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Friday, January 11, 2013

Ind. Decisions - "US-born Taliban fighter John Walker Lindh wins prison prayer lawsuit"

Updating a long list of earlier ILB entries, here is today's 30-page ruling by SD Ind.Judge Jane Magnus-Stinson in the case of John Lindh v. Warden, Federal Correctional Institution, Terre Haute, Indiana. It concludes:

In passing the Religious Freedom and Restoration Act, the United States Congress restricted the ability of federal prison wardens to substantially burden the sincerely held religious beliefs of inmates. Such burdens can only be imposed to further a compelling governmental interest, and by use of the least restrictive means. Throughout this action, the Warden has argued for deference to his decisions, yet he has not given appropriate deference to the standard imposed by Congress. Accordingly, the Court finds that the Warden’s policy prohibiting daily group prayer by Muslim inmates violates RFRA. The Warden will have 60 days in which to employ a new policy with respect to daily group prayer for Muslims. The Court is issuing today a permanent injunction to take effect in 60 days.
Here is the Indianapolis Star coverage, posted early this evening, written by Kristine Guerra. Some quotes:
A federal judge has ruled in favor of “American Taliban” fighter John Walker Lindh’s challenge to a federal prison in Terre Haute on its restrictions on group prayer.

According to the ruling by U.S. District Judge Jane Magnus Stinson, Lindh and other Muslims housed in the Federal Correctional Institution should be allowed to pray in groups and “the denial of daily group prayer opportunities substantially burdens Mr. Lindh’s religious beliefs.”

Lindh is serving a 20-year sentence at the federal penitentiary in Terra Haute after pleading guilty to supplying services to the Taliban and carrying an a explosive while committing a felony.

During his testimony last August, Lindh said prison procedures on group prayers must change and that they force him to sin because Islam requires him to pray five times a day and with other Muslims, if possible. * * *

Ken Falk, Lindh's attorney and legal director of the American Civil Liberties Union, said the key factor in the court's decision is the government's failure to prove that group prayers pose security threats.

"What we presented to the judge is that it made no sense to have a prison setting where prisoners are free to engage in all sorts of activities and say that they cannot pray together," Falk said. "Law requires that the government present compelling reason why religious practice should be denied and the government failed to do that."

The government is looking at the possibility of filing at an appeal, U.S. Attorney Joseph Hogsett said in a statement.

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Who speaks for Indiana at the federal level?

Attorney General Zoeller has just issued a press release headed "Zoeller appoints deputy attorney general to serve in Washington, D.C." Some quotes:

Citing the growth in federal government activity that impacts Indiana government that the state must monitor, Indiana Attorney General Greg Zoeller today announced that he will assign a deputy attorney general to serve in the nation’s capital in Washington, D.C.

Deputy Attorney General Richard M. Bramer will work with members of Indiana’s congressional delegation to monitor and review bills moving through Congress and proposed regulations moving through federal agencies. The deputy AG will advise the Attorney General’s Office of upcoming issues so that the State of Indiana can make its position known and recommend action if necessary. And he will seek opportunities for state government to provide testimony to committees and regulatory agencies.

“Lobbyists and special interest groups live in Washington and have regular access to Congress and they often work to undercut the authority of state governments and centralize the authority of the federal government by claiming the states are only a ‘crazy-quilt patchwork’ of inconsistent jurisdictions. From my own experience I know that a physical presence at the Capitol succeeds better in dealing with the federal government than sending a letter,” Zoeller said.

Also this session two bills, SB 36 and HB 1033, have been introduced to "permit the AG to employ deputies or assistants to review and monitor federal legislation and other actions that may affect Indiana, and provides that the deputies or assistants may take actions that the attorney general finds necessary to address the legislation or other actions. Provides that the deputies or assistants may reside in or around Washington, D.C."

The ILB has commented before on whether it is the Governor, or the Attorney General, who should define the State's legal and policy positions:

July 27, 2009 - "Ind. Gov't. - Who should decide Indiana's position on national legal issues? Who should know?"

March 30, 2010 - "Law - Who is in charge of determining a state's legal position? A governor or an attorney general?"

Aug. 23, 2012 - "Ind. Gov't. - Who should decide Indiana's position on national legal issues? Who should know?"

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Government

Ind. Courts - Marion Superior Court Judicial Vacancy

The ILB would have posted Gary L. Miller's name earlier today, but has been waiting for the official word from the Governor's office. Still waiting ...

Governor Daniels has appointed Gary L. Miller to fill the vacancy on the Marion County Superior Court.

Leslie Shively has been appointed to the Vanderburgh Superior Court.

