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Thursday, January 10, 2013

Ind. Decisions - Attorney General will appeal Gingerich ruling to Indiana Supreme Court

Today was the last day for the State to appeal the Court of Appeals decision reversing the trial court in the case of Paul Henry Gingerich. Today the Attorney General filing a petition with the Supreme Court, asking the Court to reverse the COA ruling.

Here is a long list of earlier ILB entries. This Dec. 13, 2012 entry quotes from a Fort Wayne Journal Gazette editorial, including:

The Indiana Court of Appeals judges have determined something advocates for justice already knew: A Kosciusko County boy was deprived of due process rights when a judge rushed through a hearing that sent the 12-year-old to adult court on a murder charge. * * *

Gingerich – an 80-pound sixth-grader when he was accused of helping a friend kill the friend’s stepfather – pleaded guilty to conspiracy to commit murder and was sentenced to 25 years in prison. The appeals court rightly sent the case back to juvenile court for another waiver hearing.

Typically, Indiana’s attorney general would appeal this week’s ruling to the state Supreme Court, particularly if a precedent were at stake. But case law is already clear, and Attorney General Greg Zoeller’s office said his office will study whether to appeal.

“Among the most disheartening cases seen in the criminal justice system are those involving young people charged with extremely violent crimes,” Zoeller said. “For prosecutors and judges, these are among the most difficult cases as well in terms of balancing the rights of the juvenile with the safety of the community. We will carefully review our options after consulting with the county prosecutor and conducting further research.”

Zoeller might appeal, but he could conclude that the ruling is so obviously the right one that justice would be best served by sending Gingerich back to juvenile court for a proper hearing.

Make no mistake, deciding how to treat a 12-year-old who helped kill someone is no easy matter. And regardless of age, the boy helped kill Philip Danner. But Indiana’s constitution emphasizes that the criminal justice system is based on reformation, not vindictive punishment, and that is especially true for a child. Kosciusko officials were wrong to simply send Gingerich to adult court without a true and thorough investigation into the boy’s competency and options for incarceration.

Now, he will finally receive the evaluation justice demands.

Here is the Attorney General's news release today:
Today Indiana Attorney General Greg Zoeller announced that his office will appeal the December 11 ruling of the Indiana Court of Appeals in the Paul Gingerich case to the Indiana Supreme Court. Gingerich is serving a 25-year-sentence after pleading guilty to an adult charge of conspiracy to commit murder. Today’s filing of a Petition to Transfer means that the state’s highest court will ultimately decide whether to uphold Gingerich’s guilty plea and sentence.

The Attorney General’s Office represents the prosecution in appellate court. Zoeller today issued this statement:

“Balancing the interests of justice when an offender is so young is extremely difficult. In working with prosecutors, my office is concerned about not setting a precedent that would allow violent offenders to back out of their plea agreements after pleading guilty. Mindful of the deceased victim in this tragic case, we respectfully request the Indiana Supreme Court consider this appeal and make the final determination,” Zoeller said.

Gingerich had pleaded guilty to an adult charge of conspiracy to commit murder in the 2010 shooting death of Philip Danner. The Indiana Court of Appeals on December 11 reversed the guilty plea and ordered the case sent back to the Kosciusko County courts; and today was the deadline for the Attorney General to appeal that ruling. The State’s Petition to Transfer means the Court of Appeals’ order will be stayed and Gingerich remains in Department of Correction custody pending a ruling by the Indiana Supreme Court.

Here is a copy of the State's 20-page petition to transfer.

What happens next? Gingerich's attorney will have an opportunity to file a response, then the Supreme Court will decide whether to grant transfer and consider the issue(s) itself, or allow the Court of Appeals ruling to stand.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re sex offender registry

In Andre Gonzalez v. State of Indiana, an 11-page, 5-0 opinion, Chief Justice Dickson writes:

After the defendant had fully served his sentence of imprisonment and probation for Child Solicitation, and during the ten-year period of his required registration as a sex offender, the statutory registration requirement was amended to require lifetime registration in certain circumstances. The defendant's offense fell within these circumstances. Upon completion of his ten-year registration requirement, the defendant unsuccessfully sought his removal from the Sex Offender Registry, claiming refuge under the Indiana Constitution's prohibition against ex post facto laws. We hold that, under the facts of this case and as applied to this defendant, the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of the lifetime registration requirement. * * *

