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

The elected Putnam County prosecutor should not be disciplined for accusations that he failed to disclose a deal for testimony from a witness who claimed he was wrongly identified, placing him in danger behind bars as a “snitch.” The hearing officer in Timothy Bookwalter’s attorney discipline case said the prosecutor violated no rules, should not be punished and urged the Indiana Supreme Court to re-examine the ethical duties of prosecutors.

Bookwalter’s ethics case began in October 2019 when the Indiana Supreme Court Disciplinary Commission accused him of violating Indiana Professional Conduct Rule 3.8(d). The rule requires prosecuting attorneys to disclose to the defense “all evidence or information known to the prosecutor that tends to negate the guilt of the accused … .”

The discipline complaint arose from a case Bookwalter was prosecuting in Putnam County — an April 2017 home invasion in which an elderly couple was brutalized and robbed. The husband suffered a significant brain injury after being struck on the head with a gun.

Justin Cherry and accomplices subsequently were convicted of stealing the couple’s vehicle, jewelry, cash, guns, prescription medication and more, according to the record. Cherry’s conviction was affirmed on appeal.

When investigators executed a warrant on Cherry’s home, two co-defendants and another man, Michael Hostetter, were there. 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 reticent about providing any help, as he feared for his safety and the safety of his family. In order to assuage 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 case documents filed in the criminal cases. In essence, no one would know that he assisted law enforcement,” wrote hearing officer Daniel J. Vanderpool, a Warsaw attorney. McFadden also offered “to put in a good word” for Hostetter with law enforcement in Parke County.

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

Deal or no deal?

On January 29, 2018, Bookwalter and McFadden visited Hostetter in the Parke County Jail in preparation for Cherry’s trial. “At that time, Hostetter was angry … believing that his safety had been compromised and that McFadden had not lived up to his representations in the May 11, 2017 interview,” the hearing officer wrote in his Dec. 29 report.

When Bookwalter returned to his office, he viewed the video of McFadden’s interview with Hostetter for the first time. “It was (Bookwalter’s) determination after viewing the interview that Hostetter had good reason to be angry,” Vanderpool wrote. He noted Bookwalter “felt that he had unknowingly put Hostetter in danger with the filing of the charges, discovery and probable cause affidavits that outlined Hostetter’s contributions to the several home invasion cases pending in Putnam County.”

Bookwalter “then set out on a course of conduct to try to accomplish what he believed to be consistent with the representations made by McFadden to Hostetter for Hostetter’s already completed cooperation in the case.” Among other things, Bookwalter contacted Parke County deputy prosecutor Kevin Stalker, urging him to modify Hostetter’s sentence to house arrest in exchange for Hostetter’s testimony against co-defendants in cases in Owen, Parke, Putnam and Shelby counties.

A few days later, Bookwalter traveled to the Department of Correction in Plainfield for a second visit with Hostetter, who informed Bookwalter “that he had been called ‘a snitch’ by one of Cherry’s co-defendants who was then held in the prison system, and he felt his safety was in jeopardy,” Vanderpool wrote. “Later that same day, (Bookwalter) instructed his Victim Assistant to send an email” to the DOC to ensure Hostetter would not be housed with an incarcerated co-defendant.

Ultimately, Hostetter’s sentence was modified to home detention without objection in Parke County, per an agreement Stalker had emailed to Bookwalter. “At this point, any deal made with Hostetter by McFadden for Hostetter’s cooperation had been fully completed,” Vanderpool wrote.

But no deals had been disclosed to the defense when Hostetter took the stand in Cherry’s trial.

After Hostetter testified and the trial concluded for the day, “Cherry’s defense attorney became suspicious that Hostetter had received a deal in exchange for his testifying in the Cherry case. His suspicion was not aroused by the McFadden interview, but by a report made to him that when Hostetter was in the hallway, he had stated to another individual that he was going to ‘f*** up Justin Cherry’ to get out of his own cases,” Vanderpool wrote.

After receiving this report, the trial court judge conferred with all parties the next day. Bookwalter “disclosed his emails with Stalker, and explained on the record that he called Mr. Stalker and stated ‘two things. I said, Pat McFadden originally said he’d put a good word in for you and he didn’t. And I’m telling you he did those things. And the second thing that I did facilitate was I said there’s a safety issue here in my opinion.’”

Bookwalter “further stated that he had checked the Court’s ‘discovery rules’ and that he did not have a duty to disclose an agreement made to testify in another county in a matter unrelated to the Cherry case.”

Vanderpool noted in recommending no discipline for Bookwalter that the commission conceded that Cherry received a fair trial and that Bookwalter had complied with disclosure requirements under Brady v. Maryland. Likewise, Bookwalter stated during his hearing “that the best practice would have been to disclose any communication he had with any prosecutor relating to a witness in the Cherry proceedings. He conceded that did not occur.”

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

“If the court determines that a violation occurred, then the Hearing Officer recommends (Bookwalter) be excused from the violation,” Vanderpool concluded. “The novelty of the issue of law and the imposition of a retrospective violation seems unfair and not in keeping with the requirements of due process as applied to the Respondent.”

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

“Mr. Bookwalter is grateful for the careful and deliberate review of the evidence by the Hearing Officer,” Bookwalter’s attorney, James Bell of Paganelli Law Group, said in an email. “Out of respect for the Supreme Court’s process which has not yet concluded, Mr. Bookwalter will make no further comment at this time.”

Vanderpool noted that defense counsel for Cherry also had in its file information about a potential deal with Hostetter but likewise overlooked it before Cherry’s trial.

New rules?

While finding the prosecutor should suffer no sanction, Vanderpool said the court should use Bookwalter’s case to clarify prosecutorial duties regarding deals for testimony.

Vanderpool posed this question for the court to consider in addition to its disciplinary ruling on Bookwalter: “If there was an undisclosed deal, what is ‘timely disclosure’ under the Disciplinary Rule?”

“The Commission acknowledges that Indiana has never specifically addressed whether Ind. Prof. Cond. R. 3.8(d) requires more of a prosecutor in the way of ‘timely disclosure’ than 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 violated the Rule.

“However, the Commission points to decisions in 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. It is the opinion of the Commission that the standards should be different, to reflect that a prosecuting attorney’s role in the criminal justice system should be above reproach, and reflect a higher calling 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 comes down on that issue, this Officer finds that the Respondent did not intentionally violate the Rule or the spirit of the Rule. While the Commission has its concerns about the integrity of the Respondent in this instance, this Officer does not. The way the issue developed, the underlying uncertainty of what constituted a ‘deal’ to be reported, and the complexity of how the issue unfolded in the midst of trial (as well as judging the demeanor of the Respondent at the hearing) convince this Officer that the Respondent did not act intentionally dishonorably,” the hearing officer wrote.

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