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Monday, September 06, 2010
Courts - "Jefferson County court-video failures cause trials, hearings to be lost"
The ISBA Appellate Section held a CLE on Oct. 28, 2008 titled "Welcome to the 21st Century: An Appellate Perspective." One session was on the impact of digital records on appellate review. The Honorable Sara Walters Combs, Chief Judge of the Kentucky Court of Appeals, made a presentation on the Kentucky record on review. The records on appeal in Kentucky included "everything filed with the clerk of the trial court, together with the official (at that time) videotape recordings." Unless otherwise ordered by the court, no transcript of court proceedings was to be made a part of the record on appeal.
Apparently some of the Kentucky trial courts have now moved to CD/DVDs (digital video recordings), rather than videotapes. Jason Riley of the Louisville Courier Journal reported Sept. 3, 2010 in a long story:
Nearly three months after defense attorneys and prosecutors held a suppression hearing in the Cecil New murder case, they had to do the whole thing all over again recently — calling in the same detective, asking her the same questions and spending more than an hour re-creating the record.The ILB has had a number of entries on missing or unfinished court transcripts. Start here for those. But nothing like the Kentucky failure.The reason?
Jefferson Circuit Court's digital audio recording equipment failed to properly record the first hearing in Judge Judith McDonald-Burkman's courtroom, capturing video, but no sound.
In fact, the Jefferson Audio Video System, or JAVS, has failed to record audio in several courtrooms, meaning dozens, and perhaps hundreds, of hearings have been silently recorded, with no way for attorneys, defendants or victims to review exactly what was said.
In McDonald-Burkman's courtroom, the audio went unrecorded for more than two weeks in May without anyone knowing.
In Judge Charles Cunningham's courtroom, about a month of proceedings were recorded without audio last fall, and is being cited as grounds for an appeal of a jury conviction in an assault and unlawful imprisonment trial.
In another instance, Judge Susan Schultz Gibson declared a mistrial in a 2008 robbery case when she learned the audio of the testimony had not been recorded.
And Judge James Shake said he faced a possible retrial after an entire criminal trial was lost in the last year.
“It's ridiculous,” Shake said. “The record is crucial. It's the most crucial aspect of what we do.”
Some judges are fuming about the many problems with the digital system.
“This is a nightmare,” McDonald-Burkman said during a hearing after the testimony was lost in the high-profile New case, in which the defendant is accused of killing 4-year-old César Ivan Aguilar-Cano. “… It's been an issue with every court.”
Despite the judges' frustration, the Administrative Office of the Courts, which runs Kentucky's court systems, said recently that it did not know of any recording problems in Jefferson Circuit Court, other than the New case.
Another issue, discussed at the end of this April 22, 2007 ILB entry and this April 3, 2007 entry, looked at "Can a digital CD take the place of a trial transcript? Can a "transcriptionist" take the place of a court reporter?"
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Courts in general
Environment - Still more on: Superfund used to justify $28,000 bill to fight fire at couple's home
Remember this ILB entry from March 23, 2010? The ILB may have missed some more recent news on the issues raised in the entry, but was reminded of the problems when reading this lengthy Sept. 3, 2010 NY Times story by Christopher Jensen. Some quotes:
In 2008, the city’s [Salina, Kan.] fire department received permission to start billing people involved in accidents to help cover costs, said Mayor Aaron Peck.ILB: (1) Can anyone direct me to the Indiana law referenced above? (2) There is nothing in the NYT story equivalent to the $28,000 billed by the fire department to a New Castle family that lost their home to fire (reported by 6News in February) . I've not seen an update on this story.In about two years the department has sent out bills for 63 accidents, averaging about $390 each. He said the city sent about $10,000 a year in bills and received payments amounting to about half that much. The rest of the money is lost to the city because some people refuse to pay and some of the money goes to a billing agency.
The billing services make money by taking a portion of the funds they collect. “The average is 10 percent, and if they don’t get paid, we don’t get paid,” said Ms. Moore of Cost Recovery.
