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Saturday, March 24, 2012

Courts - "Courtroom trials, the stuff of television dramas, almost never take place"

Updating this ILB entry from March 22nd, headed "Supreme Court expands rights in plea bargains," about the SCOTUS's decisions this past week in Lafler and Frye, Erica Goode of the NY Times analyzes the impact of the rulings in a story headed "Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals." Some quotes:

For years, the nation’s highest court has devoted the majority of its criminal justice efforts to ensuring that defendants get a fair day in court and a fair sentence once a trial is concluded. But in two decisions on Wednesday, the Supreme Court tacitly acknowledged that it has been enforcing an image of the system that is very different from the real, workaday world inhabited by prosecutors and defense lawyers across the country.

In that world, 97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence. Courtroom trials, the stuff of television dramas, almost never take place. * * *

The decisions, endorsed by a 5-to-4 majority and written by Justice Anthony M. Kennedy, affirm a defendant’s right under the Sixth Amendment to have the assistance of an effective lawyer during pretrial negotiations. Both of the cases before the court involved defendants who failed to take plea bargains after receiving bad legal advice.

Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with so little oversight that one law professor, Stephanos Bibas of the University of Pennsylvania, has compared it to a Turkish bazaar.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Courts in general

Vacancy on Supreme Court 2012 - Governor Daniels fails again to appoint a woman to the Supreme Court

Updating this ILB entry from yesterday, here are some news reports of the Governor's appointment yesterday. I've added a few comments, in large part because most Indiana attorneys will be reluctant to do so publicly. Also because I am now in my eighth decade and my hopes of seeing a woman on the Indiana Supreme Court in my lifetime are fading. (See also my observations in this Feb. 21, 2012 entry).

Charles Wilson of the AP has a story headed "Mark Massa named to Indiana Supreme Court," here in the FWJG.

Mary Beth Schneider and Chris Sikich report in the Indianapolis Star; the story is headed "Daniels picks Massa for Indiana Supreme Court: 51-year-old had served as governor's lawyer." Some quotes:

Massa is Daniels' second Supreme Court pick, and the second time he has opted not to appoint a woman to a court that has none among its five justices. He chose Massa over two other finalists, Jane Seigel, executive director of the Indiana Judicial Center, and Appeals Court Judge Cale Bradford. In 2010, Daniels chose then-Boone Circuit Judge Steven David for the Supreme Court over attorney Karl Mulvaney and Marion Superior Court Judge Robyn Moberly.

Indiana is one of three states, along with Iowa and Idaho, with all men on its highest court.

One woman has served on the Indiana Supreme Court: Myra Selby, who was appointed in 1995 by Bayh but resigned in 1999 to return to private practice.

Selby could not be reached Friday for comment, but others expressed some dismay that Indiana's court remains an all-male province.

"It's not about whether Mark Massa is qualified," said Frances Lee Watson, a law professor at the Indiana University Robert H. McKinney School of Law. "The governor had a chance to pick a justice twice, and he has chosen not to place a woman on the court."

The Supreme Court, she said, should reflect a diverse group of people and viewpoints. Beyond that, it's a matter of equality, she said.

"I think it's a good idea to have women in positions of leadership, equally with men," Watson said. "Given that there is a strong presence of women in the legal profession, it doesn't seem equal that all of the justices are men."

Daniels said he would "like nothing more" than to appoint a woman to the Supreme Court. He appointed the first woman to be the Indiana Tax Court judge, Martha B. Wentworth, in 2010, and one of his two appeals court choices was Elaine Brown.

But, he said, his top criteria were merit, experience, principles and temperament. Gender, he said, would be a tie-breaker, "but it cannot trump those other criteria, in my opinion. We simply have to seek out the very, very, very best person available, and I'm convinced I have."

Daniels put some of the burden on women, saying many who might have been strong candidates did not apply for the court. The Indiana State Bar Association said there are 3,519 women practicing law in Indiana, compared with 8,384 men. According to the Indiana Judicial Center, there are 71 female judges in Indiana, with 265 men.

Unlike U.S. Supreme Court picks, where a president can search out a nominee, Indiana's governor must choose from one of three finalists selected by the Indiana Judicial Nominating Commission from a list of applicants.

Some ILB observations: I second Prof. Watson's comments - the Governor has had two opportunities to appoint a woman to the Court, and has elected not to do so.

Yesterday a reporter was taking an online poll, asking readers whether it was a problem that there are no women on the Court. I responded: "Of course not, women are LUCKY to have men making all the decisions for them!" She came back with "I know! I myself feel incredibly honored." And it is not only that 30% of Indiana's attorneys are women. More than half of Indiana's citizens are women. The Supreme Court's actions impact all its citizens.

The Governor trumpets his appointments of Judge Wentworth and Judge Brown as mid-level appellate court judges, as if that balanced his failure to add women members to the Supreme Court. Fortunately, our appellate level courts already contain a number of women judges, thanks to appointments made by earlier governors. In another story, he touts his selection of Becky Skillman to run for lieutenant governor, and another woman, Connie Lawson, as Indiana secretary of state. Of course those two appointments could be countered by the names of any number of male appointees.

