Espar responds to Sullivan’s statement; explains why he didn’t recuse himself

EDITOR’S NOTE: LaPorte County Prosecutor John Espar released this statement Aug. 7, 2018, in response to a statement issued by LaPorte County Councilman John Sullivan’s attorney on Aug. 3 after Sullivan was charged with felony residential entry. (To read the Sullivan statement, click on this link: http://whatsnewlaporte.com/2018/08/03/laporte-county-councilman-john-sullivan-charged-with-residential-entry) Here is Espar’s complete statement issued Aug. 7:

Espar

This statement is issued on behalf of the State of Indiana by and through the Office of the Prosecuting Attorney for the 32nd Judicial Circuit, in response to media inquiries and media reports regarding the investigation and prosecution of John P. Sullivan (State vs. John P. Sullivan, LaPorte Circuit Court Cause No. 46C01-1808-F6-846). The Prosecuting Attorney is generally restrained from commenting on pending litigation under Rule 3.6 of the Indiana Rules of Professional Conduct. However, the Prosecuting Attorney may make a public statement, if the statement is necessary to address the prejudicial effect of recent adverse publicity which was not initiated by the Prosecutor.

On Aug. 3, 2018, several local news media outlets began reporting upon the filing of criminal charges and the arrest of John Sullivan for the felony offense of residential entry. Defendant Sullivan through his attorney issued a public statement attacking the investigation and prosecution. In the interest of preserving the public’s trust in the Indiana State Police, the Office of the Prosecuting Attorney, and the criminal justice process, this response is offered to explain the process and considerations which led to criminal charges now pending against John P. Sullivan.

According to the Probable Cause Affidavit of record with the Court, on or about May 14, 2018, the LaPorte County Sheriff’s Department responded to a 911 call for assistance involving the illegal entry into the Wanatah residence of a 39-year-old woman. The LaPorte County Sheriff’s preliminary investigation consisted of the initial 911 report, subsequent field interviews of at least one of two eyewitnesses and two members of the Cass/Clinton Township Fire Department. The Sheriff’s initial investigation identified LaPorte County Councilman John P. Sullivan as the primary suspect.

Upon conclusion of the preliminary investigation the LaPorte County Sheriff referred the case to the Indiana State Police for further investigation. The State Police accommodated the request and assumed responsibility for the investigation. After the investigation developed sufficient evidence in the investigator’s opinion to warrant formal charges, the State Police submitted the investigative results to the Prosecuting Attorney and requested the filing of a one-count criminal charge against John P. Sullivan for the offense of Residential Entry, a Level 6 Felony.  

Upon review of the State Police’s investigative file and Sheriff’s preliminary investigation, this Prosecuting Attorney determined that the investigation warranted criminal prosecution. The formal charges were prepared and the supporting evidence alleged in a probable cause affidavit for presentation to the presiding Judge of the Circuit Court. Upon review, the Court found probable cause, approved the filing and issued a warrant for the arrest of John Sullivan.

Soon after Mr. Sullivan’s arrest and release on bail, the Defendant (through his attorney) issued a “press release” which has been widely reported by the local news media. The press release can only be described as an obvious attempt to discredit the investigation and the criminal proceedings initiated against him. Mr. Sullivan refers to the charge as “a flimsy allegation” and rebukes Prosecuting Attorney Espar for not seeking a special prosecutor. The press release suggests that the prosecution is based, not upon a credible investigation, but rather political retribution for the Defendant having “backed Espar’s opponent in the May primary.”

Although the initial investigation by the Sheriff and subsequent investigation by the State Police were the only considerations which compelled the filing of criminal charges against Mr. Sullivan, this prosecutor feels compelled to flatly deny the Defendant’s suggestion that the charges were born of political retribution. And although this prosecutor had no knowledge that Mr. Sullivan was not among candidate Espar’s supporters, such knowledge – even if true and even if known – would not have legally or ethically required a request for special prosecutor.

