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Sunday, January 06, 2013

Law - More on: "A suburban New York newspaper is under fire from conservatives and gun rights advocates after publishing the names and addresses - and a locator map of people who possess pistol permits in several suburban counties"

Supplementing this ILB entry from Dec. 26th, Slate's "Political Gabfest" podcast on Friday, Jan. 4, has an excellent, balenced segment discussing the pros and cons of the decision by the White Plains NY Journal News to publish a map of gun permit owners. It starts at 24:30 into the program.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to General Law Related

Ind. Courts - Indiana attorneys plead guilty ...

"Elkhart attorney pleads guilty to theft" is the heading to this story by Sharon Hernandez in the Jan. 4th Elkhart Truth. Some quotes:

ELKHART — A local attorney pleaded guilty to theft, admitting he stole from a former client’s fund.

Juan Garcia, Jr. pleaded to the charge, a Class D felony, on Dec. 27. He faces a sentence of up to three years in prison as part of the agreement, according to a press release from the Elkhart County Prosecutor’s Office.

The state agreed to dismiss two charges of bribery in exchange for his plea to felony theft. He admitted he stole funds from a client between 2007 and 2012, depleting a personal injury settlement account that was set up for the benefit of a child. * * *

Garcia is scheduled to appear for his sentencing hearing Jan. 18 at 10:30 a.m. A copy of the court order reflecting his conviction was forwarded to the Indiana Supreme Court Disciplinary Commission.

[BTW, Mr. Garcia's photo bears an amazing resemblance to another Indiana attorney recently in the news.]

"One-time Carl Brizzi business partner to plead guilty in scheme to defraud bank, state" is the heading to this Jan. 4th Indianapolis Star story by Tim Evans and Carrie Ritchie that begins:

Indianapolis attorney and real estate developer Paul J. Page will cooperate in an undisclosed federal investigation after pleading guilty Friday to wire fraud in what prosecutors called a scheme to defraud a bank and the state.

Page, 48, entered the guilty plea after reaching an agreement with federal prosecutors in the case involving the purchase of an Elkhart office building that was leased to the Indiana Department of Child Services.

Page, a one-time business partner of former Marion County Prosecutor Carl Brizzi, was one of three Central Indiana men indicted on more than a dozen federal charges — including conspiracy to defraud, bank fraud, mail fraud and wire fraud. The case was filed in 2011 in U.S. District Court for the Northern District of Indiana in South Bend.

The two other defendants, John M. Bales II of Indianapolis and William E. Spencer of Carmel, have entered not guilty pleas and face a Jan. 28 trial.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to Indiana Courts

Law - " Laws are needed to remove the [Codis] databases from the exclusive grip of prosecutors and law enforcement to make them available to defense lawyers"

Some quotes from a front-page NY Times story Friday headed "Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data," reported by Ethan Bronner:

If proceedings go as his lawyers hope, Mr. Buffey’s story will be one more in the several hundred exonerations nationwide brought about partly by new DNA techniques, many involving false confessions. But it took 18 months of litigation to get the state to test the DNA against its database of felons, and Mr. Buffey’s lawyers say his case is therefore something more: proof that laws are needed to remove the databases from the exclusive grip of prosecutors and law enforcement to make them available to defense lawyers.

“There is incredible exculpatory power in the databases that the government has spent hundreds of millions of dollars on over the years,” said Nina Morrison, a senior lawyer in the case. “But law enforcement runs the databases, and even when you go to court to force their hand, they throw up roadblocks. And judges say they don’t have the power to force them.”

Steven Benjamin, president of the National Association of Criminal Defense Lawyers, said getting access to these databases was a major concern and one that is on the agenda of his group’s winter meeting next month in Washington.

“This is a national problem, a huge and recurring one,” he said. “Juries expect the defense to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the government, but they act like it does. Unless the defense is given access to this information, the playing field remains uneven in criminal justice.”

Almost every state has a law permitting some post-conviction DNA testing (although the Supreme Court has ruled that it is not a constitutional right). But only nine — Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North Carolina, Ohio and Texas — have laws granting defendants access to the DNA databases, known as the Combined DNA Index System, or Codis.

