« December 17, 2012 | Main | December 19, 2012 »

Tuesday, December 18, 2012

Ind. Decisions - More on: Charges against Kristine Bunch reported dropped [Updated]

Updating this post from earlier today, WISHTV has posted this story, which includes the full statement released by Bunch's defense team.

[Updated Dec. 19] Tim Evans of the Indianapolis Star has this long story today. From the beginning:

The Decatur County prosecutor on Tuesday dismissed a murder charge against Bunch, 38, of Greensburg.

But the legal ordeal that has consumed nearly half of her life is likely to continue.

The charge was dismissed “without prejudice,” which means it can be refiled. And the prosecutor’s motion makes that possibility clear, saying the state may present evidence “to a grand jury at a later date.”

“We have not surrendered,” said Doug Brown, Decatur County’s chief deputy prosecutor. “We are still evaluating what (evidence) is available with the intention to go forward. Dismissing the case gives us the time we feel is appropriate to fully investigate what we need going forward.”

The latest legal maneuvers leave a cloud over Bunch nearly 17 years after her son died in a fire she was accused of setting, her attorney Ron Safer said. He said Bunch is not speaking publicly about the case at this time.

“She is relieved,” Safer said of her reaction to the dismissal of the murder charge. “But she also has to live with the Sword of Damocles over her head. Hopefully, the prosecutor will rectify that in short order.”

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - FWJG: "Meet in middle on gun legislation"

A thoughtful editorial today in the Fort Wayne Journal Gazette; it begins:

As the nation again examines how it regulates gun ownership in the wake of last week’s tragedy in Newtown, Conn., there seems to be some hope that reasonable, moderate Americans may be able to take the debate away from the extremists on either end of the issue.

In Indiana, that should mean repealing some of the nonsensical laws passed in recent years, borrowing from Texas standards for having a permit to carry a gun and looking at the need to keep guns secure.

The long editorial summarizes some recently enacted Indiana gun laws:
Indiana, however, requires no training or proof of skills – and allows Hoosiers to obtain a lifetime carry permit, ending a renewal process that could identify people who no longer qualify.

Three years ago, the Indianapolis Star – using the database of Indiana handgun permits – found that state police wrongly approved gun permits in Lake and Marion counties for Hoosiers with criminal histories. State lawmakers responded in their 2010 session – by making secret the previously open records of people who received state permits.

Also in that session, lawmakers passed a rare bill against the interests of businesses, creating a law allowing workers to keep guns in their cars parked at businesses. Previously, businesses had wide ability to regulate what employees can and cannot bring to their workplace property.

In 2011, lawmakers took away the ability of local officials to ban guns in government-owned buildings. But while the legislature insisted that citizens would be safer if they were allowed to take guns to city council meetings, members continued the no-gun restriction for their own sessions at the Indiana Statehouse.

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Indiana Law

Ind. Decisions - Charges against Kristine Bunch reported dropped

Updating earlier ILB entries on the widely-watched Kristine Bunch arson case, WRTV6 is reporting at noon: "BREAKING: Attorneys say charges dropped against a woman who spent 16 years in prison after conviction in a fire that killed her son." MORE

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (0):

In Timothy Schepers v. State of Indiana, a 9-page opinion, Judge Baker writes:

This case is before us on interlocutory appeal, where we determine whether Timothy Schepers’s right to a speedy trial under Indiana Criminal Rule 4 was violated. Schepers was charged with several criminal offenses, and the trial court appointed a public defender to represent him. Schepers subsequently filed a pro se motion to have the public defender removed as counsel and demanded a jury trial within seventy days pursuant to Criminal Rule 4.

After Schepers filed his motions and demand for a jury trial, and before a ruling was made on the request for removal of counsel, the trial court held a hearing and informed Schepers that it was appointing a special public defender to represent him. Schepers agreed to that appointment. When the trial court set a trial date beyond seventy days of Schepers’s pro se motion, Schepers moved to dismiss and the trial court subsequently held a hearing to determine whether a violation of Criminal Rule 4 had occurred.

Schepers was still represented by counsel when he filed his pro se motions, and Schepers’s filing of those motions did not amount to a request to proceed with hybrid representation. Additionally, Schepers’s subsequently-appointed counsel acquiesced to a trial date that was set beyond the seventy-day rule. For these reasons, we conclude that the trial court properly denied Schepers’s motion to dismiss. We therefore affirm and remand this cause for trial.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Dan Stranahan v. Debra Haines (NFP)

Trenton Jones v. State of Indiana (NFP)

Michael Dominique v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "The Disappearing Jury Trial in Indiana: Some Thoughts (and Stats) on the Past Five Years"

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Last year in courts across the state, less than 1,300 cases were resolved by jury trials. Although the numbers were down for both civil and criminal cases; the civil numbers seem especially low at 271.*

Why the Decline—and Does it Matter?

Applicants this summer for the vacancy created by Justice Sullivan’s retirement were asked a number of questions about their jury trial experience and their views on the jury system. The standard application form asks applications to “[d]escribe the extent of [their] jury experience, if any.” This question appears rooted in the statutory criteria that require the Commission consider an applicant’s “type of legal practice, including experience and reputation as a trial lawyer or trial judge.” No one was asked directly why there are so few jury trials or if the paucity was a positive or negative thing.

