During the current campaign for the judge of the Kosciusko Superior Court 2, an issue has arisen concerning the court's expenditure of funds for hiring a special prosecuting attorney in probation violation proceedings. In explaining this situation, I would ask that you keep in mind that the court's actions in regard to this matter must follow the law.
The current law in Indiana provides that, in probation violation proceedings, the county prosecutor usually appears as the attorney for the probation department and assists by presenting evidence to the court of the alleged violation. However, the county prosecutor is not required to participate in probation violation proceedings and, in fact, has the absolute right not to perform those duties. That decision rests solely with the county prosecutor. If and when the county prosecutor elects not to participate in the probation process, the law then provides that the court should follow certain alternative procedures to resolve those pending probation cases. In some cases, involving less complicated or minor violations, the law allows the judge to resolve those questions without appointing a special prosecuting attorney.
However, in cases involving more complex issues of proof, investigation, multiple witnesses and assessment of credibility, the Indiana Supreme Court has directed "the trial court should appoint a special prosecutor to present the evidence of violation." By this ruling, the Indiana Supreme Court is saying that in cases involving more complicated issues, fairness requires that the person prosecuting the case and the person judging the case not be the same person. The determination as to which cases would fall within that category rests solely with the trial court judge.
Approximately four years ago, the Kosciusko County prosecutor elected not to participate in probation violation proceedings. Since then, the court, following the law and the procedures set out by the Indiana Supreme Court, has resolved approximately one half of the pending probation violation proceedings without the necessity of appointing a special prosecutor. But, in cases involving more complicated issues, the court, as required by the law, has appointed a special prosecutor to present evidence of the violation to the court. The law also provides that the special prosecutor attorney should be paid at an hourly rate equal to that of the county prosecutor for his or her services.
The expenditure of those funds for hiring a special prosecutor is both a required and necessary expense incurred by the court in resolving the pending probation proceedings. This procedure, as require by the Indiana Supreme Court, guarantees the fundamental fairness and impartiality of the probation violation proceeding. That, after all, is one of the court's primary obligations, to provide that guarantee of fairness to any party, litigant or defendant.
The unanimous Indiana Supreme Court opinion, written by Chief Justice Randall Shepherd, which states both the law and the procedures to be followed, is Isaac v. State of Indiana, 605 N.E. 2d 144 (Ind. 1992).
