The use of a special prosecutor has played a central role in the Kosciusko County Superior Court 2 judge's race.
Since 2004, the county has employed a special prosecutor, Wilbur Ciders, from Peru, to hear probation violation cases that can't be handled by Judge James C. Jarrette.Both Jarrette and Kosciusko County Prosecuting Attorney R. Stephen Hearn declined to comment for this story.
The use of a special prosecutor came about after a probation violation case, "State of Indiana vs. Jolene F. Witham."
Witham violated her probation, and admitted the violation. Sentencing was scheduled for a later date. Witham failed to appear for her sentencing, at which point Jarrette issued a warrant for her arrest.
The prosecutor's office filed a motion to dismiss and recalled the warrant after finding out that Witham had been detained in Kentucky.
In a transcript of the April 19, 2004, hearing involving the situation, Deputy Prosecuting Attorney Daniel Hampton stated, "The prosecutor's office was under the impression, at least from the court file, that it was just a fees-only situation and then knowing the expense that would have been involved in extraditing her up here, opted for the nonpayment of the extradition fees, and then ask the court for recalling the warrant and dismissing the petition."
Hampton also noted Witham filed a money order for the money she owed.
Torrey Bauer, who is running against Jarrette, was Witham's court-appointed attorney.
In his response, Jarrette said he called the April 19, 2004, hearing to "establish the relative roles of the prosecutor's office and the courts, in regard to any probation violations and just to clarify that."
He cited a 1992 state Supreme Court case Lonnie Isaac v. The State of Indiana. In that case, it limits the prosecuting attorney's role in probation violation cases.
Jarrette stated the prosecutor's office can only file a motion to dismiss in a probation violation situation with "the leave of the court." Jarrette said the same is true for recalling warrants.
In a letter dated April 29, 2004, Hearn stated, "As a result of a hearing on April 19, 2004, I have reviewed the appropriate statutes concerning the duties of the prosecuting attorney ..."
Hearn went on to say, "Inasmuch as the judge of Superior Court No. 2 has called to our attention our lack of authority involving probation violations, it will be our policy in the future to not participate in any probation violation procedure in Superior Court No. 2."
The current process for probation violations is that an initial hearing is set, followed by an evidentary hearing where nearly half the cases are resolved.
Then a hearing is set to provide the prosecutor's office the chance to state why they shouldn't be removed from the cases that are still pending.
At that point, the prosecutor's office is relieved and Ciders is brought on.
Ciders' cases are usually set for Thursdays and take place an average of every six weeks.
Ciders served in 60 cases in 2005, 59 in 2006 and 56 in 2007.
So far in 2008, Ciders has 50 cases scheduled through Sept. 25.
In 2006, Ciders made $4,090, and in 2007 made $4,965, according to Kosciusko County Auditor Marsha McSherry.
McSherry said the money comes from an unappropriated fund and isn't a line-item on a budget.