The reasons for the decline in the civil realm are ably explored many places, including a 2004 empirical article about the “vanishing trial” by the Litigation Section of the ABA and a 2012 essay by U.S. District Judge James E. Gritzner. These include the rise of alternative dispute resolution, the cost of trials as cases become more complex and require more expensive experts, and “judge hostility to trials.”

The increasing number of cases resolved by summary judgment mentioned in some states would appear less applicable in Indiana. As summarized in a post this summer, Indiana’s summary judgment makes a grant of summary judgment more unlikely than under the federal standard.

The decline in the criminal realm is less clear and perhaps not uniform across the state. Every defendant charged with a felony will presumptively have a jury trial unless they waive the right and either plead guilty or have a bench trial. Some prosecutors offer more generous plea agreements (and are more risk adverse) than others, and some defendants and defense lawyers are more willing than others to take cases to trial.

Wide variations by county and court

Despite the overall decline in [both civil and criminal] jury trials, some courts continue to hold an average of more than twenty jury trials each year. This chart shows the courts with the highest number of jury trials over the past five years. (It is not clear if one judge heard all of those trials or the judge was assisted by a magistrate or commissioner.)

Although caseloads vary considerably in courts around the state, it is interesting that the five courts with the highest number of jury trials are in Allen County (three of the top five) and St Joseph County (two of the top five). Rounding out the top ten are another St Joseph court, two from Marion County, and one each from Vanderburgh and Lake counties.

In contrast, many courts had no jury trials for a number of years. If a court hears only domestic relations, small claims, or juvenile cases, one would expect no jury trials because the right does not exist. But in some counties with only a Circuit Court, which necessarily hears every type of case, some judges have gone at least four years without a jury. For example, Martin County and Union County last had a jury trial in 2007; none were held in 2008-11.

Infractions/ordinance violations

Finally, although hundreds of thousands infractions are resolved each year in Indiana, only a handful of litigants exercise their right to a jury trial. The Court of Appeals made clear in a 2005 opinion that litigants charged with a traffic infraction have a right to trial by jury.

Conclusion

A resurgence of jury trials seems unlikely. Therefore, an emphasis on trial skills in law school and CLEs must (and to some extent already has) give way to classes and seminars on such things as ADR, negotiation skills, sentencing, and improved writing. And new Supreme Court decisions on plea negotiations arguably assume more significance than cases involving jury selection.

Unfortunately, fewer jury trials mean fewer lawyers, young and old, enjoy the experience described in Judge Gritzner’s article:

There is a special experience in my work that I enjoy all too infrequently anymore. It is when I take the bench and announce the jury has advised they have reached a verdict. I direct the court officer to bring the jury into the courtroom and a group of citizens of all stripes files into the jury box. Their faces often show the strain of their difficult task, but they also show the resolve of knowing they, as a group, have done their duty. Some may show emotion. Some may look as firm as a warden. But each face reveals an understanding of the importance of what they have just completed. The foreperson advises that they have reached a verdict and the form is brought to me. At that moment we all experience the purest form of democracy.
____________
*My review was limited to the last five years, in part because some of the older data struck me as potentially inaccurate. For example, the 2006 report lists 50 ordinance violation jury trials in Monroe Circuit Court 6, and the 2005 report shows 301 infraction jury trials in Frankfort City Court. (I also doubt there were 34 infraction jury trials in Benton Circuit Court in 2010.)

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Indiana Courts

Ind. Law - "Supporters say drinking 'raw milk' is about food freedom"

Updating earlier ILB entries on the sale of raw milk in Indiana, the Lafayette Journal Courier has a long story today by MaryJane Slaby adding content to the earlier reports. It begins:

Unpasteurized milk: It’s straight from the cow on the farm to the consumer’s glass without being heated to sterilize it with the intention of making it safer.

Sometimes it’s called “fresh milk,” but it’s more often known as “raw milk,” and Indiana is one of 20 states that prohibit the sale of raw milk for human consumption. And the legality of selling raw milk has become a hot topic both nationally and in Indiana.

“It’s not what it’s villain-ized to be,” said Linda Swihart, who supports the sale of raw milk. “Like any food, it can be done wrong.”

In the 2012 session of the Indiana General Assembly, a bill failed that would allow the sale of raw milk from dairy farms with 20 or fewer cows.

And at the beginning of the month, a panel created by the Indiana Board of Animal Health gave its recommendations in a report concerning raw milk, saying allowing raw milk would lead to human illnesses, but was “ultimately a political decision.”

The report offered two choices: Allow limited sales of raw milk but with sanitary requirements the board would set, or toughen current laws to close loopholes such as cow-shares, which is currently a legal way to buy raw milk.

But what’s caused the debate surrounding raw milk to become such a hot topic? Why do people want to buy and drink unpasteurized milk? And what could happen if the failed bill is reintroduced in 2013?

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to General Law Related