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Wednesday, August 01, 2012

Ind. Decisions - Criminal Appeals in the Post-Shepard Era: Justice Massa Is 18-1 for the Prosecution

This analysis was prepared by Indiana University-Robert H. McKinney School of Law professor Joel Schumm.

Since Justice Massa filled the vacancy created by the retirement of Chief Justice Shepard four months ago, the Indiana Supreme Court has issued opinions in 19 criminal cases.* The State has prevailed in 13 cases; the defendant has prevailed in 6.

Hollin, the only case in which Justice Massa agreed to grant relief to a defendant, is an unusual case where the Court merely upheld a trial court’s grant of post-conviction relief under a very deferential standard of review: “we conclude that the post-conviction court’s judgment is not clearly erroneous and the State has not shown the existence of clear error – that which leaves us with a definite and firm conviction that a mistake has been made.”

Justice Massa’s single vote for relief for a criminal defendant compares to 5 for Justice David, 6 for Chief Justice Dickson, 8 for Justice Sullivan, and 9 for Justice Rucker.

Although these numbers may seem striking in and of themselves, the specific reasons for Justice Massa’s divergence from the majority in each case are worthy of note. Here is a closer look at his five dissents in favor of the State:

  1. Original action in Logan. Writs of mandamus and prohibition are extraordinary remedies that are rarely granted by the Indiana Supreme Court. The law and facts must clearly entitle the Relator to relief in order to prevail. On May 24, a majority of the Court (and its three longest-serving members) granted relief in part based on Criminal Rule 4 (speedy trial) concerns. Justice Massa, along with Justice David, dissented.

  2. Fletcher dissent from denial of transfer. On June 14, the Court issued an order denying transfer in a Criminal Rule 4 (speedy trial) case in which the Court of Appeals had reversed the trial court. Although transfer was initially granted, the Court found after hearing oral argument that it had been improvidently granted. Justice Massa filed a rare written dissent from the denial of transfer.

  3. Sentence reduction in Walker. On June 20, the Court issued a per curiam opinion reducing a sentence from twenty to twelve years, relying heavily on another recent case: “Having reviewed the matter, we grant transfer of jurisdiction, and direct revision of the sentence from twenty years to twelve years. See Abbott v. State, 961 N.E.2d 1016, 1017-1019 (Ind. 2012) (‘but for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for his possession of less than three grams of cocaine.’).” Although Chief Justice Dickson and Justice David had dissented in Abbott, they concurred in the per curiam reduction in Walker. Justice Massa did not; he was the only vote to deny transfer.

  4. Sentence reduction in Castillo. Yesterday the Indiana Supreme Court reduced a life without parole sentence to 65 years. Justice Massa’s dissent found “no reason to disturb this decision under our Rule 7(B) analysis when considering the nature of the offense (a vicious litany of abuse on a defenseless and utterly innocent victim followed by a deliberate, planned attempt to conceal the crime, deny involvement, and deceive law enforcement) and the character of the offender (a drug-abusing teenager with a troubled childhood who exhibited hostility to authority and callous disregard for her victim and was hardly the manipulated accomplice she now claims to be).”

  5. Double enhancement in Dye. Yesterday the Court also ruled in favor of a defendant convicted of unlawful possession of a firearm by a serious violent felon (“SVF”) and found to be a habitual offender, concluding this was an impermissible double enhancement. Justice Massa dissented, concluding there was “explicit legislative direction permitting an adjudicated serious violent felon to be subject to additional enhancement under the general habitual offender statute.” Chief Justice Dickson concurred with the majority, “noting that, notwithstanding Justice Massa’s informative and persuasive dissent, I prefer to adhere to our existing controlling precedent of Mills v. State, 868 N.E.2d 446 (Ind. 2007), to which the Legislature has not responded with any contrary explicit legislative direction.”

The numbers above do not include votes on transfer petitions that did not result in a written opinion. For example, on April 24 the Court denied transfer in Nathan Anderson v. State. The Court of Appeals had reversed in part, concluding the defendant’s statement “I really would like to talk to an attorney or something” was an unequivocal request for counsel that should have led police to cease questioning. Justice Massa dissented from the denial of transfer, concluding: "Appellant's invocation of his right to counsel was ambiguous and thus his convictions on all counts should be upheld."

A Record Rate of Dissent?

The Indiana Supreme Court has long had a high percentage of unanimous decisions. Newly appointed justices have generally been part of that unanimity while often aligning most frequently with the Chief Justice. Last year’s Indiana Law Review survey article about Indiana Supreme Court voting patterns commented on “the significant amount of judicial independence on Justice David’s part,” though, noting that he agreed with Justices Dickson and Sullivan in only 71.4% of criminal cases during his first three months on the Court, while no other pair of justices agreed in less than 80% of criminal cases.

But Justice David’s early “independence” in criminal cases pales in comparison to Justice Massa’s. Without Justice Massa in the equation, the four veteran justices would have been unanimous in 73.7% (14/19) of criminal cases; with Justice Massa in the equation, unanimity falls to 52.6% (10/19). Considering only the four veteran justices, the lowest rate of agreement in criminal cases was 78.9% (15/19) (Justice David and Justice Rucker). This low equals the percentage of agreement between Justice Massa the justice with whom he agreed most (Justice David). Justice Massa was least aligned with Justice Rucker, agreeing in only 57.9% (11/19) of criminal cases.

Although the ILR article commented on Justice David’s membership in the majority in three split decisions “providing an early hint of how crucial the new justice’s views might be going forward,” Justice Massa was more frequently in the minority than the majority of the non-unanimous opinions: 55.6% (5/9) of cases. Justice Rucker was a distant second at 33.3% (3/9). Most remarkably, though, unlike Justice David, whose early opinions sometimes sided with the State and sometimes with the defendant, Justice Massa’s early decisions in split decisions have been uniformly for the State. This differs from some conservative U.S. Supreme Court justices, such as Justice Scalia, who has often sided with criminal defendants on Sixth Amendment confrontation and jury issues as well as some Fourth Amendment cases. As a recent LA Times article notes, “[f]or Scalia, ‘this is all about adhering to originalism,’ regardless of whether the results seem strange.” It is difficult to find a similar guiding principle in Justice Massa’s early opinions.

With the final round of interviews for the Sullivan vacancy just one week away, one might harken back to the tough questions Massa faced as an applicant in the second round. Every judge brings to the bench a wealth of prior experiences as a lawyer and an individual, and Justice Massa spent most of his professional life as a prosecutor: Marion County Deputy Prosecutor (1990-91), Chief Counsel at MCPO (1995-98, 1999-2002), and Assistant U.S. Attorney (2002-05). He is the first and only Daniels’ appointee to the Court of Appeals or Supreme Court without prior judicial experience. (Justice David was a Boone County judge; Judge Bradford was a Marion County judge; and Judge Brown was a Jasper County judge.)

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*This number includes 17 opinions decided between May 31 and July 31, which may be accessed here and here. It also includes an original action and order denying transfer with a written dissent, available here.

Posted by Marcia Oddi on August 1, 2012 11:20 AM
Posted to Ind. Sup.Ct. Decisions