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Friday, August 21, 2009

Ind. Courts - Observations on: Verdict in road-rage shooting trial in Clark County

This ILB entry from earlier today included this quote from the LCJ story:

At Thursday's sentencing hearing, [Judge] Moore told the packed courtroom that while preparing for deciding on a sentence, he had his staff drive the stretch of 10th Street where the problems had escalated and count the number of driveways and other possible escape routes that either motorist could have taken.

There were 48 such opportunities, the judge said. And Moore said he went to see the gas station next to the location where the shooting took place. He said Parrish had “two options to pull into that driveway before she chose to pull that gun.”

Given my recent ILB entries on Ind. Code of Judicial Conduct Rule 2.9(C), including this one from Aug. 20, I asked IU Law Professor Joel Schumm for his observations. He responded:
Although the evidence rules don't apply at sentencing, Evid. R. 101(c)(2), the judicial canons or code of conduct do. When judges gather evidence on their own, partiality concerns can arise. What is the defense lawyer supposed to do? Object and ask for a continuance to go count the driveways or question the court employee who gathered the evidence?

Hulfachor v. State, 813 N.E.2d 1204, 1207-08 (Ind. Ct. App. 2004): "Nevertheless, we strongly caution trial courts against looking outside the record for evidence in a sentencing hearing. Obviously, such a practice deprives a defendant of the opportunity to review the information and refute its accuracy. By not placing the information in the record, the trial court created a risk that sentencing would be based on inaccurate or irrelevant information. Therefore, trial courts should look only to evidence properly placed in the record when making sentencing determinations."

[More] Just a few minutes after writing the above, Matt Thacker's afternoon story in the Jeffersonville News and Tribune was posted. Some quotes:
[Judge] Moore had harsh words for Mosier and Parrish, saying that the two appeared to be in competition as they drove down 10th Street the day of the shooting.

“Both of these adults on the roadway that day were engaged in conduct that was not that of mature adults,” Moore said.

He said he drove down 10th Street after the jury trial concluded and counted 48 places either Mosier or Parrish could have exited to avoid the confrontation, and he even asked a staff member to drive down 10th Street and check his counting.

Moore said he also sat in the parking lot at Thorntons twice in the past month watching traffic in order to visualize what might have happened that day.

He found it “troubling” that Parrish never drove into the Thorntons parking lot and said Parrish “put lives at stake and endangered people on the roadway that day, maybe even people in the next lane.”

[Brian Butler, Parrish’s attorney] said he had never heard of a judge going out to the scene of a crime, but was not aware of any rule prohibiting judges from doing that.

Posted by Marcia Oddi on August 21, 2009 12:43 PM
Posted to Ind. Trial Ct. Decisions