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Friday, December 07, 2012

Courts - SCOTUS has announced that it will review the constitutionality of both the federal Defense of Marriage Act and California’s Proposition 8

That is per SCOTUSblog, more coming. Check back this evening when some good commentaries are available, or/and follow SCOTUSblog directly.

The Prop. 8 case page is here; the DOMA case granted cert is Windsor.

Background on Edie Windsor's DOMA challenge here; it is a very appealing story.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Courts in general

Law - "Louisiana U.S. Attorney Jim Letten resigns amid online commenting scandal in his office"

This is a bizarre story, somewhat reminiscent of the story a few years back about a judge's daughter allegedly submitting online comments to the local paper about a case her mother was trying.

Campbell Robertson of the NYT has this story, which presents a clearer explanation for a national audience - some quotes:

Beginning last spring, a series of legal motions had revealed that Mr. Letten’s senior prosecutors had been making provocative, even pugnacious comments about active criminal matters and other subjects under aliases at nola.com, the Web site of The Times-Picayune newspaper. * * *

Last month, the revelations of online misconduct reached Mr. Letten’s top assistant, Jan Mann. A federal judge, in a scathing 50-page order, broached the possibility of criminal conduct in regard to her online activities, as well as those of another senior prosecutor, Sal Perricone, who resigned in March.

The judge also revealed that another federal prosecutor had expressed suspicions about the comments to his supervisors in 2010.

The exposure of Ms. Mann, months after Mr. Letten’s avowals that Mr. Perricone had acted alone, raised doubts about the effectiveness of an internal investigation by the Justice Department. The revelations could also jeopardize hard-fought convictions — including those last year of police officers involved in post-Katrina killings on the Danziger Bridge — as well as continuing inquiries like a bribery investigation that appears to be steadily encircling C. Ray Nagin, the former mayor.

Here is the long version of the story, from the Times-Picaynne (NOLA.com), reported by Gordon Russell. Some quotes:
The news release also said that John Horn, First Assistant U.S. Attorney for the Northern District of Georgia, will investigate leaks and other matters in the Danziger Bridge case, a probe that U.S. District Judge Kurt Engelhardt requested in a tartly worded Nov. 26 order.

The series of moves comes eight months into a scandal revolving around anonymous online commenting by high-ranking prosecutors in his office, including the shocking revelation that Letten's longtime First Assistant, Jan Mann, was involved.

The troubles for Letten began in March, when landfill owner Fred Heebe -- the target of a sprawling federal probe -- filed a civil lawsuit alleging that prosecutor Sal Perricone had been using an online alias to savage him and other federal targets in comments posted at NOLA.com.

Perricone, the office's senior litigation counsel and a member of Letten's inner circle, quickly admitted his sins and resigned. The matter was referred to the Justice Department's Office of Professional Responsibility for investigation, and the scandal seemed to die down.

In an interview with New Orleans magazine published in August, Perricone insisted the commenting brouhaha started and ended with him, saying no one else in the office had been aware of his activities.

But last month, the scandal reignited with a vengeance, when Heebe filed a second defamation suit, this one claiming Mann had been commenting about federal targets and judges as "eweman" on NOLA.com. Many of the comments by "eweman" were adjacent to comments made by Perricone under one of his online aliases, suggesting a coordinated campaign.

Mann soon admitted she had commented online at NOLA.com, but did not cop to a specific alias. Letten, meanwhile, announced that she was being demoted from her ranking posts of First Assistant U.S. Attorney and chief of the office's criminal division.

Mann did not step down, however, and the problems for Letten's office continued to mount. Engelhardt -- who had asked for a full investigation into leaks in the Danziger Bridge case earlier this year -- issued a stinging order in late November in which he essentially accused Mann and Perricone of untruthfulness.

In particular, the judge was upset by a letter Mann sent him in October in which she wrote: "Prior to the Perricone incident, I was not a follower of NOLA.com postings and had no real sense of what was happening there."

