The Indiana Law Blog: March 12, 2012 Archives

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Monday, March 12, 2012

Ind. Decisions - Supreme Court issues public reprimand to Carl J. Brizzi

In In the Matter of Carl J. Brizzi, a 5-0, 13-page, per curiam disciplinary action filed this afternoon at 3:31 PM, the Court writes:

We find that Respondent, Carl J. Brizzi, engaged in attorney misconduct by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing adjudicative proceedings and a substantial likelihood of heightening public condemnation of the criminal defendants. For this misconduct, we find that Respondent should receive a public reprimand. * * *

The Court concludes that Respondent violated Indiana Professional Conduct Rules 3.6(a) and 3.8(f) by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing an adjudicative proceeding and a substantial likelihood of heightening public condemnation of the criminal defendants. For Respondent's professional misconduct, the Court imposes a public reprimand.

The actions charged related to the Bruce Mendenhall case, the Desmond Turner and James Stewart (Hamilton Ave. slayings) cases.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "'This boy is beat to death' Caller in May pleads 10 times for immediate intervention at Sturgis home."

Here now is the South Bend story the IDCS went to court to try to suppress. It is reported by Virginia Black and Mary Kate Malone. The long story begins:

An anonymous caller to the centralized Department of Child Services hotline spent 20 minutes on May 27, 2011, detailing horrific abuse to 10 children at 1130 W. Washington St. — nearly six months before police found 10-year-old Tramelle Sturgis tortured and beaten to death in that home.

In the course of describing another child’s injuries that day that left the boy limping and bleeding in his abdomen, the caller urges a visit to the home that night to witness the abuse.

"Please go tonight. Please go," the caller repeats. "I’m not saying this just to be saying this. Please go. Something got to be done."

And in the recording of the call that was placed at 9:54 p.m., the caller says, "If they go there right now, they’ll see how them kids is beat if they go there right now because I don’t want it to get on the news and the boy died and then everybody come forward and they gonna say, ‘Well, why did nobody come forward from before?’"

A judge ruled in The Tribune’s favor in a public records request opposed by DCS attorneys for copies of the hotline recordings and transcripts involving the Nov. 4 death of Tramelle Sturgis. The files were released to The Tribune this week.

Accompanying the story are links to an audio of the anonymous call, a timeline of what happened after the call, and a separate March 9th story on Judge Nemeth's ruling, that begins:

SOUTH BEND — A local judge ordered the release of phone records from the Department of Child Services’ child abuse hotline related to Tramelle Sturgis and his family — ending weeks of legal efforts by DCS to keep them out of the public realm.

The records, which St. Joseph Probate Court Judge Peter Nemeth ordered released on Wednesday, included four audio recordings of hotline calls and accompanying transcripts.

Two weeks after 10-year-old Tramelle was killed, The Tribune filed a public records request to DCS, requesting access to all department reports related to the boy and his family.

Although DCS records are generally confidential, state law provides for a release of documents in cases where a fatality has occurred.

The Tribune subsequently received 21 pages of reports showing previous DCS involvement with the family, specifically the department’s determination that the Sturgis children were "well-cared for" — six months before Tramelle was found beaten to death in the family’s home at 1130 W. Washington St.

But DCS did not provide one key piece of information: records of phone calls from the child abuse hotline in Indianapolis, which are now recorded and stored at the centralized call center.

In January, DCS Director James Payne told The Tribune during an interview that every call made to the centralized child abuse hotline is recorded and "kept forever."

The Tribune then filed another records request, asking for audio files and transcripts of calls made to the hotline about the Sturgis family.

But the department denied the request, arguing the records were confidential.

Soon after, an amendment was abruptly inserted into pending legislation — Senate Bill 286 — that specifically exempts an "audio recording of a telephone call to the child abuse hotline" from disclosure.

The Tribune, represented by local attorney Jerry Lutkus, filed a motion for the records, arguing the files were in fact releasable under the same law that permitted release of the original 21 pages of documents.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Indiana Government

Ind. Courts - Further Update on IDCS v. South Bend Tribune [Updated at 3:04 PM]

The ILB hasn't received the AG's press release, but Tim Evans at StarWatch is writing, quoting the PR:

INDIANAPOLIS – A South Bend newspaper will be free to publish and post audio recordings from a child abuse prevention hotline, now that Indiana Attorney General Greg Zoeller has intervened and obtained a dismissal of a state agency’s appeal that had sought to prevent publication.

