case, Adams said.
This is not the first criminal case regarding Burton that Cooper has removed himself from.
In 2010, Cooper had asked for a special prosecutor to review possible criminal charges against Burton, when Burton was accused of multiple departmental rules violations, improperly reporting hours worked, providing alcohol to minors and not reporting a vehicle accident. Later that year, the special prosecutor filed a felony charge of official misconduct and a misdemeanor charge of battery against Burton after a fellow Franklin detective told Indiana State Police that he saw Burton touch an informant’s genital piercing.
The charges against Burton were later dropped, but at the time, Cooper said a special prosecutor was needed to avoid the appearance of bias against or favoritism for Burton or witnesses who would testify in his case. That included other officers and confidential informants Burton worked with as an undercover investigator, since Burton and others had been witnesses in cases tried by the prosecutor’s office.
While Burton was facing two criminal charges in 2011, a sheriff’s deputy stopped a vehicle being driven by Burton, who was suspended from his police officer job while facing the charges. Cooper was the only passenger in the vehicle, and was drinking alcohol, tried to conceal his identity, admitted to watching a sheriff’s office detective’s home and was fraternizing with Burton, a person charged with a crime in the county where he oversees all criminal cases, a report at the time said.