In his order, Engelhardt strongly urged the Justice Department to appoint an independent counsel to investigate the problems, saying Mann's earlier inquiry had been insufficient. The judge also questioned the ability of the Office of Professional Responsibility -- a subset of the Justice Department -- to get to the bottom of the matter.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Terry L. Brown v. Tammy S. Brown, a 7-page opinion, Judge May writes:

Terry L. Brown (Terry) appeals a civil judgment in favor of his ex-wife, Tammy S. Brown (Tammy). Terry argues the trial court abused its discretion when it admitted evidence regarding criminal offenses he committed over twenty years ago. We reverse and remand. * * *

In light of the context in which Terry’s convictions were mentioned during trial, we conclude the evidence of his past convictions was not used for the narrow purpose permissible pursuant to Evid. R. 609(a) – to attack Terry’s credibility. The evidence could have reasonably led the jury to the forbidden inference that Terry’s past convictions, albeit over twenty years old, reflect his propensity to commit the acts for which Tammy alleged he should be held accountable herein. Further, as the evidence was not used for the limited purpose permitted by Evid. R. 609(a), the admission of that evidence was more prejudicial than probative, which violates the exception provided in Evid. R. 609(b). See Collins, 966 N.E.2d at 106 (evidence of thirty year old misdemeanor battery arrest and charge was highly prejudicial because the admission thereof unfairly tipped the scales of justice against Collins).

In Robert Geller and Judy Geller v. Kurt P. Kinney, Holly Kinney, and A.M. Rentals, Inc., a 21-page, 2-1 opinion, Judge Najam concludes:
In sum, we hold that the exculpatory clause of the Lease and Management Agreement exempts A.M. from liability for its failure to perform its duties to the Gellers under Indiana Code Section 25-34.1-10-10(a)(3)(C). We also hold that applying the exculpatory clause on these facts is not contrary to public policy. Finally, we hold that the trial court’s conclusion that the Gellers’ sale of their home mitigated the Kinneys’ damages to the Gellers is not clearly erroneous. As such, we affirm the court’s judgment.

MAY, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins at p. 17, and which concludes] I would reverse the decision of the trial court and remand with instructions to enter judgment for Owner for all losses incurred as a result of Agent’s failure to perform its statutory duties to disclose to Owner the adverse material facts known to Agent and to exercise reasonable care and skill in this transaction.

In Verdyer Clark v. State of Indiana , a 13-page opinion, Judge May writes:
Verdyer Clark was convicted of battery as a Class D felony pursuant to a statute that required the State to prove the battery caused injury to a person less than fourteen years old and was committed by a person at least eighteen years old. Clark argues the State did not prove its case because the only evidence it offered to prove he was over eighteen at the time of the crime was inadmissible hearsay. We reverse and remand so that the State may decide whether to retry Clark. * * *

As the only evidence the State offered to prove an element of Clark’s offense was inadmissible hearsay, we must reverse Clark’s conviction. Of course, this reversal does not prevent the State from retrying Clark. While a reversal for insufficient evidence bars retrial under the Double Jeopardy Clause, analyzing the evidence for these purposes includes consideration of the evidence improperly admitted. Lockhart v. Nelson, 488 U.S. 33, 41 (1988). As the whole of the evidence admitted at trial plainly sufficed to prove Clark’s guilt of the charged offense, a second trial may be conducted. See, e.g., Carr v. State, 934 N.E.2d 1096, 1108 (Ind. 2010).