A person’s political persuasion has no place in the charging decisions of any prosecutor. Upon that we all can agree. Prosecutors must enforce the law without consideration to a person’s political power, influence or persuasion. The suggestion that a prosecutor is legally or ethically obligated to seek a special prosecutor any time a criminal suspect may have supported the then-serving prosecutor’s political opponent is neither supported by the law nor logic.

If a prosecutor is required to turn his duties over to a special prosecutor whenever he encounters one who supported a political opponent, for fear that the prosecutor would violate his oath and exact petty political vindictiveness, then the inverse would be true of the prosecutor’s supporters. A prosecutor faced with the prospect of prosecuting one of his supporters would likewise logically be required to turn his duties over to another, for fear that the prosecutor would violate his oath in favor of political gratitude. Obviously, if the law placed such a low legal standard upon the need for a special prosecutor, very little would remain for the elected prosecutor to do.

Another more thoughtful question has been presented by members of the media and warrants a response: If the LaPorte County Sheriff asked for the State Police to take over an investigation, presumably because it involved a LaPorte County public official, why didn’t the LaPorte County Prosecutor do the same?

This issue raised by this question has been litigated to the Indiana Supreme Court previously, where well-established legal precedent draws an important distinction between the Office of a Sheriff of a particular county and the Office of the Prosecuting Attorney for a Judicial Circuit. The Sheriff is an elected official of his or her respective county government; the Prosecuting Attorney is not. This distinction eliminates the legal conflict that may otherwise exist for a Prosecuting Attorney when prosecuting a member of county government. The same such potential conflict has not been similarly eliminated for a Sheriff of a particular county.     

I cannot speak for the Sheriff and can only speculate upon any policy that he may have to seek the assistance of an outside law enforcement agency whenever an investigation involves another county official. The Sheriff may have determined that the direct financial relationship and the discretionary powers that the LaPorte County Council holds over the Sheriff’s Department, provides too fertile a ground for suspicion of improper motivation, should the Sheriff undertake an investigation of another county official, no matter the result of the investigation. Unlike the Sheriff, the Office of the Prosecuting Attorney is legally distinct from county government and legally removed from the financial or other pressures that members of the county council or county commission might otherwise have upon other members of county government.

We may commonly refer to the prosecuting attorney as the “county prosecutor,” but he is not. Prosecutors are judicial officers serving the “judicial circuit” in which they are elected. This distinction exists and is important for those very times when the prosecutor may be called upon to prosecute a public official county government, regardless whether that public official is a commissioner, county councilman or other member of local government. On this important distinction, Indiana law is clear:

“The prosecuting attorney is elected not for each county, but in “each judicial circuit” of the state.  For this reason, the Indiana Supreme Court has remarked that judges of the circuit courts and prosecuting attorneys are not state, county, or township officers, but rather are officers of the circuit.” (See Indiana Attorney General Official Opinion, 2002-4.)

“The prosecutor, in everything the prosecutor does, enforces state law. The prosecutor is not answerable to county authorities, nor does the prosecutor exercise county power. The prosecutor’s only connection with the counties in the prosecutor’s circuit is that the counties fund the operation of the office. But counties exercise no discretion or control beyond determining what level of funding is “necessary.” This level of independence is necessary for circumstances may arise where the prosecutor may be compelled to bring criminal charges against a member of the county commissioners.” (See, Indiana Attorney General Official Opinion No. 2001-11.)

Indiana law empowers the prosecutor to enforce the criminal laws of the State of Indiana, and purposefully provides the prosecutors a sufficient “level of independence” from the county governments to permit a prosecutor to perform his or her legal duties, which from time to time may include the prosecution of a county councilman or commission.

The Indiana State Police investigation of John P. Sullivan was referred to the Prosecuting Attorney for the 32nd Judicial Circuit for criminal prosecution. The Prosecuting Attorney reviewed the investigation and found sufficient credible evidence to support the charge of Residential Entry. The Affidavit and Information were presented to the presiding Judge of the Circuit Court for the 32nd Judicial Circuit, and the Court found probable cause, approved the filing issued warrant for the Defendant’s arrest. A special prosecutor was not requested because no legal or ethical reason compelled the request.