Rick Benner, chief financial officer for Fire Recovery, said that for his company about 20 percent would be “a fair representation.”
Billing agencies like these have made it easier for fire departments to charge for services, and that has the effect of encouraging more departments to send bills to motorists involved in crashes, said Mr. Johnson of the fire chiefs’ association.
The insurance industry argues that billing companies trying to drum up new business are a main reason the practice has been spreading.
But Mr. Benner says Fire Recovery is simply trying to help departments avoid service cuts.
Typically, departments send billing firms copies of accident reports and information on how many people and how much equipment responded. On average, the bill is about $200 for police and $600 to $800 for fire departments, Ms. Moore said. * * *
After adopting such programs, some jurisdictions — including Radnor Township, Pa. — later backed off in response to complaints from residents and visitors, news reports and lobbying by the insurance industry. In recent years 10 states have prohibited such collections, according to the property casualty association: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Missouri, Oklahoma, Pennsylvania and Tennessee. But some of those prevent only the police, as opposed to fire departments, from charging fees.
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Environment
Environment - "Unsolved Coal Ash Problem" [Updated]
Here is an editorial from the Sept. 5, 2010 NY Times - a quote:
Last Monday, the E.P.A. held the first in a series of regional hearings on two quite different proposals governing how coal-fired power plants dispose of waste.[Updated 9/8/10] "New coal ash rules could affect Gibson Generating Station" is the headline of a long story by Bill Staub in the Evansville Courier & Press.One proposal, favored by public-interest groups and by agency scientists, would replace a patchwork of uneven — and in many cases weak — state regulations with new national standards. It would formally designate coal ash as a hazardous waste under federal law, require industry to phase out porous sludge ponds, replace them with sturdy, leak-proof facilities, and take other protective steps.
The competing proposal would establish federal guidelines for disposal but leave enforcement to the states. It would also preserve coal ash’s status as a nonhazardous substance. Though the proposal barely improves on the status quo, the Office of Management and Budget — after heavy lobbying by the coal industry — agreed to give it equal billing in the public hearings.
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Environment
Ind. Decisions - "Union ordered to pay taxes on banquet hall"
6787 Steelworkers Hall, Inc. v. John R. Scott, Assessor of Porter County, a decision issued by the Indiana Tax Court on Sept. 2, 2010 (ILB summary here), is the subject of a story in the Sept. 4th Gary Post-Tribune, reported by Teresa Auch Schultz. Some quotes:
A United Steelworkers local lost its property tax appeal and will have to pay taxes on its banquet hall, according to a state ruling.The Indiana Tax Court said in its order that Local 6787 had not proven that the facility, which is connected to its union hall at 1100 Indiana 149, was mainly used for educational and charitable reasons.
The banquet hall was finished in 2005, several years after the main union hall was completed. The union had asked that the entire property -- valued at $3.5 million -- be tax exempt and Porter County granted most of the request.
It kept the banquet hall out of the agreement, though, signaling that the union would still have to pay property taxes for that building.
According to the Tax Court order, officials with the union argued that although they rented the banquet hall for weddings and other events, they also used it for Ivy Tech Community College cooking classes for union members and let other not-for-profit groups use it for free.
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Ind. Tax Ct. Decisions
Ind. Law - "New law costing county police: Sheriffs, lawmakers disagree on correct interpretation"
That is the headline to this story today by Erin Blasko of the South Bend Tribune. Some quotes:
Between January and July of this year, the St. Joseph County Police Department paid about $100,000 to local hospitals based on the questionable interpretation of a state law regarding medical care for people detained in the county and suspected of a crime.Here is the legislation at issue, HEA 1182 (PL 80) from the 2009 session of the General Assembly.Public Law 80, enacted July 1, 2009, establishes rates at which counties in the state must reimburse health care providers for services provided to "a person who is subject to lawful detention by a county sheriff."
According to Assistant Chief Bill Redman, county attorney Pete Agostino has interpreted that phrase — "subject to lawful detention by a county sheriff" — to mean all people detained in the county and suspected of a crime, regardless of the agency involved.
