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Saturday, July 07, 2012

Ind. Decisions - "Man's conviction stands despite former Newton prosecutor's lapsed law license"

Readers may recall the ILB entries in 2010 about the then Newton County prosecutor, James E. Barce, who was reprimanded by the Supreme Court 3-2 for practicing for years while on inactive status. From the opinion (4th case):

Respondent began serving as the part-time prosecuting attorney for Newton County in 1995. In 2005, Respondent elected to become a full-time prosecutor, which required that he close his private law practice. On August 5, 2005, Respondent signed an affidavit of inactivity, which placed his law license on inactive status. In the affidavit, Respondent stated under the penalties of perjury that he was not engaged in the practice of law in Indiana. Respondent signed substantially similar affidavits in 2006, 2007 and 2008. While claiming inactive status, Respondent paid a reduced annual registration fee.

In February 2009, defense counsel in a case Respondent was prosecuting pointed out that his law license was inactive. Promptly thereafter, Respondent arranged to place his license on active status, self-reported the violation to the Commission, and offered to pay the difference between the reduced fees he paid and the active status fees for the years he was on inactive status. * * *

[T]he Court imposes a public reprimand for Respondent's professional misconduct.

The dissent, written by CJ Shepard and joined by J Rucker, argued unsuccessfully for suspension, as has been recommended by the Disciplinary Commission, concluding:
The Commission obviously thinks practicing law without a license is important, and so do I. The Court should suspend Barce for thirty days, and his reinstatement should be conditioned on his paying both the back registration fees and reimbursing the costs of convening the jury that had to be sent home when his violation was brought to light.
In a NFP opinion issued Friday, Daher v. State, brought by a pro se appellant, the panel concluded:
The trial court correctly denied Daher’s motion [for relief from judgment], and we find that Barce’s actions as an unlicensed de facto prosecutor did not harm or prejudice Daher in any manner. We affirm.
Dan Carden of the NWI Times reports today on the ruling in this story. Some quotes:
INDIANAPOLIS | An Indianapolis man initially brought to court while the law license of former Newton County Prosecutor Ed Barce was inactive is not entitled to have his conviction automatically set aside, the Indiana Court of Appeals ruled Friday. * * *

In his appeal, Daher argued he was improperly arrested, tried, convicted and sentenced because Barce had put his law license on "inactive status" in 2005, the year he became full-time prosecutor. Inactive status allowed Barce to pay a reduced registration fee.

Barce reactivated his license in February 2009 after his inactive status was discovered. He was publicly reprimanded by the Indiana Supreme Court for the unauthorized practice of law and lost his bid for re-election in the 2010 Republican primary.

Regarding Daher, the appeals court ruled 3-0 that Barce was prosecutor in fact, even if not in law, and as such his actions must have prejudiced the case to overturn the conviction.

"It is insufficient to prove only that Barce's license was inactive," Judge Michael Barnes said. "Some harm must accompany this proof, and no harm has been alleged or substantiated by Daher."

Posted by Marcia Oddi on July 7, 2012 07:32 PM
Posted to Ind. Sup.Ct. Decisions