The Star story continues: "Daniels put some of the burden on women, saying many who might have been strong candidates did not apply for the court." To the contrary, many strong women candidates applied both in 2010 and this year. Further, the Governor has not, during his nearly eight years in office, publicly urged women to apply for the Court. This would have helped particularly after the 2010 selection process, where many of Indiana's "best and brightest" Republican women judges and attorneys submitted applications -- 19 of the 34. Many people thought then that Governor Daniels surely would act to remedy the situation of an all-male Indiana Supreme Court. But he didn't. The number of women applicants decreased markedly this time.

Finally, the Star story ends with the statement that the Governor is limited to the three names sent to him by the Judicial Nominating Commission. Ann DeLaney responded to that last evening on Indiana Week in Review by exclaiming, "Nonsense, the Governor is the JNC!" And she is right, he does have a good deal of influence. The Governor names the three citizen members of the JNC, the bar elects the three lawyer members, and the Chief Justice serves as the chair. It is unlikely that any Governor would be unable to make his wishes known, and indeed to exercise his will, throughout the process ...

Eric Bradner reports in the Evansville Courier & Press:

Immediately after the appointment, Daniels was criticized for failing to choose a woman. Indiana has only had one female justice in the state’s history – Myra Selby, who was appointed by Gov. Evan Bayh in 1995 but returned to private practice in 1999.

Senate Minority Leader Vi Simpson, D-Ellettsville, took to Twitter to call it “unfortunate.” Ann DeLaney, a former Indiana Democratic Party chairwoman, complained about it on the Indiana Week in Review television show on WFYI-Indianapolis.

Daniels noted that he chose a woman, Becky Skillman, to run for lieutenant governor, and another woman, Connie Lawson, as Indiana secretary of state. He also named a woman to the Indiana Court of Appeals and named a female tax judge.

“I’d like nothing more, of course,” Daniels said. “We’d like to see more balance.” But, he said, he will only use gender as a tie-breaker.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Vacancy on Supreme Court 2012

Stage Collapse - "Indiana judge orders Sugarland to testify in April"

Updating the March 21st post, headed "Sugarland won't answer Indiana State Fair stage collapse questions until May," Carrie Ritchie reported last evening in the Indianapolis Star:

A Marion County judge has ordered Sugarland to schedule a time to give its take on what happened just before the stage rigging collapsed at its Aug. 13 concert at the Indiana State Fair. * * *

The band must provide dates between April 1 and 15 when band member Jennifer Nettles can respond to allegations that the band refused to postpone the concert despite threats of bad weather, Judge Theodore Sosin ruled during a hearing this morning. Full depositions of band members and representatives of its ownership company, Lucky Star Inc., can be scheduled later.

The band and its ownership company, Lucky Star Inc., must also provide information regarding its insurance policy.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Stage Collapse

Courts - "A Bizarre Outcome on Generic Drugs"

Updating this post from yesterday, which quoted a March 20th NYT story headed ""Generic Drugs Proving Resistant to Damage Suits." ," the Times today has this editorial. It begins:

Dozens of suits against drug companies have been dismissed in federal and state courts because of a decision by the Supreme Court last year that makes it virtually impossible to sue generic manufacturers for failing to provide adequate warning of a prescription drug’s dangers. This outrageous denial of a patient’s right to recover fair damages makes it imperative that Congress or the Food and Drug Administration fashion a remedy.

This situation is particularly bizarre because patients using the brand-name drug can sue when those using the generic form of the drug cannot ...

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Courts in general

Ind. Courts - "Daniels says the current state system for appointing judges works in Indiana, but calls the Marion County slating system for judicial selection a travesty"

See IndyPolitics, it has the 5 minute audio.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Indiana Courts | Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - One take on Daniels' Supreme Court selections

"Indiana Supreme Court To Remain All Male After Daniels Names Massa" is the heading to this post by Gary Welsh of Advance Indiana.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Associational standing challenge fails, Court rules transfer improvidently granted

On March 15th the Supreme Court heard oral argument in Indiana-Kentucky Electric Corp., et al. v. Save the Valley, Inc., et al. At that time the summary posted on the Court site read:

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.
On March 22nd, the Supreme Court issued this (just posted), one-page, 3-2 Order, written by Acting Chief Justice Dickson:
By order dated February 7, 2012, the Court granted transfer of jurisdiction in this appeal. After further review, including oral argument, the Court has determined that transfer of jurisdiction was improvidently granted. Accordingly, the order granting transfer of jurisdiction is VACATED. The transfer petition filed by the Appellant is DENIED. The Court of Appeals opinion, Indiana-Kentucky Elec. Corp. v. Save the Valley, Inc., 953 N.E.2d 511 (Ind. Ct. App. 2011), is no longer vacated and is REINSTATED. This appeal is at an end. See Ind. Appellate Rule 58(B). * * *

All Justices concur, except Shepard, C.J., and David, J., who vote to grant transfer.

Here is the now-reinstated Court of Appeals opinion in Indiana-Kentucky Elec. Corp. v. Save the Valley, Inc.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Environment | Ind. Sup.Ct. Decisions