Although the circumstances prior to charging the case of State vs. John P. Sullivan did not warrant the appointment of a special prosecutor prior to the formal charging was complete, Indiana law affords any elected public official the means by which to seek the appointment of a special prosecutor. Ind. Code 33-39-10-2(b)(4) provides:

“A circuit court or superior court judge may appoint a special prosecutor if an elected public official who is a defendant in a criminal proceeding files a verified petition requesting a special prosecutor within ten (10) days after the date of the initial hearing and the court finds that the appointment of a special prosecutor is in the best interests of justice.”

The obvious import of this statute is that Indiana law contemplates and anticipates that prosecuting attorneys in the performance of their legal duties will from time to time file criminal charges against elected public officials within their jurisdiction. And this law seems to recognize that the local dynamics in play among county official and prosecuting attorneys may place in the minds of such public officials the sense that the interest of justice may be served under an appointment of a special prosecutor.

The facts and circumstances surrounding the investigation and charging of John P. Sullivan did not warrant the appointment of a special prosecutor; even less warranted was the defendant’s attempts to discredit the Indiana State Police investigator and Prosecuting Attorney for the ethical and lawful performance of their duties.

Nothing in this response should in any way detract from these cornerstones to our system of justice — that a criminal charge is merely an allegation and every person is presumed innocent of the charge against him unless the state proves him guilty beyond a reasonable doubt in a court of law.

6 Responses to “Espar responds to Sullivan’s statement; explains why he didn’t recuse himself”

  1. Kasey

    Aug 07. 2018

    I understand the law is the law. Nothing in the local media has stated the circumstances of the allegations against Mr. Sullivan. It’s hard for any member of the public to form an opinion based on the lack of information regarding the charge. All comments I’ve read so far is Mr. Sullivan is an outstanding member of the community. I think there are underlying issues here regardless of Prosecutor Espar’s response. My opinion is only my opinion but I was shocked when his daughter decided to run on the opposing ticket for the GOP. I take your side Mr. Sullivan.

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  2. Anon

    Aug 08. 2018

    I’ll have to take a week off of work to read that whole thing. What I have read seems like a bunch of lawyer jargon to save face. This whole Espar thing still seems so strange.

    Reply to this comment
  3. John Doeadear

    Aug 08. 2018

    he drones on and on and on and on, which sounds to me that he protests too much. was anyone surprised that he didnt get a special prosecuter when he doesnt get them for cases involving his own family?

    Reply to this comment
  4. Myworthless2cents

    Aug 08. 2018

    Mr. Sullivan seems to like to “walk right in like he owns the place”. My question is why. In this case why did he waltz right in. Is it not the homeowner who is pressing charges. There is more to this story that we are not hearing.

    Reply to this comment
  5. Bryn

    Aug 10. 2018

    A lot of jargon with no substance or aeticulable allegations. What exactly is the story here? I am for Sullivan.

    Reply to this comment
  6. LP County Citizen

    Aug 11. 2018

    Another more thoughtful question has been presented by members of the media and warrants a response: If the LaPorte County Sheriff asked for the State Police to take over an investigation, presumably because it involved a LaPorte County public official, why didn’t the LaPorte County Prosecutor do the same?
    _________________________

    I can tell by reading this is, Espar is going to use the so call judicial law to the maximum. Reportedly because Sullivan supported his opponent. NO WONDER one of reasons why he lost to Lake, because he’s not ethical, not honest. Who knows what else is in Espar’s closet, what he hides from the public. I applaud John T Boyd (The Sheriff) for recusing himself, that’s what you call honesty and integrity of his office. I expect and suggest these charges should be dropped because there is some kind of corruption due to lack of integrity involved. “I’m for Sullivan”.

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