On March 15, 2018, Curtis Hill, the Indiana Attorney General, attended a gathering at a bar in Indianapolis to celebrate the end of the recent session of the Indiana General Assembly. His interactions with four women, including an elected State Representative, resulted in accusations that he inappropriately touched the women.

     The women complained to the leaders of the Indiana House of Representatives and the Indiana Senate. The investigation there was eventually leaked to the press, and that resulted in the appointment of a Special Prosecutor to determine whether to bring criminal charges against Hill.

     On October 23, 2018, the Special Prosecutor issued his report, and concluded that no criminal charges will be brought. I am writing now to discuss that report, and to highlight how important a prosecutor’s charging decision can be, and how much leeway a prosecutor has to promote or prevent a just outcome. The report can be viewed here.

     The report discusses what goes through a prosecutor’s mind when faced with an investigation. He must decide, first whether there is probable cause that crime was committed, and second whether that means a crime should be charged. The report correctly states “such decisions should never be made haphazardly or out of any consideration other than what the facts present. These decisions must be made with a neutral eye - by looking to defined standards . . ..” The report appropriately says the Attorney General’s “status as an elected official should neither protect him from prosecution nor enhance the likelihood that he is prosecuted. . . . What is fair for Curtis Hill must also be fair for John Q. Citizen, and vice versa.”

     The report then goes astray, in my opinion. It talks about how the prosecutor must consider, in addition to whether there is probable cause, whether the case can be won in court. The Special Prosecutor jumps through some difficult logical hoops to conclude that he should not charge any crimes because the case can’t be won.

     He first talks about the two possible crimes that could be charged: Battery and Sexual Battery. He concludes that neither charge is appropriate.

     The Battery statute is Ind. Code § 35-43-42-1, available at http://iga.in.gov/legislative/laws/2018/ic/titles/035/#35-42-2. A person commits Battery if he “knowingly or intentionally touches another person in a rude, insolent, or angry manner.” The Special Prosecutor states that to prove the crime, the defendant must have “intended” to commit the crime. He points to Hill’s statements that “his touches were not intended to be disrespectful, sexual in nature or rude.”

    The Special Prosecutor completely ignores the alternative proof that Hill “knowingly” touched his victims in a rude, insolent, or angry manner. It is not as difficult to prove his actions were done “knowingly.” Every day, judges in Indiana instruct jurors that “A person engages in conduct ‘knowingly’ if, when he engages in this conduct, he is aware of a high probability that he is doing so.” This means if Hill was awake when he touched the women, and he was aware he was touching them, that satisfies that part of the crime, even if Hill did not “intend” his touches to be disrespectful or unwanted. The law is designed that way to protect victims from the boorish behavior the perpetrator surprisingly does not know is offensive.

     The Special Prosecutor also talked about the potential Sexual Battery charge. That crime is defined at Ind. Code § 35-42-4-8, available at http://iga.in.gov/legislative/laws/2018/ic/titles/035/#35-42-4-8. “A person who, with intent to arouse or satisfy the person’s own sexual desires or the sexual desires of another person touches another person when that person is compelled to submit to the touching by force or the imminent threat of force . . . commits sexual battery.” The Special Prosecutor suggests he can’t prove Hill used force to compel his sexual behavior. Although I don’t approve of this logic, there is support from the Indiana Court of Appeals. Take a look at Perry v. State, 962 N.E.2d 154 (Ind. Ct. App. 2012), available at https://www.in.gov/judiciary/opinions/pdf/02291203jgb.pdf. The court said “the fear experienced by the victim must precede the touching for the fear to indicate that the victim was compelled to submit to the touching by force . . ..” This leads to a result that does not protect victims from sexual touching.

     What is instructive about the Perry case is that the Sexual Battery conviction was overturned, but the Court of Appeals convicted Perry of the same regular Battery crime that the Special Prosecutor says can’t be proved.

     The Special Prosecutor talks a great game about treating all potential defendants equally and fairly. He says the public official should get no special treatment, but also should not be held to a higher standard. I don’t want to weigh in on whether our elected officials should be held to a higher standard, except to say they set an example for the rest of us, and if they are seen to be privileged or protected, regular folks will want the same break.

     What gripes me about his logic, is that it does not square with my 33 years of experience as a criminal defense attorney. I have seen some lame charges brought on the thinnest evidence for the worst reasons. Most charges are brought based on the probable cause standard with no regard to whether the case can be won at trial. The prosecutor gets away with this, because most cases are settled by a plea agreement. Many defendants simply give in, because they need to get out of jail. Many can’t afford a good attorney, and must settle for the overworked public defender assigned to them. I am asking myself, “Where is all that lofty discussion of fairness and worry about expense and waste of resources with my regular clients?”

    The Special Prosecutor talks about how alcohol flowed freely at this event. He then uses intoxication to excuse Hill’s offensive behavior, but then uses intoxication to diminish the victims’ credibility. This is picking winners and losers, and for all the wrong reasons. Going back to those instructions judges give jurors every day, “Voluntary intoxication is not a defense to a charge of Battery. You may not take voluntary intoxication into consideration in determining whether the Defendant acted knowingly.”

     The Special Prosecutor tries to say he believes the victims. He said, “Their motives appeared sincere and I found all to be credible in their belief that Hill touched them in a way that was inappropriate.” But he ultimately sides with Hill, even after acknowledging that Hill “did not deny certain touching occurred.” There were four victims with similar accounts. The Special Prosecutor claims he interviewed 56 witnesses. All of this seems not to measure up to the word of one Curtis Hill who admitted he drank an amount of alcohol the Special Prosecutor described as “significant.”

     This Special Prosecutor was not elected. He was appointed because of an apparent conflict the Marion County Prosecutor had. The victims and the public now have no recourse if they do not approve how this decision was made.

     Regular prosecutors, on the other hand, are elected. We, as voters, must understand how much power we are giving these public servants. For a good discussion of this power, check out John Oliver’s discussion at https://www.youtube.com/watch?v=ET_b78GSBUs. When we vote for a prosecutor, we should ask whether that candidate will bring the right charges against the right people for the right reasons.

     Voters can be assured that I will not shy away from tough choices just because someone powerful is being investigated. After having represented clients who have been raped and sexually molested, I will not be quick to dismiss reports from women victims and make excuses to diminish their credibility.