Agostino explained: "There is a different statute in the state that obligates the sheriff to take into detention subjects detained by other agencies ... so if you read that in conjunction with the language in (Public Law 80), in my opinion, it doesn't seem to be referring only to subjects arrested by the sheriff."
As a result, for the past 20 months, whenever a police agency in the county — South Bend, Mishawaka, Roseland, etc. — detains a person who needs medical care but cannot pay, the county police department picks up the tab as prescribed under the law — either 104 percent of the Medicare reimbursement rate or 65 percent of cost. * * *
But not everyone agrees on the correct interpretation of the law, and even its author, state Rep. Sandy Blanton, D-Orange County, admits the language in it is not entirely clear with regard to the definition of "lawful detention."
"The intent was to save taxpayers money," Blanton said, explaining the reimbursement rates laid out in the law represent a savings for most county police departments. "However, it's my understanding that some counties have interpreted 'lawful detention' as picked up (by police), and some have interpreted it as booked into a facility."
Similarly, state Sen. Jim Arnold, D-LaPorte, said, "I suppose different people interpret it (the law) differently, but I can say that when the law was conceived, it was meant to reduce sheriffs' costs." A former LaPorte County sheriff, Arnold co-sponsored the law.
Blanton said she is considering proposing an amendment to the law during the upcoming January session "to tweak the language and make it a little more clear."
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Indiana Law
Ind. Law - Obituary of attorney Rabb Emison, 85, of Vincennes
From the Sept. 5, 2010 Indianapolis Star, the obituary of Rabb Emison 85 of Vincennes, Indiana.
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Indiana Law
Courts - "Florida has set up foreclosure-only courts to reduce a huge backlog, but borrowers’ lawyers are critical of the process"
Although about Florida, this long NY Times article reported by Gretcheen Morgenson and Geraldine Fabrikant recounts the various horrors of the legal process, judges' errors, paperwork failures, and the like, many of which are likely occurring everywhere.
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Courts in general
Ind. Law - More on "Democratic nominee for Lake County assessor soon may learn the outcome of a state investigation into whether she violated state law by holding driver's licenses in both Indiana and Michigan"
Updating this ILB entry from June 6, 2010, the Gary Post-Tribune published an opinion piece on Sept. 5th that began:
Lake County assessor candidate Carol Ann Seaton has run afoul of bureau of motor vehicle regulations in Indiana and Michigan. She held driver's licenses in both states simultaneously, something that isn't allowed. In Indiana, she gave her address as being in the 2300 block of Adams Street, Gary, while in Michigan she gave her address as a Union Pier rental house owned by a Chicago couple. Her Ford sedan has Michigan plates tied to the same address. Michigan has revoked her driver's license.Now the Indiana Bureau of Motor Vehicles wants her to prove she's an Indiana resident. It has suspended her driving privileges for a year, a ruling she plans to appeal.
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Indiana Law
Ind. Courts - "State orders disbarred attorney to pay its costs"
Updating this list of earlier ILB entries, Jeff Parrott of the South Bend Tribune reported Sept. 5th - here are some quotes from the long story:
The Indiana Supreme Court has ordered a disbarred South Bend attorney to repay the state more than $17,000 it spent to investigate misconduct charges against him.Rod Sniadecki must reimburse the state for more than $12,000 it paid a hearing officer and court reporter who worked on the case, according to court records filed this week. He also must pay nearly $5,000 it cost the Supreme Court's Attorney Disciplinary Commission to investigate and prosecute the case.
The Supreme Court in April disbarred Sniadecki for attorney misconduct. * * *
[M]any of his former clients say he still owes them money they paid for services he never delivered.
About 80 people have inquired about receiving payments from the Indiana State Bar Association's Client's Financial Assistance Fund, and 25 of them have followed through with applications, said ISBA spokeswoman Carissa Long. The fund is composed of money that member lawyers pay as part of their annual dues.
