Attorney General's office to defend state prosecutors
INDIANAPOLIS -- Indiana Attorney General Greg Zoeller announced late Tuesday that he would act as legal counsel for a group of county prosecutors who have been named in a civil law suit filed through Marion Superior Court.
The suit, filed by Indianapolis law firm Roberts & Bishop, deals with the filing of civil forfeiture suits against the property of drug offenders or other criminals. Under Indiana law, prosecutors can seek to seize the proceeds of crime, and use those proceeds to fund law enforcement efforts.
Prosecutors in 78 of Indiana's 92 counties -- including Putnam County Prosecutor Tim Bookwalter -- are named as defendants in the case, which calls into question their handling of the proceeds in civil forfeiture cases. The suit alleges that the prosecutors have violated state statute that says any money left over in forfeiture cases after the enforcement fees associated with the case have been paid is to be turned over to Indiana's Common School Fund.
Zoeller cited Indiana Code 33-23-13-3, which states that the Attorney General's Office is obligated to represent the state's prosecuting attorneys in any civil suit filed in connection with their jobs if the prosecutors request the assistance.
"A number of the 78 prosecutors named in the lawsuit unsealed last week have invoked that statute and asked the Attorney General to defend them," a release from Zoeller's office said. "Zoeller expects that more requests will be forthcoming."
Zoeller himself had harsh words about the validity of the suit.
"Accusing prosecutors of intentionally violating the False Claims Act strikes me as unfair public criticism, when this disagreement over the calculation of money really is a dispute over the state's public policy, not false claims," he said in a statement. "The plaintiff's framing the lawsuit in a way to claim to be representing the state will not keep me from my duty to defend prosecutors in court against civil lawsuits.
"The proper place to argue that Indiana's civil forfeiture law is too lax or too vague is the Indiana General Assembly, which can introduce and pass a bill to change the law. I would support legislative efforts to clarify the civil forfeiture law to provide more transparency and certainty, but that debate ought to happen in the Legislature, not in civil court."
Zoeller went on to point out that prosecutors are within their rights to calculate law enforcement costs, and that property can't be seized under civil forfeiture unless a court approves it first.
"Many counties investigate drug crimes using their local drug task force," Zoeller said. "Drug crimes don't occur in isolation; they involve networks of suspects. Undercover investigations of drug rings are inherently dangerous and can require months or years to develop enough evidence before the prosecutor can file charges. Under current law, prosecutors have the discretion to apply assets recovered under civil forfeiture to overall law enforcement costs, rather than having police bill by the hour.
"Prosecutors who protect the public from dangerous predators by investigating crimes, filing charges, and winning trials do not need to be distracted by civil litigation over public policy," Zoeller continued. "Although it has been inaccurately suggested that we either must side with the plaintiff or do nothing, the law is clear that the Attorney General's Office represents prosecutors, as we do every day in appellate court. We will provide our clients, the prosecutors, with a zealous defense."
Bookwalter called the lawsuit "frivolous."
"The Attorney General will represent all of the counties, and I expect the lawsuit to be dismissed in short order," he said.
Chris Gambill, forfeiture attorney for Putnam, Owen, Clay, Parke, Vermillion, Vigo and Greene counties, agreed.
"What people don't realize is that many of these cases we're talking about are relatively small," he said. "If you're talking about $5,000 or less, once the costs of the investigation are paid there is rarely any money left over."
Paul Ogden is a political blogger and attorney for Roberts & Bishop. He is handling the case for the law firm.
In his blog, Ogden accused the prosecutors named in the suit of "policing for profit as opposed to policing to stop criminal activity," as well as "taking money that doesn't belong to them."
Gambill said Bookwalter invited the attorneys who filed the suit to come to his office and look at all his records, but that they never did so.
"They have never taken the time to actually come over to Putnam County and inspect records," Gambill said.