This marks the last of Governor's Daniels' judicial appointments

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Courts

Ind. Law - "Sen. Head Proposes Legislation to Improve Tests for Intoxication"

That is the heading of a press release today:

State Sen. Randy Head (R-Logansport) today announced he is authoring legislation that would improve tests for intoxication in the event of a drunk driving accident.

Senate Bill 168 amends the policy on blood-alcohol content tests to allow any qualified, properly trained individual to take a bodily substance sample and have it used in court. Currently, the law only lets licensed physicians, nurses or advanced emergency medical technicians obtain samples that can be used as evidence.

“This is a loophole that could allow drunk drivers’ fluid samples to be thrown out of court because they weren’t taken by an authorized person,” Head said. “In instances where a victim dies or is seriously injured, that technicality could keep the driver from being held responsible. We must make sure drunk drivers are held accountable in court.”

The bill also specifies that a court is not prohibited from issuing a search warrant to attain a bodily substance sample from an individual suspected of driving while intoxicated.

See this ILB entry from March 21, 2010 about the changes made to subsection (j) in 2010 aimed at "clarifying" the law.

But on Aug. 23, 2010 the ILB posted an entry headed "Blood draw law might benefit from another look by the legislature." It concluded:

Take a look at the entire IC 9-30-6-6, including the changes made to subsection (j) earlier this year.
My thoughts: I got lost half way through. The General Assembly should consider redrafting this entire section to clearly state its intent.
IC 9-30-6-6(j) was amended again in 2012, by PL 77-2012 (HEA 1186-2012), SECTION 3 (p.6)

And 2013's SB 168, if successful, would make additional changes to subsection (j), plus add a new (k).

My view: Rather than limited efforts to clarify and plug loopholes, perhaps IC 9-30-6-6 could benefit from a complete rewrite.

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Law

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

Updating this ILB entry from last evening, here are some quotes from Robert King's story today in the Indianpolis Star:

If Indiana Attorney General Greg Zoeller gets his way, a boy believed to be the youngest Hoosier ever sent to prison as an adult will stay there, without a chance at a new hearing.

Zoeller said Thursday that his office would appeal an Indiana Court of Appeals ruling last month regarding Paul Henry Gingerich, who was 12 when he pleaded guilty to conspiracy to commit murder in the death of his friend’s stepfather.

Zoeller is asking the state Supreme Court to reverse the ruling, which said the court in Kosciusko County erred by not giving Gingerich’s attorneys more time to prepare arguments that his case should stay in juvenile court. They were given five days; similar cases in Marion County and elsewhere get three months. * * *

Zoeller, in his filing, said the reversal by the appeals court presents a danger: If Gingerich is given a new hearing after pleading guilty, it will upset the plea-bargaining process. * * *

Indianapolis attorney Monica Foster took Gingerich’s case, pro bono, after he was sent to jail. She argued successfully before the appeals court that Gingerich’s case never should have gone to the guilty plea, that at age 12 he was too young to understand the process, and that his attorneys weren’t given time to show that.

After winning at the appeals court, Foster planned for the case to go back to the juvenile court in Kosciusko County, likely in the spring.

If the case reaches the Supreme Court, the process could take another year.

Foster called Zoeller’s appeal a “waste of taxpayers time’ and the resources of the court.”

“In America, you get more than five days to prepare for the most important hearing of your life, and when you don’t, you get a do-over,” Foster said. “I’m very disappointed in the government, yes. I will defend this case to the gates of hell.”

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Confusion over Pence’s approach to tort reform continues"

Eric Bradner of the Evansville Courier & Press, in the paper's blog, Capitol Journal, has posted a roundup of information on Gov.-elect Pence's potential focus on tort reform in his legislative agenda.

Mary Beth Schneider reports today in the Indianapolis Star in a long story headed "Indiana legislature bill would make losers of civil court actions pay all legal costs," that begins:

You won’t find tort reform in Gov.-elect Mike Pence’s “road map,” the agenda he laid out in his campaign.

Nor did Pence spend time as a candidate talking about making the losing side in all civil court actions pay all the legal costs.

But that, apparently, is among the issues he will pursue in the legislature.

State Sen. Mike Delph, R-Carmel, said he filed Senate Bill 88 at the request of the incoming Pence administration.

“A member of Pence’s staff asked me to do it,” said Delph, an attorney. “This was not on my radar till they asked me to do it. I’m just trying to be supportive of the governor-elect. . . . I feel like the governor-elect is the leader of our party, and I wanted to try to do what I could to be of help to him.”

The bill would take away the discretion of judges and juries to decide legal fees and instead says the court must make whichever side loses pay them. * * *

Tort reform has been championed by business groups for years as a way to protect them from frivolous lawsuits, and Pence has supported it as a member of Congress. But he never initiated a “losers pay” bill in Congress, and the only tort reform bills he co-sponsored were in 2003.

