« Courts - University general counsels as appellate judges | Main | Ind. Gov't. - Proposed city ordinance to target "predatory" towing practices »

Tuesday, May 17, 2011

Ind. Decisions - Still more on "COA rules against judge's decision on testimony in child molesting case"

Among the cases granted transfer last Friday by the Supreme Court was State of Indiana v. Andy J. Velasquez, II - a Feb. 22, 2011 opinion.

Here is a March 4, 2011 ILB entry on the opinion, quoting a story by Laura Lane of the Bloomington Herald Times.

And here is a follow-up entry quoting IU-Indy Law Prof Joel Schumm explaining how the prosecutor could appeal a not guilty decision, as had happened in this case:

The legislature has created a mechanism for prosecutors to challenge unfavorable rulings that result in acquittals. Double jeopardy prevents a retrial, but the guidance could be useful in the future (especially if a judge is ruling on the same issue in future cases). I'm sure the court got very good briefs from the lawyers in this case (Joby Jerrells and Tom Schornhorst.)

Unfortunately, sometimes no one files an appellee's brief. If someone is acquitted and can't be retried, why pay a lawyer to defend an appeal that makes no difference to the individual? With briefs from just one side, some less-than-ideal law can be made.

As it turns out, because in this case the Supreme Court has now granted transfer, we now have the opportunity to review the briefs. Here are the documents filed with the Supreme Court:Plus we are additionally fortunate today to have another story by The Herald-Times' Laura Lane, laying out the details:
The Indiana Supreme Court will hear an appeal in a Monroe County case in which a man accused of molesting an 8-year-old was acquitted after a trial during which the judge limited testimony from people the girl told about the abuse.

The Indiana Court of Appeals ruled in February that Monroe Circuit Judge Teresa Harper should have allowed more testimony from several witnesses during the trial. Andy Velasquez was found not guilty of two child molesting charges, which cannot be re-filed.

But after reviewing the case and legal briefs filed by both sides, the state’s highest court has set aside the appeals court decision and will reconsider the evidentiary matters of the case on its own. The court will review the trial transcript, written filings and also could decide to hear oral arguments from the attorneys.

F. Thomas Schornhorst, a retired Indiana University law professor, was appointed a special public defender to represent Velasquez’s side in the matter. Attorney Joby Jerrells of Bloomington is handling the case for the state.

There are two legal issues to be decided: whether the judge made the right decision in excluding hearsay evidence from a social worker and if she used proper discretion limiting opinions a psychologist would have testified to.

During Velasquez’s trial in February 2010, Harper and deputy prosecutor Rebecca Veidlinger sparred over their different interpretations of what the law allowed as far as evidence and testimony about the alleged abuse. Harper ruled before the trial began that the evidence would not be permitted, but Veidlinger challenged Harper’s ruling in court.

The Monroe County Prosecutor’s Office pursued the appeal, even though it cannot change the outcome in the Velasquez case. Chief Deputy Prosecutor Bob Miller said the high court’s ruling will clarify what is allowed and set the standard for future cases.

Velasquez could have faced up to 50 years in jail had he been convicted.

Posted by Marcia Oddi on May 17, 2011 04:23 PM
Posted to Indiana Transfer Lists