"This is not a government program, but rather, just a bunch of lawyers doing the right thing," said Long, noting that Sniadecki was not an ISBA member. "There is no claim of right to money."
The 25 applications thus far is a record-high for the fund, Long said. Because the fund's rules say no more than $50,000 can be paid out to all clients of a particular attorney, the fund's board has decided to wait until Sept. 30 to start reviewing the claims.
Those 25 people, combined, already have claimed to be owed more than the $50,000 maximum, Long said.
"We know there are more people out there," Long said. "In order for us to evenly distribute this money, we have to know exactly how many claims we have."
Long noted that if many more applications come in, the Sept. 30 deadline might be extended.
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Indiana Courts
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 9/6/10):
Thursday, September 9th
- 9:00 AM - Killbuck Concerned Citizens Assoc., et al. v. J.M. Corp., et al (
48S00-1003-PL-158) - The Madison Superior Court ruled that IC 13-20-2-11, which relates to landfill permits, was unconstitutional and entered summary judgment for the owners, Appellees J.M. Corporation and Ralph Reed. In this civil direct appeal, nearby residents assert the trial court erred in declaring the statute unconstitutional and should have entered summary judgment for them. Appellees also raise several cross-appeal issues relating to the statute.
Next week's oral arguments before the Supreme Court (week of 9/13/10):
Next Monday, September 13th
- 12:00 PM - Cassie Pfenning v. Joseph Lineman, et al. (
27S02-1006-CV-331) - After Cassie Pfenning was struck by a golf ball while driving a beverage cart on a golf course, she filed a complaint for negligence against her grandfather who invited her to the golf event, the golfer who hit the ball that struck her, the Elks County Club where the event was held, and Whitey's 31 Club Inc., which sponsored the event. The Grant Superior Court entered summary judgment for all the defendants. The Court of Appeals affirmed. Pfenning v. Lineman, 922 N.E.2d 45 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: This argument will be held at Indiana University Maurer School of Law; Bloomington, IN]
ILB - In this 2-1, 2/15/10 COA opinion (ILB summary here) Judge Kirsch's dissent begins:
Hmmm. After being abandoned by her grandfather and his sister, in whose care she had been entrusted, a sixteen-year-old girl, without training or experience in golf course safety or etiquette, is injured at a golf outing sponsored by a bar, while she is driving a beverage cart loaded with beer dispensed by one of the bar's employees. Surely, there is a duty here someplace.
Next Thursday, September 16th
- 9:00 AM - Tyrus D. Coleman v. State of Indiana (
20S03-1008-CR-458) - Coleman was charged with murder for killing one person, and attempted murder for shooting another person. At his first trial, a jury found Coleman not guilty of murder, but the jury was unable to reach a verdict on the attempted murder charge. Coleman was retried on the attempted murder charge and found guilty by a jury in the Elkhart Circuit Court. A divided Court of Appeals reversed the conviction, holding that the doctrine of issue preclusion barred the re-trial. Coleman v. State, 924 N.E.2d 659 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This March 31, 2010 opinion is the subject of this ILB entry, followed by this April 2, 2010 story in the Elkhart Truth headed "Ruling will release Elkhart man from prison."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 9/6/10):
Wednesday, September 8th
- 1:30 PM - In Re: The Matter of Power of Attorney of Xenia A. Miller (03A01-0912-CV-586) - Accounting matters involving the propriety of interrelated acts performed by the Fiduciaries: when expending funds as attorneys-in-fact and when authorizing the release of funds from a trust for expenditures. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
Thursday, September 9th