“Prior restraint of the news media publishing public records is inconsistent with the First Amendment. As the lawyer for state government, the Office of the Indiana Attorney General now asserts the legal position of the state that in the interest of openness and transparency, the publication of public records should not be halted,” Zoeller said today.

The Indiana Court of Appeals today was scheduled to hear the Indiana Department of Child Service’s appeal of a St. Joseph County court’s order that had granted access to audio recordings from a child abuse prevention hotline to the South Bend Tribune. DCS contended the recordings were confidential. On Friday, the Court of Appeals granted DCS’s motion and stayed the trial court’s order granting access to the audio files, until the issue could be argued by DCS and the Tribune at today’s hearing.

The DCS is authorized to represent itself with DCS attorneys in cases at the trial level, primarily in matters involving the interests of individual children. The Office of the Attorney General reserves the right to represent the state’s legal position in all legal cases, however, and today entered its appearance in the Court of Appeals and assumed representation of the case from DCS attorneys. The Attorney General then filed a motion to dismiss DCS’s appeal, meaning the St. Joseph County court’s earlier order releasing the information still stands, the Court of Appeals’ order of Friday can be dissolved and there no longer will be a legal obstacle to the audio files being published by the Tribune.

Zoeller said the longstanding authorization for DCS to provide its own legal representation will be reviewed, since the Attorney General’s office must represent the interests of state government where statewide or constitutional issues are involved. “An appropriate legal process exists where state agencies and the news media can resolve disputes over whether records are public, and we acknowledge the views of our DCS colleagues on this issue. Once records have been provided, however, the State of Indiana cannot and should not attempt to prevent publication but must instead rely on journalistic ethics,” Zoeller added. [ILB emphasis]

Read the rest of Evans' post here.

[Updated at 3:04 PM] The South Bend Tribune has now posted a brief story headed: "DCS drops child abuse hotline records fight; Tribune free to publish stories: Stories to be published as soon as appeals court acts on motion to dismiss case." ILB emphasis.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Indiana Courts

Courts - What if a judge accepts, then vacates a plea bargain and the defendant goes to trial? Is this double jeopardy?

See "A Bad Deal: Can a Court Force Trial After Accepting a Defendant's Guilty Plea?" by Nicholas J. Wagoner at Circuit Splits blog. A quote:

Sometimes the district court will accept a plea agreement, only to later vacate it and force the defendant to stand trial. Last week a district court identified a wide, well-established circuit split over whether this practice violates the Double Jeopardy Clause’s mandate that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The case, Cabrera v. Acevedo.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Courts in general

Law - Student loan bankruptcies a growing national concern; would cutting law school tuition prevent or lower student loan bankruptcies?

"Student loans seen as potential ‘next debt bomb’ for U.S. economy" is the headline to this March 10th story by Eric Pianin in the Washington Post that begins:

Bankruptcy lawyers have a frightening message for America: They’re seeing the telltale signs of a student loan debt bubble that is placing increased financial pressure on families struggling with their children’s mounting debt.

The blog Above the Law had a long entry March 9th by Christopher Danzig headed "How Stanford Law School Could Cut Tuition and Save the World." In it, the suggestion is made that: "Stanford Law School should immediately reduce tuition for its J.D. students by 30 percent."

The result predicted: "It would be a domino effect for large-scale law school tuition slicing."

ILB: Of course, Stanford is a private school with a large endowment.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Wells Fargo Bank, N.A., successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Update on IDCS v. South Bend Tribune

The ILB has learned that the Tribune and AG Zoeller (representing DCS) have resolved their issues, so there will be no argument at 2 today. Here is what the just filed AG's motion says:

APPELLANT’S AGREED MOTION TO DISSOLVE STAY AND DISMISS APPEAL
“Attorney General on behalf of the Department of Child Services has determined not to pursue this appeal at this time, and moves to dissolve the March 9, 2012, Stay, and dismiss the appeal. Undersigned counsel has consulted with counsel for the Appellee, who has agreed to this motion.”

(AG submitted, with signature of Stephen R. Creason, chief counsel)

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 9, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, March 9, 2012. It is one page (and 19 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Indiana Transfer Lists

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

But first, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB.

