Johnson County Prosecutor Brad Cooper is set to be sentenced next week on three felony charges, but as his removal from office approaches, the public knows little about the specific allegations against him.
The state law being cited by a Hancock County judge as reason for keeping some information private could render useless the entire Indiana Open Door Law, which requires that the public’s business be done in public, said the top state official whose job it is to make sure public officials follow the state’s public access laws.
The criminal proceeding against Cooper is being overseen by Hancock County Superior Court 2 Judge Dan Marshall, who was appointed because no Johnson County judge could take the case due to conflicts of interest.
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On Thursday, nearly three months after Cooper pleaded guilty to criminal charges, the state stopped Cooper’s pay as prosecutor pending a review by the Indiana Office of Judicial Administration and the Indiana Attorney General’s Office.
“Your inquiry prompted a question regarding Bradley Cooper’s salary,” Indiana Supreme Court spokeswoman Kathryn Dolan said, referring to a Daily Journal question regarding Cooper’s pay since he faced criminal charges.
“Yesterday, OJA placed Mr. Cooper in no-pay status pending review of this matter,” Dolan said late Friday.
She cannot comment further until the review is complete, she said.
Cooper has pleaded guilty to criminal confinement, official misconduct and identity deception, all felonies, and a misdemeanor charge of domestic battery. He has agreed to plead guilty and to a sentence that includes 540 days of supervised probation and acknowledges he will be removed from his elected job as prosecutor as required by state law, according to the plea agreement.
His sentencing hearing is set for Wednesday afternoon in a Hancock County courtroom.
The charges against Cooper, 51, stem from a March 4 incident involving his then-fiancee at his home in Trafalgar. A recording of the 911 call from that evening shows that she fled to a neighbor’s home, and the neighbor called police.
From the start, some of the circumstances of the Cooper case have been unlike most criminal cases:
Cooper was not arrested the night of the incident, as is common in domestic battery cases.
Two search warrants that were issued in the case are not available to the public and are still being kept confidential by Judge Marshall. Typically, search warrants are unsealed and become public in the days and weeks after the searches are conducted.
No hearing was conducted as required by law in order to seal the search warrants.
Cooper was charged, had an initial hearing and offered a guilty plea in a Hancock County courtroom all during the same hearing, after a special judge and prosecutor had been appointed. The general public had no knowledge that such a hearing was scheduled, and the judge does not allow the public to listen to recordings of hearings after the fact.
Cooper waived his Fourth Amendment right to have the allegations against him aired in court. Because of that, the evidence or facts as gathered by the investigation was not part of the testimony in his April charging and plea hearing, nor was a probable cause affidavit filed in the court, as is custom in nearly all criminal proceedings. Instead, probable cause was stipulated, which means that Cooper agreed that probable cause existed.
If left unchallenged, the reason Judge Marshall cites for keeping the search warrants sealed renders Indiana public access law meaningless, Indiana public access counselor Luke Britt said. Britt is appointed by the governor to investigate possible violations of the public records laws and to train public officials on following the law. Marshall, in response to records requests, would not acknowledge that the search warrants exist.
“If (this were) anyone else, this would not be the case,” Britt said, referring to the search warrants remaining confidential. “It would be wide open. It would not be treated this way. In my experience, that’s the case.”
Marshall, in response to a public records request from the Daily Journal, cited an administrative rule regarding investigations unrelated to criminal proceedings as the reason for keeping records, if they exist, confidential. Those are filed as miscellaneous cases.
“The slippery slope here is that if the judge can do it with the Cooper case, then what’s stopping every case from being opened as a miscellaneous case, effectively rendering the entire Access to Public Records Act as meaningless,” Britt said.
Marshall cites a state rule that says that the following public records shall be kept private in their entirety: “Entire cases that exclusively pertain to investigative requests and process unrelated to a pending criminal proceeding, including but not limited to search warrants,” according to the administrative rule.