Many legal experts, even some prosecutors, think that number needs to be greatly expanded as states and the federal government increase the size of the databases.

“You’d think there would be a federal rule or a statute in every state creating the clear obligation to do a Codis search in any case where the defense wants it,” said Brandon L. Garrett, a professor of law at the University of Virginia.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to General Law Related

Ind. Courts - "Indy woman's suicide attempt, baby's death spark national cause"

Providing useful additions to this very long list of ILB entries on the Bei Bei Shuai case, Carrie Richie of the Indianapolis Star has written a lengthy (2 full interior pages), front-page feature recapping the entire case, plus a supplemental story on Ms. Shaui. A sample from the main story:

Now, two years after Angel’s death, the case of Bei Bei Shuai continues to raise provocative legal and moral questions.

For one, there is debate over whether Shuai’s actions were criminal, in part because there are issues of intent — hers and the law’s — but also because it’s not certain Angel’s death resulted from the rat poison.

But more broadly, the decision by Marion County Prosecutor Terry Curry to charge Shuai has thrust the case into the center of one of the most highly charged debates of our time — the rights of women vs. the rights of the unborn children they carry. * * *

Pence has tried to get the charges dropped, arguing that Shuai didn’t intend to kill her baby — she meant to kill herself — so the murder charge is inappropriate. And, she said, the attempted feticide charge is meant for people who attack pregnant women, causing the loss of their babies. It wasn’t supposed to be used against mothers who might do something that hurts their babies while they’re in the womb.

[Defense attorney Linda] Pence cited a case in which the Indiana Supreme Court ruled that a woman couldn’t be charged with neglect for ingesting cocaine while she was pregnant.

But Curry, a Democrat, said his hands were tied because he thinks Shuai’s actions fit the definitions of murder and feticide as the laws are written.

According to Indiana law, it is murder to “knowingly or intentionally kill a fetus that has attained viability.” And, “a person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide, a class B felony.” * * *

The Indiana Court of Appeals allowed Shuai to bond out of jail — a rarity in murder cases — because Pence raised doubt about whether the rat poison caused Angel’s death.

The chemical in the rat poison Shuai ate does not cross into the placenta easily because of its molecular structure, according to research cited in court documents. And in the only similar documented case Pence could find, both the mother and the baby lived, Pence said.

Pence also cited other potential causes of death, including the indomethacin that was given to Shuai to prevent her from having contractions. The drug can cause hemorrhages in babies.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to Indiana Courts

Law - "Pa. home sellers can keep murders, suicides secret" But what about Indiana?

Thanks to How Appealing (which links to the opinion), here is a Jan. 5th story by Sam Wood of the Philadelphia Inquirer - some quotes:

Planning on buying a house this year?

If you're even slightly squeamish, get ready to do some extra detective work.

If the property was the site of a bloody crime, the seller does not have to divulge that scrap of information.

In a decision handed down last week, a panel of Pennsylvania Superior Court judges reaffirmed that the sordid reputation of a home - no matter how gruesome - does not count as a "material defect" and does not have to be disclosed to a buyer.

"The fact that a murder once occurred in a house falls into that category of home-buyer concerns best left to caveat emptor" - let the buyer beware - the appeals court wrote.

For those shopping on the other side of the Delaware, the same applies in New Jersey. * * *

According to the court decision, the Jaconos and their real estate agents, Re/Max, knew about the home's history. They called the state Real Estate Commission, which assured them that they were not required to disclose that information.

Milliken sued, arguing that she never would have bought the house had she been aware of the grisly events.

Brokers often consider "stigmatized" the houses that have been the scenes of murders or suicides. The term also encompasses the belief that a house might be haunted. * * *

The upshot to Milliken v. Jacono et al? If living in a former crime scene would keep you from a night's sleep, real estate experts say, ask for a written warranty in the agreement of sale that states the home was never the site of a murder, suicide, or other felony.

