Thursday, April 19, 2012
Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)
For publication opinions today (2):
In Anthony Hogan v. State of Indiana, a 19-page opinion, Judge Crone concludes:
Hogan is correct that his statement could not be used unless it was taken voluntarily. However, he has not presented any evidence that his statement was involuntary; therefore, he has not established ineffective assistance of trial or appellate counsel in regard to this issue. Hogan is also correct that an advisement of his right to a jury trial on the habitual offender and his personal waiver should have been made on the record. However, he has failed to show that he was prejudiced by this and therefore has failed to establish ineffective assistance of trial or appellate counsel. Hogan has failed to show that trial counsel’s decision not to tender an instruction on a lesser-included offense was an unacceptable strategy and has likewise failed to show that appellate counsel should have raised the issue as fundamental error. Any additional claims that Hogan may have made are waived because, despite our order to include his post-conviction petition in his appendix, he has failed to do so, and we are unable to determine what those additional claims might be. Therefore, we affirm the judgment of the post-conviction court.In Linda G. Darby v. State of Indiana, a 6-page opinion, Judge Darden writes:
Linda G. Darby appeals the trial court’s denial of her petition to file a belated notice of appeal. We affirm. * * *NFP civil opinions today (1):
Darby was a fugitive well after the thirty-day period in which she was required to file the documentation for appeal. Under this circumstance, our supreme court has held that a trial court acts properly in denying a defendant’s petition for a belated appeal. * * *
Under the circumstances of this case, Darby has not shown that the failure to file a timely appeal was “not due to the fault of the defendant.” As a result, we cannot find that the trial court abused its discretion when it denied her petition for a belated appeal of her conviction.
NFP criminal opinions today (1):
Courts - More on "SCOTUS rules lawyers hired by cities can seek immunity"
Updating this ILB entry from April 17th, Adam Liptak of the NY Times run a story yesterday on the Filarsky v. Delia decision, headlined "Justices Cite Protections for Lawyers in Inquiries." Here is a quote:
The Supreme Court reversed that decision in an opinion by Chief Justice John G. Roberts Jr. Much of his opinion was devoted to a historical inquiry about the protections available to people who had worked for the government when the 1871 law under which Mr. Delia sued, known as Section 1983, was enacted.
Part-time government workers were commonplace then, Chief Justice Roberts wrote, citing as examples an owner of a general store who also ran the post office, a ferry operator who also collected harbor fees and Abraham Lincoln, who occasionally conducted criminal prosecutions while in private practice.
Those examples demonstrated, Chief Justice Roberts concluded, that the drafters of Section 1983 had not meant for protections to vary depending on whether the government work at issue was full time or not.
“New York City,” he wrote, “has a Department of Investigations staffed by full-time public employees who investigate city personnel, and the resources to pay for it. The City of Rialto has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky.”
“Treating the two approaches differently,” he continued, could give rise to “unwarranted timidity” from part-time workers and the possibility that “the most talented candidates will decline public engagements.”
Ind. Courts - "Movement of Bisard blood sample violated court order"
That is the heading of WRTV's story last evening by Richard Essex and Jeremy Brilliant. It follows on this ILB entry from April 13th, headed "Bisard case: New DNA, alcohol tests ordered - Ruling is victory for prosecutors in drawn-out case." From the WRTV story:
The movement of a blood sample from IMPD Officer David Bisard that ultimately led to the resignation of the police chief violated a court order.Here, from the IndyStar yesterday, is a statement from the prosecutor, headed:
All blood evidence is stored in the basement of the City County Building downtown. It is the only place equipped with refrigerators. The court order regarding the evidence stated that the blood samples have to be secured and maintained.
There is no question on how procedures are to be followed, directions are plastered on the wall of the property room where the samples were supposed to be kept. But someone took the vials from an evidence refrigerator halfway across town to a regular, unrefrigerated storage area at the police annex on Post Road.
"We don't know if that was something intentional or some massive mistake. We don't know," said Marion County Prosecutor Terry Curry.
"Prosecutor: Moving Bisard evidence should not affect case."
“During the process of requesting permission to test the second vial of blood drawn from Officer David Bisard, our office became aware that this sample had been moved from a refrigerated environment in the Indianapolis Metropolitan Police Department property room to an unrefrigerated environment at the property room annex. This office did not authorize or order the second vial of blood to be moved.
We are currently working with an independent lab to clarify the implications of testing the blood from the second vial, and do not yet know if or how the blood was affected. We do not know the events that transpired causing Officer Bisard’s blood to be moved while in IMPD’s custody, and we are exceedingly concerned that it occurred. I met with the victims and victims’ families this morning at 11a.m. to inform them.
At this time, we do not believe these developments will negatively impact the prosecution of this case. Regardless of these developments, this office is continuing to move forward with the prosecution against Officer Bisard.”
Ind. Courts - "Judge hears arguments on how much former prosecutor can help in David Camm murder case"
Harold Adams reports today in the Louisville Courier Journal:
The special judge presiding over the third murder trial of David Camm said Wednesday he will decide “as quickly as I can” on how much involvement Floyd County Prosecutor Keith Henderson may have in the proceedings.WAVE's story is headed "Camm’s defense argues Henderson could 'infect' new prosecutor."
Judge Jonathan Dartt heard arguments from Camm attorney Stacy Uliana and Special Prosecutor Stanley Levco on the defense team’s motion to prohibit Henderson from helping Levco with the case. * * *
Henderson was removed from the case last November by the Indiana Court of Appeals, which agreed with a defense claim that his efforts to write a book about the case while a conviction of Camm was still on appeal amounted to a conflict of interest.
After Levco was appointed to take over the case, Dartt instructed Henderson to hand the case file over to the new prosecutor and to “fully cooperate in his review and investigation of the file and this case.”
Camm’s attorneys have objected, saying that allowing Henderson to do anything more than hand over the files to Levco would inject his conflicted interest into the proceeding.
Doing more than handing over the case file would go against the purpose of the appeals court ruling, Uliana said. “The more Mr. Levco feels he has to rely on Mr. Henderson, the more the conflict,” she said.
Levco countered that “it almost doesn’t make logical sense … that I couldn’t review witnesses” with Henderson and discuss insights with him. “I don’t believe I should be prohibited from talking to him,” Levco said. He also said any consultation with Henderson would be minimal.
And, in an April 6th story by Maureen Hayden in the News & Tribune on the "computer error at the state revenue department," this information:
Floyd County will receive $2,739,253 due to the state’s error. Floyd County Council President Ted Heavrin was pleasantly surprised by the announcement. Floyd County has been bracing for a third David Camm murder trial which officials said will cost about $1 million.Here is a very long list of earlier ILB entries on David Camm.
Courts - 7th Circuit judges rank very high in one informal short list of nation's top judges
Circuit Splits has a post today headed "Ross Guberman's Short List of the Nation's Top Judges (Part 2 of 3)." A quote:
Here in the States, I will include many familiar names on the Supreme Court, both past and present. On the lower courts, I will likely include the Ninth Circuit’s Chief Judge Kozinksi as well as Judges Posner and Easterbrook on the Seventh Circuit and their colleague Judge Diane Wood. I have also become a fan of Judge Neil Gorsuch on the Tenth Circuit, and of the late Richard Arnold of the Eighth Circuit.