When the search warrants were issued, no charges had been filed against Cooper while Indiana State Police was still investigating, so no criminal proceeding was pending in court. But police routinely get search warrants for criminal investigations before charges are filed, and the evidence found during those searches is what leads to criminal charges.
Britt said that the judge’s reason shouldn’t overrule state law that says those records should be public, unless a hearing is conducted to seal them. The judge says he is allowed to keep the records private because of Indiana Supreme Court rules.
The decisions that have been made to keep information private were not made by Johnson County officials, as the sheriff’s office and Johnson Circuit Court Judge Andy Roesener both recused themselves from the investigation and proceedings immediately due to the appearance of or an actual conflict of interest.
“Johnson County has nothing to do with this,” Britt said, referring to the lack of transparency.
The Daily Journal sent formal Access to Public Records information requests to multiple agencies across three counties in an effort to gather documents that would shed light on the criminal case and proceedings. Records requested included the 911 tape, the police report from Indiana State Police, the search warrant probable cause affidavits and the return documents outlining what was found in the searches. The Johnson County Sheriff’s Office provided a copy of the 911 tape, and the Johnson County Clerk’s Office provided copies of all orders and records that were considered public.
Cooper became prosecutor in 2009 and, as the top law enforcement official in the county, had the final decision in whether suspects were charged with crimes. He remains prosecutor, but has had no interaction with the office and has not been involved in any cases since at least early April, Chief Deputy Prosecutor Joe Villanueva said. Villanueva has been leading the office.
Search warrants
At least two search warrants were issued in the weeks following the March incident, according to Indiana State Police and special prosecutor Doug Brown. Brown is chief deputy prosecutor in Decatur County and was appointed to handle the case against Cooper.
The first warrant was issued in March, and state police spokesman John Perrine said at the time that it was sealed, and no timetable had been set for when it would be available for public review.
Police investigators typically seek to have search warrants sealed so that the subject of an investigation is not aware of what specific evidence police are looking for in advance. State law requires that a hearing be conducted in order to seal a warrant, and that the search must be conducted within 10 days.
Search warrant probable cause affidavits outline the evidence that police have gathered so far, which a judge reviews to decide if enough evidence exists to justify a search. Police also have to outline what specific evidence they are looking for. After the warrant is served, they must report back to the court on what was found. Search warrants are then unsealed so that the public agency can be scrutinized by the public, Britt said.
“I think it is critical that our law enforcement and judiciary are transparent so that the public has assurances that the process works according to how it is supposed to work,” Britt said.
State law does not specify a time for warrants to be unsealed, but common understanding is that a warrant is unsealed when it is served, because the need for the confidentiality no longer exists, he said. That has also been common practice by the Johnson County courts and police agencies.
“There is no need for secrecy anymore,” Britt said.
But the search warrants in the Cooper case remain sealed, because the administrative rule Marshall cites allows it.
Britt said that argument doesn’t work, because it is intended for specific cases, such as mental health proceedings or juvenile proceedings, which are sealed automatically. But in a pending criminal proceeding, that information is presumed to be public record unless the court conducts a hearing to seal them as required by law.
The Daily Journal asked Marshall for documentation that a hearing was conducted; he provided none.
Search warrants should be available to the public generally because it is part of the checks and balances of the government’s authority to search your property, and making sure that the courts, law enforcement and prosecutors are operating within the bounds of the law, said Steve Key, general counsel for the Hoosier State Press Association. The Daily Journal is a member of the organization.
Suspects shouldn’t be tipped off, and officers’ lives should not be put in danger, which is cause for warrants to be sealed temporarily, Key said.
“Indiana’s policy has always been that unless there are extenuating circumstances to extend that sealing of information, the rule of thumb is that once it is served, then it is available,” Key said.
The administrative rules that Marshall cites runs contrary to accountability and a check and balance on the judicial branch of government and the prosecutor’s office, Key said.