In Phillip T. Billingsley v. State of Indiana , a 17-page, 2-1 opinion, Judge Najam writes:
Phillip T. Billingsley appeals his conviction for possession of marijuana, as a Class D felony, following a bench trial. Billingsley raises three issues for our review, which we consolidate and restate as the following two issues:
1. Whether the officer responding to a 9-1-1 call initiated an investigatory stop of Billingsley or, instead, placed Billingsley under arrest when the officer withdrew his firearm upon his arrival at the scene; and
2. Whether the responding officer had a reasonable and articulable suspicion to initiate an investigatory stop of Billingsley.
We hold, based on the totality of the facts and circumstances available to the responding officer at the time he detained Billingsley, that the responding officer initiated an investigatory stop of Billingsley based on a reasonable and articulable suspicion that he was engaged in criminal activity. Accordingly, the trial court did not abuse its discretion when it admitted into evidence marijuana seized following the officer’s detention of Billingsley, and we affirm his conviction. * * *

Billingsley contends that the trial court abused its discretion when it admitted the seized marijuana into evidence because the State’s seizure of the marijuana from the front passenger seat of the SUV violated his rights under the federal and Indiana constitutions. * * *

Officer Lichtsinn lawfully detained Billingsley during an investigatory stop. Accordingly, the State lawfully seized the discovered marijuana and the trial court did not abuse its discretion in admitting that evidence against Billingsley. Thus, we affirm Billingsley’s conviction. Affirmed.

MAY, J., concurs.
KIRSCH, J., dissents with separate opinion. [that begins at p. 15 and that concludes] Because there was no supporting information or any other indicia of reliability for the name provided, I do not believe that the mere providing of a name by a 9-1-1 caller removes this case from the category of an anonymous caller. I also do not believe that the information known to the investigating officer was sufficient to satisfy the standards established by our Supreme Court and the Supreme Court of the United States for investigatory stops. Accordingly, I would reverse Billingsley’s conviction.

NFP civil opinions today (1):

In Re the Marriage of Lisa L. Shisler and Ned L. Shisler; Ned L. Shisler v. Lisa L. Shisler (NFP)

NFP criminal opinions today (8):

Brenda Varo v. State of Indiana (NFP)

Vickie Jessie v. State of Indiana (NFP)

Michael R. Krohn v. State of Indiana (NFP)

Quinn Nelson v. State of Indiana (NFP)

Anthony White v. State of Indiana (NFP)

Deandre L. Mathews v. State of Indiana (NFP)

Andrea Averitte v. State of Indiana (NFP)

Michael McClellan v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "UNITED STATES OF SUBSIDIES: A series examining business incentives and their impact on jobs and local economies"

This ILB post from Monday linked to the NY Times' three-part series on tax breaks and other incentives for local jobs. It also linked to the database of these incentives compiled by the Times.

Thursday in the Times, this editorial that begins:

Competition among states and cities to lure businesses in hopes of creating jobs is not new, but it has become more fierce in recent years. An investigation by The Times found that state and local governments are giving out $80 billion a year in tax breaks and other subsidies in a foolhardy, shortsighted race to attract companies. That money could go a long way to improving education, transportation and other public services that would have a far better shot at promoting real economic growth.
What caught my eye was this paragraph:
In one particularly egregious example in Pontiac, Mich., the State of Michigan gave $14 million in tax credits and a state pension fund guaranteed $18 million in bonds to a movie studio that created just 12 permanent jobs. In Texas, Amazon.com, the online retailer, received tax abatements, sales tax exemptions and other benefits totaling $277 million to open a warehouse that promises to employ 2,500 people. Those benefits were granted after the retailer closed another warehouse because of a dispute with the government involving sales taxes.
Because the State of Indiana has reportedly given Amazon breaks in collecting Indiana sales tax in return for its building warehouses in Indiana, the ILB looked in the Times database to see grants to Amazon by state. The Times table shows 9 states, Texas tops it with $277 million, Arizona is in the rear with $740,000. Indiana ranks fifth, with tax credits of $7 million to Amazon.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Indiana Government

Ind. Courts - 2010 Notre Dame sexual assault case news again

For background see these ILB entries from 2010-2011.