We apply the seven Mendoza-Martinez factors to guide our evaluation of the defendant's claim that, as applied to him, the retroactive imposition of a lifetime registration period violates the Ex Post Facto Clause. Our task is not merely to determine whether there are more punitive or non-punitive factors, but to consider them collectively to determine whether the application of the challenged statute's effects upon the defendant are so punitive in nature as to constitute a criminal penalty. See Wallace, 905 N.E.2d 378–79. The underlying conviction of the defendant for Child Solicitation was for a D felony, the lowest class of felony under Indiana's criminal code. Although the defendant was sentenced to the maximum term of three years, eighteen months were suspended to probation. Because of the nature of the offense, the then-prevailing statutes required him to register as a sex offender for ten years, which registration he completed. As we collectively weigh the punitive and non-punitive nature of the seven factors as they apply to this defendant and his circumstances, we find that to apply the 2006 amendments so as to subject this defendant to a lifetime registration requirement violates the Ex Post Facto Clause of the Indiana Constitution.

We reverse the denial of the defendant's petition to remove the lifetime registration requirement and remand for further proceedings consistent with this opinion.

David, Massa, Rush, JJ., concur.
Rucker, J. concurs in result.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Collect DNA from every felony arrestee?

From a press release:

STATEHOUSE (Jan. 10, 2013) — State Sen. Tom Wyss (R-Fort Wayne) today announced legislation aimed at improving criminal prosecution and establishing a statewide DNA database.

Senate Bill 245 would require every person arrested for a felony to submit a DNA sample for inclusion in the Indiana DNA Database. In the event he or she is acquitted of all charges, the charges are reversed or the case is dismissed, the sample may be removed via request.

See this Sept. 18, 2012 National Institute of Justice report - some quotes from the introduction:
Twenty-eight states and the federal government have enacted laws that authorize such collection. Yet despite their widespread adoption, little is known about the investigative utility of collecting DNA from arrestees or how expanded DNA collection laws affect the collecting agencies and state crime laboratories responsible for their implementation.

This article explores the latter issue — how key provisions in arrestee DNA legislation influence the activities associated with DNA collection and analysis. Information in this article was derived from a review of state and federal laws and from interviews with state crime laboratory representatives in 26 of the 28 states that passed legislation authorizing collection of DNA from some subset of arrestees.[4] This data collection is part of an NIJ-funded Urban Institute project examining the collection of DNA from arrestees.

See also the Jan. 6, 2013 ILB entry headed " Laws are needed to remove the [Codis] databases from the exclusive grip of prosecutors and law enforcement to make them available to defense lawyers."

See also this AP story from Sept. 17, 2012 about an ACLU 9th Circuit challenge to a California requirement - a quote:

The ACLU is asking the 9th U.S. Circuit Court of Appeals to strike down California's Proposition 69, which authorized police to obtain a genetic sample from every person arrested on felony charges, not just those convicted. Some 25 other states have enacted similar laws since 62 percent of the California electorate passed the measure in 2004.

The issue of the warrantless swabbing of the cheek with a Q-tip of everyone arrested for a felony has sparked one of the hottest "search and seizure" debates in state and federal courts in decades.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Indiana Law

Ind. Gov't. - Rooster captured on The Circle, in the empty, for the season, Soldiers & Sailors Monument fountain

Adding to the ILB's long list of "chicken underground" entries, see this IndyStar story and don't miss video, by Jill Disis and Amy Bartner.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Indiana Government

Ind. Decisions - 7th Circuit clarifies some issues re Franks v. Delaware

In a 24-page opinion in an Illinois case, U.S. v. McMurtrey, Circuit Judge Hamilton writes:

If police officers obtain a search warrant by deliberately or recklessly providing the issuing court with false, material information, the search warrant is invalid. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that when a defendant makes a substantial preliminary showing that the police procured a warrant to search his property with deliberate or reckless misrepresentations in the warrant affidavit, and where such statements were necessary to the finding of probable cause, the Fourth Amendment entitles the defendant to an evidentiary hearing to show the warrant was invalid. In this appeal we attempt to clarify some issues concerning the procedures a district court may or must use in evaluating a criminal defendant’s motion to suppress evidence under Franks.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Marc Warren v. State of Indiana (NFP)

Carl E. Bowman v. State of Indiana (NFP)

Miguel Castillo v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court exercises reciprocal discipline over attorney disbarred in Arizona

The Jan. 8, 2013 order is In the Matter of Mark J. Hughes.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Amended order amending parenting time guidelines

The Supreme Court has posted a 33-page order, filed Jan. 7, 2013, titled "Amended Order Amending Indiana Parenting Time Guidelines." This order supersedes the previous order issued on December 18, 2012. The amendments are effective March 1, 2013.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Indiana Courts

Courts - More on "Do police need a court order to get a blood sample from an individual suspected of drunk driving?"