From Sunday, March 11, 2012:

From Saturday, March 10, 2012:

From Friday afternoon, March 9, 2012:

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/12/12):

Thursday, March 15th

9:00 AM - Indiana-Kentucky Electric Corp., et al. v. Save the Valley, Inc., et al. (49S02-1202-MI-72) - Indiana-Kentucky Electric Corporation (IKEC) filed a petition for judicial review asking the trial court to rule that certain citizens’ groups lacked the authority to obtain administrative review of a permit-renewal decision, but the trial court dismissed the petition. The Court of Appeals affirmed, relying on the law-of-the-case doctrine and noting that an earlier appeal held that these citizens’ group had associational standing to represent their members aggrieved by the permit renewal. Indiana-Kentucky Electric Corporation v. Save The Valley, Inc., 953 N.E.2d 511 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an Aug. 9, 2011 COA opinion dealing with associational standing.
9:45 AM - Michael J. Lock v. State of Indiana (35S04-1110-CR-622) - Police stopped Michael Lock while he was operating a Yamaha Zuma at forty-three miles per hour. In the Huntington Circuit Court, Lock was convicted of operating a “motor vehicle” while his driving privileges were suspended. The Court of Appeals reversed on grounds the State failed to prove that the Zuma was a motor vehicle as defined in Indiana Code sections 9-13-2-105 and 109. Lock v. State, 952 N.E.2d 280 Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, July 26, 2011 COA opinion where the majority wrote: "Lock argues the State did not prove he operated a motor vehicle, because his Zuma is a motorized bicycle, which, pursuant to Ind. Code § 9-13-2-105(d), is exempt from the provisions of the statutes regarding operation of a motor vehicle while privileges are suspended. We agree the State did not prove the Zuma was a motor vehicle; however, neither does the record before us permit us to hold the Zuma is a motorized bicycle. * * * We decline the State's invitation to relieve it of its burden to prove every element of a crime it prosecutes."
3/08/12 Docket Entry: THE ORAL ARGUMENT CURRENTLY SCHEDULED IN THIS MATTER ON THURSDAY, MARCH 15, 2012, AT 9:45 A.M. IS HEREBY VACATED AND WILL BE RESCHEDULED BY FUTURE ORDER OF THIS COURT. RANDALL T. SHEPARD, ACTING CHIEF JUSTICE OF INDIANA

Next week's oral arguments before the Supreme Court (week of 3/19/12):

Thursday, March 22ndh

9:00 AM - Quanardel Wells v. State of Indiana (49S05-1202-CR-68) - Wells was charged with several counts of sexual assaults against different women. The Marion Superior Court denied Wells’s motion for severance. See Ind. Code § 35-34-1-11. In this interlocutory appeal, the Court of Appeals affirmed in a not-for-publication memorandum decision, Wells v. State, No. 49A05-1012-CR-731, slip op. (Ind. Ct. App. Sept. 22, 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a Sept. 22, 2011 NFP COA opinion.

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 3/12/12):

Monday, March 12th

2:00 PM - IDCS v. South Bend Tribune (71A03-1203-JM-106) - Hearing on IDCS Verified Emergency Motion to Stay Order Granting Access to Public Records.
ILB: For background, see this ILB entry from March 10th. Documents are linked at end of entry.

Tuesday, March 13th

1:00 PM - Carl E. Thomas, III v. State of Indiana (63A05-1108-CR-423) - Carl E. Thomas was convicted of Class A felony rape with deadly force and sentenced to forty years in prison. He appeals that conviction challenging the trial court's admission of testimony from the rape victim regarding Thomas stabbing her hand with a knife more than four years before the rape, the trial court's decision to allow the State to ask preliminary questions of a defense witness during Thomas' direct examination of that witness, and the sufficiency of the State's evidence to prove Thomas committed rape while armed with a deadly weapon or while using or threatening to use deadly force. The Scheduled Panel Members are: Judges Baker, Najam and May. [Where: University of Southern Indiana, Carter Hall, University Center West, 8600 University Blvd., Evansville, Indiana ]

Next week's oral arguments before the Court of Appeals (week of 3/19/12):

No oral arguments currerently scheduled.

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, March 12, 2012
Posted to Upcoming Oral Arguments

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