Melinda Henneberger, a Washington Post political writer, wrote this very long entry in her Dec. 4 "She the People" WAPO blog on Dec. 4. It is headed "Why I won’t be cheering for old Notre Dame" and begins:

Well, since you asked — and many of my friends have, some more than once — no, I will not be cheering for my alma mater, the University of Notre Dame, to win big-time college football’s championship on Jan. 7. What’s really surprising me are those who believe as I do that two players on the team have committed serious criminal acts – sexual assault in one case, and rape in another — but assumed that I’d support the team anyway, just as they are. * * *

Two years ago, Lizzy Seeberg, a 19-year-old freshman at Saint Mary’s College, across the street from Notre Dame, committed suicide after accusing an ND football player of sexually assaulting her.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Indiana Courts

Ind. Gov't. - "AG's office faces criticism over violations of Access To Public Records Act"

Kara Kenney of WRTV6 had this story and video last evening:

INDIANAPOLIS - The Indiana Attorney General’s office is facing criticism for several violations of Indiana’s Access to Public Records Act.

Greg Zoeller’s office is known as a champion of public records and open meetings, and holds training seminars around the state on the topic.

“When citizens can participate and readily access their government records and attend government meetings as the law intends, the system is more transparent and accountable,” Zoeller said in a Nov. 20 news release.

Illinois-turned-Hamilton-County, Ind-resident Paul Straughn told Call 6 Investigator Kara Kenney it’s been a nightmare getting records from the Attorney General’s office.

“I think it’s pretty disgusting frankly,” said Straughn, a retired federal government worker.

Straughn said his father Max, a World War II disabled veteran, was mistreated by two Indiana doctors.

“I have a very deep and abiding respect for all veterans,” said Straughn, choking back tears. "The victim in this case was a disabled World War II veteran, disabled because of his military service, and was left crippled for 66 years."

His father has since passed away, but Straughn filed a complaint with the Attorney General’s office in November 2011 asking the agency to investigate the mistreatment allegations.

Straughn said the agency closed the complaint without interviewing key witnesses.

“I’m the lead witness in this case, and I’ve never been interviewed,” said Straughn.

Frustrated, Straughn filed a request for documents on his father’s case under the Indiana Access to Public Records Act (APRA).

“I contend the Attorney General never fully investigated my complaint,” said Straughn. “So the APRA was my last resort to find out the information.”

Straughn said he still did not receive the information, and thus, filed an appeal with the state Public Access Counselor Joe Hoage.

In advisory opinions dated July 25 and Aug. 8 , 2012, Hoage found three separate violations of the APRA, including failing to preserve records and failing to meet its burden for redacting, or blacking out, information.

“I’m like wow, holy smokes,” said Straughn. “What can I say? I was dumbfounded. I find it refreshing -- the integrity of the public access counselor’s office.”

Straughn met last week with the Chief Deputy Attorney General in an attempt to resolve the matter.

Call 6 Investigator Kara Kenney asked to interview Zoeller about the violations, but spokesman Bryan Corbin declined, saying an interview was not necessary.

“We strive to complete all public records requests promptly and we have a good working relationship with the Public Access Counselor’s Office -- in fact, the state’s original public access counselor now works for our office as a Deputy AG -- but whenever an individual makes a complaint, the Counselor is required to issue an advisory opinion regardless of the complaint’s merit,” wrote Corbin in an email to Kenney. “We always address complaints fully. The Public Access Counselor's opinions are advisory only; there is no penalty or even a requirement for us to comply with them."

Corbin also pointed out the AG’s office has spent more than 40 hours of staff time on Straughn’s requests and has not charged him copying fees.

“It also should be noted that the AG’s Office has received 123 records requests from the public in 2012,” wrote Corbin. “Of those 123, Mr. Straughn made five complex multilayered requests that included a total 58 parts and a total 140 sub-parts.”

The story links to the July 25 (12-FC-174)and August 8 (12-FC-180) opinions of the Public Access Counselor.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Indiana Government

Ind. Courts - Bisard trial to move to another county

From Sandra Chapman's story last evening on WTHR13:


A judge has agreed to move IMPD Officer David Bisard's trial out of Marion County at the urging of the officer's attorneys.

