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Thursday, August 30, 2007
Ind. Courts - Another case today of missing court records
Two missing records stories in one today!
Rebecca S. Green of the Fort Wayne Journal Gazette reports that:
The mother of a convicted murderer sits in a jail cell because she refused a judge’s order to return the official court record of her son’s trial – which she obtained from the defense attorney preparing her son’s appeal.Adela Favela, 58, of the 2800 block of Westbrook Drive, likely will remain in the Allen County Jail until a hearing Friday, when Allen Superior Judge Fran Gull will again ask what happened to the official transcript and evidence from the September murder trial of her son, Daniel Favela.
The official court record for this case has 13 volumes. It includes transcripts of all the testimony given at the trial, as well as transcripts of pretrial hearings and the evidence produced during the four-day jury trial, Gull said.
The experience is new for Gull, who rarely uses jail as a punishment for being found in contempt of court.
“It’s not a power that we exercise often,” she said. “Usually folks comply with court orders.”
The experience is also new for the Allen County Clerk’s Office and the Indiana Court of Appeals – where Daniel Favela’s case would be reviewed.
“In the court’s living memory, nothing like this has ever happened before,” said Joe Merrick, staff attorney for the state appellate court. * * *
According to remaining court records, which include the clerk’s office file of motions and other filings, Gull issued her first order to Adela Favela to return the trial records Aug. 7.
[Defense attorney Robert] Gevers had checked out the file, given it to Adela Favela and, “(she) has refused their requests to return all volumes either to the office or the clerk’s office,” according to court records.
Tuesday morning, Gull ordered the Allen County sheriff to hand-deliver a second copy of the order demanding the return of the files; and if Adela Favela refused to comply, Gull ordered her arrest, according to court records.
Adela Favela was booked into the jail at 11:30 a.m. Tuesday. * * *
Indiana appellate court procedure allows both sides in a case to have absolute, unfettered access to the records related to the trial.
The appellate court reviews issues of law only from the official court records and then answers specific legal questions raised in the initial trial or by the trial court’s decision. The appellate court cannot review any new evidence.
These requirements make the transcripts and evidence critical.
If Adela Favela does not return the massive court file – or it has become lost or damaged – the local court, prosecution and defense can re-create the record using copies of the exhibits and re-transcribing the audio recordings from the hearings, Merrick said.
The re-created record would be considered with the same importance as the original, he said. However, Gull said actual trial evidence cannot be redone or re-created.
So now, everybody waits for Adela Favela to hand over the file.
Posted by Marcia Oddi on August 30, 2007 08:09 AM
Posted to Indiana Courts