Menu
Justices urged to clear Bookwalter over undisclosed testimony deal
Putnam County Prosecutor Timothy Bookwalter violated no rules in a 2017 case, and should not be punished, a hearing officer said in urging the Indiana Supreme Court to re-examine the ethical duties of prosecutors.
The hearing officer in the attorney’s discipline case said Bookwalter should not be disciplined for accusations 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 Indiana Lawyer reported.
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 Indiana Lawyer noted.
The discipline complaint emerged from a case Bookwalter was prosecuting — an April 2017 home invasion in which an elderly Madison Township couple was brutalized and robbed. The husband suffered a significant brain injury after being struck on the head with a gun.
Defendant 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 Johnson County 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,” hearing officer Daniel J. Vanderpool, a Warsaw attorney, wrote in his Dec. 29 report. “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.”
However, when Cherry and other co-defendants were charged in Putnam County, Hostetter’s name was divulged in affidavits, which did not sit well with Hostetter and soon caused problems for Bookwalter.
On Jan. 29, 2018, Bookwalter and McFadden visited Hostetter in the Parke County Jail in preparation for Cherry’s trial.
At that time, Hostetter was reportedly angry, believing his safety had been compromised and that McFadden had not lived up to his part in the May 11, 2017 interview, the hearing officer wrote in his 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, noting that Bookwalter believed “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, Vanderpool stated, “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 Putnam, Owen, Parke and Shelby counties.
Bookwalter then went to Plainfield for a second visit with the incarcerated Hostetter, who informed Bookwalter “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 assistance officer to send an email to the DOC to ensure Hostetter would not be housed with any incarcerated co-defendant.
Hostetter’s sentence was ultimately 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.
However, no deals had not 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 (public defender Sidney Tongret) became suspicious that Hostetter had received a deal in exchange for his testifying in the Cherry case,” Vanderpool wrote. “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.”
After receiving this report, the trial court judge conferred with all parties the next day. Bookwalter reportedly disclosed his emails with Stalker, and explained on the record that he called Stalker and stated two things, “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 added 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.”
In recommending no discipline for Bookwalter, Vanderpool noted that the commission conceded Cherry received a fair trial and that Bookwalter had complied with disclosure requirements under Brady v. Maryland.
Likewise, Bookwalter stated during his hearing, The Indiana Lawyer reported, “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.”
In his defense, Bookwalter further disagreed 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, The Indiana Lawyer reported.
“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 to The Indiana Lawyer. “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.
While finding the prosecutor should suffer no sanction, Vanderpool suggested the court consider using Bookwalter’s case to clarify prosecutorial duties regarding deals for testimony.