Brown, the special prosecutor, said the investigative file was sealed due to “ongoing general concerns about confidentiality during the investigative phase.”
“I needed our investigative requests and orders to be private as they are in all criminal investigations,” he said.
Brown said the public has a right to know certain facts about the case, which he will include in a sentencing memorandum that should become public record in the coming days.
Brown noted that Cooper is presumed innocent until proven guilty.
Although Cooper has agreed to a guilty plea, it is not official until the plea is accepted by the court and entered into court records, Brown said. That is what is scheduled to happen at the hearing on Wednesday.
Brown said he would speak more freely about the case after the conviction is entered.
“Johnson County certainly deserves that,” he said.
Brown said the case against Cooper was procedurally unique in that he was not arrested the night of the crime. Brown was not part of that decision, he said.
The 911 call was made to Johnson County emergency dispatchers, who sent Johnson County Sheriff’s Office deputies to the scene. When deputies realized that the suspect was Cooper, the sheriff ordered an outside investigation to avoid any conflict of interest. Indiana State Police was called and immediately took over the investigation.
No details
The Cooper case is unique in many ways.
In most criminal cases, police and the prosecutor’s office file a probable cause affidavit that outlines the investigatory findings that led to the criminal charges. In some counties, probable cause hearings are conducted, where police and investigators testify in court as to the evidence that has led to the charges. Probable cause affidavits or hearings outline the evidence against a suspect.
That did not happen in the Cooper case.
The charges against Cooper are felony criminal confinement, felony identity deception, felony official misconduct and misdemeanor domestic battery. But what is unknown is the nature of the battery against the victim or how she was confined and for what period of time.
The charging documentation said that he committed identity deception by assuming the identity of the victim and using her phone to send electronic messages. But the charges do not explain the nature of the messages he sent and to whom, and how he committed official misconduct as the elected prosecutor. Those are the details typically outlined in a probable cause affidavit or hearing.
Cooper was charged and pleaded guilty during an April hearing in Hancock County. Brown, the prosecutor, said that it was not necessary to outline probable cause because Cooper was not being taken into custody at that time. The prosecution and defense had agreed that Cooper would be processed through the Johnson County jail within 24 hours after the hearing, according to a transcript of that hearing.
Cooper’s attorney, Stephen Oliver of Martinsville, Brown and the judge met in private that day before the hearing and discussed that the charges would be filed, and that no hearing outlining probable cause would be conducted, the transcript said.
Cooper and the victim attended the hearing as well. She testified that she had been part of the negotiations and supported the agreement that had been reached, according to the transcript.
Cooper agreed to the charges and the guilty plea on the eve of a grand jury that had been scheduled to consider the evidence against him and whether he should face a criminal charge. Brown said it was unique for a suspect to plead guilty prior to a grand jury.
Grand juries are convened behind closed doors to consider evidence and decide whether a suspect should face criminal charges. Brown had decided to call a grand jury in the Cooper case, and it was scheduled to begin on Tuesday, April 16.
On the Saturday before the grand jury, Cooper and his attorney agreed to a verbal plea agreement, and the hearing in Hancock County was scheduled for Monday morning to lock in that agreement before calling off the grand jury, Brown said. Because Cooper had not already been charged, the scheduled court hearing was not part of a court record that the public could check to learn about developments.
The guilty plea hearing on April 15 was conducted in an open court room and attended by the victim, family and other members of the public, and a written transcript of the hearing was available, Brown said.
“The written transcript won’t reflect the cathartic release that attendees witnessed,” Brown said. “It was certainly emotional.”
Marshall, the judge, in response to an access to public records request, said that a transcript of the hearing was available through his court staff. His staff said that the judge never allows the public to listen to a recording of a hearing.
That is not common practice in Johnson County, or throughout the state.
“I’ve never encountered that with a regular criminal proceeding,” said Britt, the public access counselor.