Updating this Jan. 7th ILB entry, here is NPR's Nina Totenberg's 5-minute report on the oral argument, headed "Supreme Court Weighs Warrantless Blood Tests In Drunken-Driving Cases."

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Courts in general

Law - "Legal experts dispute Republican's proposal to authorize Indiana to declare federal laws unconstitutional"

That is the headline to this story by Chris Morisse Vizza in the Lafayette Journal Courier. The bill, introduced by Sen. Phil Boots, R-Crawfordsville, is SB 230, and is worth a look. From the story:

[Boots] is also quoted as saying he’ll ask Senate President Pro Tem David Long to give Senate Bill 230 a hearing, even though Long assigned it to the Rules Committee, where it will likely stay.
See also this thorough story by Dan Carden of the NWI Times - some quotes:
INDIANAPOLIS | When the U.S. Supreme Court in 1958 explicitly struck down nullification, the theory that states can declare federal laws unconstitutional and ignore them, the court warned state legislators that endorsing nullification violates their oath to support and defend the U.S. Constitution.

State Sen. Phil Boots, R-Crawfordsville, doesn't care.

"I think our state's rights have been illegitimately violated by the federal government and I think it's something that we need to address," Boots said. "Somebody at some point has to take a stand. We have to stand up for what the Constitution says and right now, no one is doing that."

Boots is sponsor of Senate Bill 230, which authorizes the Indiana General Assembly to declare federal laws unconstitutional. Any person caught implementing or enforcing a federal law declared void by Indiana would be guilty of a Class D felony, punishable by up to three years in prison.

The legislation specifically finds the 2010 Affordable Care Act, also known as Obamacare, exceeds the powers of the federal government and is therefore unenforceable in Indiana.

That contravenes a June 2012 U.S. Supreme Court ruling that Obamacare is constitutional.

"The Supreme Court is misinterpreting the Constitution," Boots said. "We've seen case after case after case of the federal government telling us what to do and I don't think they have the authority to do that."

Boots contends that states created the federal government and gave Congress a list of specific enumerated powers. He said any action taken by Congress is illegitimate if it's not on that list, and the states, not the Supreme Court, have the authority to determine the legitimacy of federal laws.

That argument for nullification has been made several times in U.S. history, most often by southern state lawmakers seeking to protect the institution of slavery prior to the Civil War and trying to prevent racial integration of public schools during the 20th century.

U.S. courts have repeatedly struck down state attempts to nullify federal law.

In the most significant ruling, Cooper v. Aaron (1958), the Supreme Court declared the supremacy clause of the U.S. Constitution makes nullification impossible, as federal law is always superior to state law.

In that decision, the nation's high court also instructed state lawmakers, like Boots, that refusing to accept the supremacy of federal law, and the authority of the Supreme Court to interpret it, is "war against the Constitution" and a violation of their oath to support America's primary governing document.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Indiana Law

Ind. Decisions - More on: Notre Dame sues feds over requirement to provide insurance coverage for contraceptives

Updating this May 21, 2012 ILB entry, which includes a link to the complaint, Tom Moore and Margaret Fosmoe of the South Bend Tribune report in a story filed yesterday afternoon that begins:

A federal judge has dismissed a lawsuit by the University of Notre Dame challenging the constitutionality of the Patient Protection and Affordable Care Act requiring employers to provide birth-control coverage.

The lawsuit, filed last May, challenges federal regulation requiring religious organizations to provide health insurance coverage for contraception and abortion-inducing drugs. The suit argues that such a regulation goes against Catholic Church teachings.

U.S. District Court Judge Robert L. Miller ruled Jan. 2 [sic] that the case lacks jurisdiction because Notre Dame and other “religious employers” were granted a yearlong “safe harbor” from enforcement of the regulations until Aug. 1, meaning Notre Dame’s claims are not ripe.

ILB: Here is a copy of the Dec. 31, 2012 ruling.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind Fed D.Ct. Decisions