Making tort reform part of his legislative agenda as governor would give it a stature far above the myriad of other issues Pence merely supports or opposes. It virtually guarantees it would get at least a hearing in a legislature where Republicans hold supermajorities in both the House and Senate.

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Law

Ind. Law - More on: Constitutional issues with several judiciary-related bills

Updating this ILB entry from January 9th, the ILB has received this correction from Lesley Stedman Weidenbener, Managing editor, TheStatehouseFile:

A story published by TheStatehouseFile.com on Wednesday should have said that a bill to remove a mandatory retirement age for the state’s appellate court justices would not affect Chief Justice Brent Dickson. The Indiana Constitution requires that appellate judges retire at the age specified by law at the start of their current term.

TheStatehouseFile.com regrets the error.

We are terribly sorry for the mistake but we always want to correct our errors. Please let us know if you ever run across a mistake we need to correct.

Thank you. -Lesley

A straight-up apology from an excellent student newsservice run by Franklin College. Here is a link to the corrected story in TheStatehouseFile (subscription required).

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Law

Ind. Decisions - Supreme Court grants transfer in KW v. State

In one of the cases argued yesterday before the Supreme Court, K.W. v. State of Indiana (worth watching), the Supreme Court had not decided whether to grant transfer - here is the calendar write-up:

Based on an in-school encounter with a police officer serving as a school liaison officer, K.W. was adjudicated delinquent for an act that would be resisting law enforcement if committed by an adult. The Court of Appeals reversed, holding the officer was not engaged in the execution of the officer’s duties as a law enforcement officer at the time of the encounter. K.W. v. State 976 N.E.2d 61 (Ind. Ct. App. Aug. 28, 2012), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
Today the docket entry shows:
CAUSE NO.: 49S02-1301-JV-00020
LOWER COURT CAUSE NO.: 49D091109JD2341

K.W. V. STATE OF INDIANA

YOU ARE HEREBY NOTIFIED THAT THE SUPREME COURT HAS ON THIS
DAY, 01/10/2013, ORDERED AS FOLLOWS:

APPELLEE'S PETITION FOR TRANSFER IS HEREBY GRANTED.
BRENT E. DICKSON, CHIEF JUSTICE
(ORDER REC'D 01/10/13 AT 3:30 P.M.) ENTERED ON 01/11/13 KJ

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Transfer Lists

Ind. Law - Proposed bill would clean criminal record

Maureen Hayden, CNHI Statehouse Bureau, reported January 9th:

INDIANAPOLIS — Republican State Rep. Jud McMillin calls himself a “do-the-crime, do-the-time kind of guy” but says it’s time for Indiana to build some more forgiveness into the criminal justice system.

McMillin, a former deputy prosecutor from Brookville, plans on filing a bill soon that would allow judges to expunge an old arrest or conviction from someone’s record if that person could show they’ve redeemed themselves.

The goal is to make it easier for people who committed a non-violent crime in the past to erase their criminal history and have a better shot at getting a job or accessing other opportunities often denied to people with a record.

McMillin said his legislation fits with Indiana’s constitutional call for a criminal justice system that is built on “restorative justice.” * * *

Indiana currently has a criminal records “sealing” law that allows people with long ago, low-level arrests or convictions to get a court order to shield that record from public view.

McMillin’s bill would go farther: It would create a mechanism that doesn’t currently exist in Indiana by giving judges the authority to remove an arrest or conviction from a criminal record.

While the sealing bill applies to certain misdemeanors and Class D felonies, McMillin’s bill would allow judges to expunge some Class B and Class C felonies from the records.

There are conditions on who would be eligible. There would be a waiting period of at least five years after a sentence is completed; violent crimes and sex crimes couldn’t be expunged; and the person seeking the expungement would have to show they’d stayed out of trouble.

At least 26 states already allow some felonies to be expunged. * * *

One issue that won’t be easily resolved is what to do with criminal information on the Internet. McMillin’s bill would require companies that do employment background screenings to update their records, but can’t force the removal of information in digital archives that can publicly accessed over the Internet.

But McMillin said having a court order that shows a criminal record has been expunged may be helpful to someone seeking a job because that court order can be shown to a potential employer.

“At least it gives someone an argument to say to that employer, ‘I paid my debt to society and shown the state of Indiana that I’ve reformed myself,” McMillin said.

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Jasmine Snow v. Robert Hicks (NFP)

NFP criminal opinions today (1):

Dejuan T. Lowe v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion Superior Court Judicial Vacancy

The ILB has received word of the selection made by Governor Daniels to fill the vacancy on the Marion County Superior Court. Check back for name ...

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Courts