He said an audio recording is the best and most accurate representation of the hearing, and he can think of no reason the public should not be able to access the recording, through listening in the court office or by obtaining a CD copy. Inmates and their attorneys receive recordings of their hearings routinely, he said.
“It’s kind of galling,” Britt said.
State law says that records, including recordings, are public records unless a specific law says it can or must be kept confidential, said Key, of the Hoosier State Press Association.
“There’s no provision that just makes it a blanket ‘you can never hear a tape of a proceeding in Hancock County,’” Key said.
Still on payroll as prosecutor
During the April 15 hearing in Hancock County, a guilty plea hearing was conducted and the court accepted the agreement, according to court records. State law says that any public officer, such as the prosecutor, is removed from office when a person pleads guilty in a guilty plea hearing.
But, because the conviction had not been entered and won’t be until Wednesday, Cooper has retained the title of Johnson County prosecutor and continued to draw his annual salary and benefits. He was on track to earn $151,137 this year.
Since the incident in March, he has continued to earn a taxpayer-funded salary of more than $12,000 per month. But he received his final paycheck earlier this week, and is set to a “no-pay” status for the pay period of June 30 through today, said Kendra Leatherman, legislative affairs director for the Indiana state auditor. Although prosecutors are elected locally, they are considered employees of the state judiciary system.
The conviction is set to be entered into court records during the sentencing set for Wednesday.
While Cooper has continued to hold the title of prosecutor, he has not been reviewing criminal cases, appearing in court or making charging decisions in several months, said Joe Villanueva, the long-time chief deputy prosecutor. Cooper has had no day-to-day interaction with the office, and Villanueva has been acting as prosecutor since April, he said.
“For all intents and purposes, he (Cooper) has not had any interaction with this office in many months,” Villanueva said.
Once the guilty plea becomes official after the sentencing hearing, County Clerk Trena McLaughlin will receive notice from the Hancock County court. She is then responsible for notifying the governor that Cooper has been removed from office, McLaughlin said.
The Johnson County Republican Party will conduct a caucus to appoint someone to fill the remainder of Cooper’s term in office, until the end of 2022. That vacancy has to be filled within 30 days.
Villanueva will be officially sworn in as acting prosecutor until the caucus.
Cooper’s license to practice law as an attorney may also be temporarily suspended by the Indiana Supreme Court, and he could face additional discipline regarding his license, according to the Rules for Admission to the Bar and the Discipline of Attorneys from the Indiana Rules of Court.
The executive director of the Indiana Supreme Court Disciplinary Commission will report the conviction to the Indiana Supreme Court and request that the lawyer be suspended, said Kathryn Dolan, spokeswoman for the Indiana Supreme Court.
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Here’s a look at the charges and sentencing agreement for Brad Cooper. The sentences will be served at the same time, meaning he will have 540 days on supervised probation total. The sentencing hearing is scheduled for Wednesday.
Criminal confinement
Level 6 felony
On March 4, Brad Cooper confined his fiancee without her consent.
Sentence: 360 days supervised probation, and the felony conviction can be changed to a Class A misdemeanor under the Alternative Misdemeanor Sentencing program.
Domestic battery
Class A misdemeanor
On March 4, he knowingly or intentionally struck his fiancee that resulted in a bodily injury.
Sentencing: 360 days on supervised probation
Identity deception
Level 6 felony
On March 4 to March 5, Cooper knowingly or intentionally used phone information to pretend to be his fiancee while sending messages to another person.
Sentencing: 540 days on supervised probation. He can ask the court for the conviction to be changed to a misdemeanor after three years.
Official misconduct
Level 6 felony
On March 4 to March 5, Cooper committed an offense in the performance of his public servant duties as elected prosecutor by committing identity deception during the criminal domestic battery investigation.
Sentencing: 540 days on supervised probation. He can ask the court for the conviction to be changed to a misdemeanor immediately upon completing probation.
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