- 10:00 AM - The Village Pines at the Pines of Greenwood Homeowners Association, Inc., v. The Pines of Greenwood Homeowners Association, Inc. (41A01-0912-CV-568) - The Greenwood City Council approved The Pines of Greenwood ("The Pines") as a Planned Unit Development ("PUD"), enacting an ordinance to that effect. Thereafter, The Pines was developed, and two separate homeowners' associations were established therein: The Village Pines at the Pines of Greenwood Homeowners' Association, Inc. ("VP HOA"), and The Pines of Greenwood Homeowners' Association, Inc. ("POG HOA"). Subsequently, a dispute arose between the residents pertaining to the use of certain areas within The Pines. Pursuant to the terms of the ordinance, did the trial court err when it did not (1) enjoin enforcement by POG HOA of its covenants limiting the use of its common areas; (2) create covenants establishing a master homeowners' association for The Pines; and (3) order reformation of the existing covenants for The Pines' two homeowners' associations? The Scheduled Panel Members are: Judges Darden, Bradford and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 9/13/10):
Next Monday, September 13th
- 2:00 PM - Belle City Amusements, Inc. v. Doorway Promotions, Inc. (35A05-0912-CV-711) - On July 27, 2007, Belle City Amusements, Inc. ("Belle City") and Doorway Promotions, Inc. ("Doorway") entered into an agreement whereby Belle City agreed to provide midway entertainment in 2008 and 2009 for a festival being promoted by Doorway. After the 2008 festival, Belle City informed Doorway that it would not perform the remainder of the agreement. On March 2, 2009, Doorway filed a complaint against Belle City for breach of contract. Following a bench trial on November 12, 2009, the trial court awarded Doorway damages in the amount of 1) $17,500.00 for the loss of income in 2009; 2) $70,000.00 for the future loss of income in the years 2010, 2011, 2012, and 2013; and 3) $24,000.00 for the 2009 midway-site rental fee. Belle City now appeals. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Crone. [Where: Court of Appeals Courtroom (WEBCAST)]
Next Tuesday, September 14th
- 1:30 PM - Alesa Pack v. Indiana Family and Social Services Administration (89A05-1004-PL-240) - Alesa Pack sought Medicaid benefits on the basis of claimed physical and psychiatric disabilities. The Indiana Family and Social Services Administration denied benefits. On appeal, Pack asserts that the ALJ's decision was made without reference to uncontroverted evidence, misstated the record, and is unsupported by substantial evidence. The Scheduled Panel Members are: Judges Riley, Kirsch and Bailey. [Where: Court of Appeals Courtroom (WEBCAST)]
Next Thursday, September 16th
- 1:00 PM - Anthony Parish v. State of Indiana (02A03-1002-CR-74) - During a traffic stop, a Fort Wayne Police Department officer searched the locked glove box of the car driven by Appellant Anthony Parish, while Parish was handcuffed and in police custody. Inside the glove box, the officer found a handgun, a scale, and marijuana. These items were seized during the stop, but Parish was not arrested for conduct involving the items at that time. Parish was later charged with murder, felony murder, robbery, and two counts of carrying a handgun without a license, all pertaining to the death of a third party in another incident that occurred prior to this arrest and search. The trial court in the murder case denied Parish's motion to suppress the evidence found in the glove box and overruled his trial objections to the admission of the evidence. Based in part on the admission of the glove box handgun as the murder weapon, Parish was found guilty as charged. On appeal, Parish claims that the search of his glove box was not based on a reasonable fear for officer safety and therefore exceeded the scope of the officer's authority to search the car. The Scheduled Panel Members are: Judges Riley, Mathias and Bradford. [Where: Wynne Moot Courtroom, Indiana University School of Law, Indianapolis]
Next Friday, September 17th
- 1:30 PM - Maurice Porter v. State of Indiana (20A03-0912-CR-570) - Following a jury trial, Maurice Porter was convicted of two counts of Class C felony Nonsupport of a Dependent. Porter had previously been convicted of two counts of Class D Nonsupport of a Dependent. He claims that the same arrearage was used as the basis of the current and prior convictions in violation of double jeopardy principles. He also alleges that without the previous child support arrearage, the evidence is insufficient to sustain his two Class C felony convictions. The Scheduled Panel Members are: Judges Kirsch, Bailey and Brown. [Where: Franklin County Courtroom, Brookville, Indiana]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Upcoming Oral Arguments