Marion County Judge Grant Hawkins said Thursday the case surrounding David Bisard had generated too much publicity for him to get a fair trial in the Indianapolis media market.

Hawkins met with attorneys behind closed doors to discuss possible sites for the trial. He will choose the location for the trial from three sites in February. The possible locations are not known.

Bisard hit a group of motorcyclists with his squad car in August 2010. One of the motorcyclists, Eric Wells, was killed in the crash and two others, Mary Mills and Kurt Weekly, were critically injured.

Months ago, the big issue facing the Bisard case was an Appeals Court ruling on whether the blood draws could be legally used to substantiate drunk driving allegations in this case. In September, the Indiana Court of Appeals reversed a previous ruling and now says the blood can be used, clearing the way for the trial to be set.

The big question now is where the trial will be held.

Bisard's attorneys contend he cannot get a fair trial here in Marion County because of extensive pre-trial publicity surrounding the case for two years.

John Tuohy's long story this morning in the Indianapolis Star is headed "Moving David Bisard trial to another county viewed as smart call." Some quotes:
Moving the David Bisard trial to another county will be much like taking a theater production on the road, but it should sharply decrease the chance for juror bias, legal experts said Thursday.

“Most prosecutors would rather not move,” Morgan County Prosecutor Steve Sonnega said. “It’s the difference between playing a home game and a road game. You’re not at your own desk, you’re driving, living in a hotel.”

“Then again, you are eliminating a lot of potential problems.”

Citing pre-trial publicity that “endures” after more than two years, Superior Judge Grant Hawkins said a change of venue was necessary to ensure Bisard a fair trial.

The judge used a personal example to make his point.

“When I got off the elevators I was met by five (TV) cameras,” Hawkins said at a hearing Thursday. “That is evidence that interest in this case endures after 24, 26 months. I don’t see it attracting any less attention in the near future.”

The media attention the case has received would make it difficult to find impartial jurors who had not heard something about the case, Hawkins concluded.

The site of the trial still needs to be determined. Hawkins did not set a trial date. * * * The next hearing is Feb. 14. Deputy prosecutor Denise Robinson said she expected a trial date to be set then for late summer or early fall. * * *

Changes of venue in Marion County criminal cases are rare, but they are more common in smaller counties, said Ann Sutton, chief counsel for the Marion County public defender’s office.

“I can only remember one other case going back to the ’80s,” Sutton said.

That was the trial of Brian Reese, who was convicted in November 2009 of attempted murder for shooting IMPD Officer Jason Fishburn. The trial was moved from Marion to Valparaiso in Porter County.

Indiana State Court Administration records show that 1,350 cases were moved from superior, civil and probate court to other counties in Indiana in 2011, the latest year figures are available. Sixty-nine of those cases were moved from Marion County. But Sutton speculated that most of them were probably civil cases.

Cases can be moved because of pre-trial publicity, allegations of judicial bias, conflicts of interest by the judge and a handful of other reasons.

The prosecutor and Bisard’s attorney, John Kautzman, gave Hawkins the names of three judges or counties — they wouldn’t say which — they would prefer. Each side will then be able to strike one choice.

Robinson said it is still possible that Hawkins would remain the judge wherever they move. She did not object to the change of venue. * * *

It costs more money to hold a trial somewhere else, and the state is responsible for the transportation, lodging and security. But moving a high-profile case like this won’t be much more expensive than sequestering the jury in a hotel, which would probably be necessary in Marion, experts said. Juries are sequestered to prevent them from reading or watching news about the case they are judging.

Moving the trial now also eliminates any chance of a verdict being overruled later because of a juror who was privy to publicity he or she shouldn’t have been. Robinson said it also eliminates the potential hassle of beginning the jury selection here, realizing it won’t work, and moving everything anyway.

Here is a long list of earlier ILB "Bisard" entries.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Ind. Trial Ct. Decisions