Thursday, December 2, 2010

Facts Get in the Way of AG Greg Zoeller's Attempt to Spin His Representation of Prosecutors Accused of Diverting Funds Owed to Schools w/Update

Today's Indianapolis Star contains an op-ed piece written by Indiana Attorney General Greg Zoeller in which he explains why he will attempt represent the county prosecutors in the lawsuit my law firm brought on behalf of the State of Indiana to recover forfeiture proceeds prosecutors have failed to pay to the Common School Fund. The piece is so chock-full of holes, it is difficult to know where to start.

Before I begin, I welcome Attorney General Zoeller to the debate over civil forfeiture reform. Stories have been published for years about problems with Indiana's forfeiture system. Yet Zoeller never proposed any sort of reform. It was well known by many in the legal community that civil forfeiture proceeds have not been accounted for. I, with a simple contact to the Treasurer's Office, was able to find out that in the last nearly three years only $95,500 had been paid to the Common School Fund from civil forfeiture in the entire state of Indiana.

Zoeller has never demanded any accountability with regard to civil forfeiture proceeds. Nor has he demanded that prosecutors and other public officials follow the law. Only now has he been pushed, through this litigation, to take a stand. Until the lawsuit, Zoeller was perfectly fine with law enforcement, including deputy prosecutors, his clients, pocketing cash that belongs to the state's schools.

Now, let's look at some of the whoppers Attorney Greg Zoeller tells in his piece. He said IC 33-23-13-3 "requires" him to represent the prosecutors. The law does no such thing. Here's what that statute he cites actually says:
"If a judge or prosecuting attorney is sued for civil damages or equitable relief and the suit would be construed, under notice pleading, as arising out of an act performed within the scope of the duties of the judge or prosecuting attorney, the attorney general shall:
(1) defend the judge or prosecuting attorney in the suit; or
(2) authorize the executive director of the division of state court administration to hire private counsel to provide the defense."

That "OR" in the statute gives the Attorney General the option of declining representation to a judge or prosecutor and allowing outside counsel to be hired. Indeed when I worked for Attorney General Linley Pearson the AG wouldn't automatically represent a public official accused of violating the law. We would first do an investigation and decline representation if we thought the official was breaking the law.

Ah, but there's the rub, the Attorney General claims he did an "investigation" during the 120 day seal period and there was no "fraud" documented. Really? Our office, the plaintiff in the lawsuit (and the one the AG is supposed to work with during the 120 day review of the issues raised in the complaint), was never contacted. We had, through open records, been gathering a box full of information about forfeitures all over the state since the lawsuit was filed. The Attorney General certainly knew about the open records requests. But did the Attorney General ever ask to look at that information we had gathered? Nope. I'd be curious to know how this "investigation" was conducted under the seal (without tipping off the county prosecutors about the lawsuit) and why the Plaintiff was not contacted for information he had gathered. The first I ever heard the Attorney General had conducted an "investigation" was from a reporter two days ago.

The fact that Zoeller is making a cold, calculated political decision is reflected in his comments about the False Claims (qui tam) lawsuit He says it doesn't have merit and that's why he's going to try to represent the county prosecutors. A False Claims lawsuit is brought by a private person "on behalf of the State of Indiana." It's sometimes called a "private attorney general" statute because it allows private citizens to do things that the Attorney General could, or some would say "should," be doing. The statute provides for a specific role for the Attorney General to 1) not intervene for the Plaintiff; 2) intervene for the Plaintiff and try to get it settled; 3) intervene for the Plaintiff and litigate it fully; and 4) intervene for the Plaintiff and asked that it be dismissed because it lacks merit. In fact under the qui tam law, #4 is the only way a case can be dismissed.

If Zoeller thinks our lawsuit lacks merit, he could simply intervene for the Plaintiff on behalf of the State of Indiana and ask that it be dismissed following the dismissal procedure contained in the qui tam statute. The fact Zoeller doesn't want to do this reflects the fact he is trying to curry favor with his "clients," the county prosecutors, rather doing what is in the best interest of the State of Indiana. (I am not aware of a single case in the country where a state attorney generalor U.S. Attorney General represented a defendant in a qui tam brought on behalf of government.) In doing so Zoeller ignores the fact that he also represents the Indiana General Assembly which passed the law the prosecutors aren't following. He also represents the Treasurer's Office which keeps the common school fund, the Department of Education and he should feel a responsibility to the school districts, subdivisions of state government, that are being deprived of much-needed cash.

At the same time he emphasizes the importance of public safety, Zoeller suggests the legislature make clear that there should be a proportional split of forfeiture proceeds with between public safety and the schools. His proposed reform belies his claim that these prosecutors simply made an innocent (non-fraud) mistake - that they didn't know the law required them to cough up money for the common school fund. If Zoeller believes in the primacy of law enforcement and that the law could logically be interpreted to let the prosecutors keep all the money, he could simply ask the General Assembly to clarify the law that the prosecutors and law enforcement get to keep 100% of the cash.

Zoeller's claim that the prosecutors' office innocently misinterpreted the law is beyond belief. Some county prosecutors are making the incredulous claim that "law enforcement costs" in IC 34-24-1-4 refers to ALL law enforcement costs in the county, not just the law enforcement costs related to the particular action. Therefore, the reasoning goes, no money is owed to the common school fund until such time as the the proceeds from civil forfeitures cover more than 100% of every dime spent in law enforcement, which includes the entire police and prosecutor's budget for the county. That is obviously NEVER going to happen. At best, civil forfeitures will only cover a small percent of the amount a county spends on law enforcement.

Such an interpretation would administratively wipe out the legislative requirement that the excess civil forfeiture proceeds goes to common school fund. It gives prosecutors and law enforcement a convenient excuse to pocket 100% of the loot they take off criminal suspects. It is so bad in Marion County that officials here don't even make a pretense of figuring law enforcement costs on the $1.6 million or more seized in civil forfeiture every year. Rather they simply have a set percentage that each law enforcement agency gets to keep on every civil forfeiture. The Common School Fund share under the Marion County Formula? Zero.

In the next blog entry I will discuss how the AG's reaction to this lawsuit is nothing new - that the AG's office under Carter/Zoeller has a long history of targeting whisteblowers who dare point out legal violations by public officials.

UPDATE: Since I wrote this, I have learned that the Howard County Prosecutor is using a separate state RICO forfeiture statute as the vehicle for all his forfeitures. Of course 99% of the forfeitures have nothing to do with the a corrupt business influence charge, which is what the RICO forfeiture statute applies to. One wonders whether AG Zoeller "investigated" this outlandish abuse of the law and found it a "reasonable" interpretation.

1 comment:

varangianguard said...

Governor Daniels surely must see that the aggregate behaviors of some of his senior political appointees and closely-tied elected State officers have doomed any chance he might have had of running successfully as a candidate for the Presidency?

Then again, kool-aid seems to be a powerful hallucinogen.