What about Indiana? Recall this July 2, 2007 ILB entry headed "Woman didn't know rental house was murder scene." From the Fort Wayne Journal Gazette story quoted:
State law does not require an agent to tell a prospective homebuyer or renter if a death occurred in the house unless the agent is specifically asked. Mitchell said her parents thought the house was the site of one of the city’s most gruesome homicides in recent years, but when she asked her landlord whether anything had happened in the house, she said he said no.
The end of the lengthy entry quotes from the 2002 Indiana statute, "Psychologically Affected Properties." Some provisions of the Indiana law:
IC 32-21-6-5 Disclosure not required
Sec. 5. An owner or agent is not required to disclose to a transferee any knowledge of a psychologically affected property in a real estate transaction.

IC 32-21-6-6 Refusal to disclose; misrepresentation
Sec. 6. An owner or agent is not liable for the refusal to disclose to a transferee:
(1) that a dwelling or real estate is a psychologically affected property; or
(2) details concerning the psychologically affected nature of the dwelling or real estate.
However, an owner or agent may not intentionally misrepresent a fact concerning a psychologically affected property in response to a direct inquiry from a transferee.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to General Law Related

Ind. courts - "Judge Alevizos tells bank robbery suspect he's to blame for his heroin addiction"

Stan Maddux reports in the NWI Times in a story that begins:

LAPORTE | A LaPorte bank robbery suspect on Friday blamed the judicial system for not curing his heroin addiction during a previous stint behind bars.

Ryan Mounts, 32, was arraigned on a Class C felony robbery charge linked to a Dec. 27 robbery at the Fifth Third Bank in the 800 block of Monroe Street. His bond was set at $100,000.

Mounts seemed to be arguing for a reduction in his bond when he claimed not enough was done during his previous incarceration to help him get a handle on his heroin addiction.

“I failed three drug tests for heroin. I was asking for help,” said Mounts, who served time in prison for robbing a LaPorte tobacco store at gunpoint in 2008.

LaPorte Circuit Judge Tom Alevizos interrupted, telling Mounts that blame rests with himself.

“I think people are responsible for their own actions, and when I sit here I get really sick and tired of people trying to blame other people for their actions,” Alevizos said. “I would stop talking if I were you."

The judge granted Mounts' request for a speedy trial and scheduled the case to go before a jury starting Feb. 4.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to Indiana Courts

Ind. Courts - Two significant trial court school rulings in December

The NWI Times had this Dec. 31st story by Carmen McCollum that began:

The Indiana Department of Education intends to appeal a recent Marion County court ruling that calls into question student counting procedures.

Marion County Superior Court Judge Patrick McCarty ruled against the Indiana State Board of Education in early December. The judge said the state improperly counted about 1,500 Indianapolis Public Schools students as registered at four schools that were taken over by the state, even though those students had transferred to other IPS schools before the current school year began.

The Indianapolis Star reported then that the ruling means more than $6 million in student funding transferred from IPS to the schools' private operators should not have been taken away. * * *

IDOE spokeswoman Stephanie Sample said Monday that while nothing is happening right now, the state intends to file an appeal. She said the judgment applies to the section of law governing the entire state, meaning "it applies beyond just IPS."

Updating this Dec. 19th ILB entry headed "Judge OKs sale of 2 vacant public schools," a FWJG editorial dated Dec. 26th and headed "A sensible ruling for public schools," began:
Allen Superior Court Judge Nancy Boyer restored some common sense to the state’s misguided and conflicting policy affecting how traditional public school districts treat closed school buildings. The policy had conflicted with other state laws, was bad for taxpayers and – in at least one case involving East Allen County Schools – had the opposite effect of its goal of broadening school choice for parents.

Boyer ruled that state law does not prevent EACS from selling its vacant Monroeville Elementary School to the area Catholic diocese for use as a parochial school. The district sought clarity from the court after the Indiana Public Charter Schools Association sued Fort Wayne Community Schools to block its sale of the shuttered Pleasant Center Elementary School to the airport authority, owner of nearby Fort Wayne International Airport.

Both lawsuits centered on a 2011 law that requires traditional public school corporations to sell or lease any unused building to a charter school for $1. The law appears to require – and the charter schools group argued – that public school corporations must wait four years to dispose of any building, in case a charter school wants it.

Earlier, on Nov. 23rd, the Supreme Court heard oral argument in the case of Teresa Meredith et al. v. Mitch Daniels, et al, the school voucher challenge.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to Indiana Courts