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Thursday, January 17, 2013

Courts - More on "Indiana Farmer Tackling Monsanto's Seed Policy Gets A Day In Supreme Court"

Updating this ILB entry from Oct. 17, 2012, Alison Frankel's "On the Case" column today is headed "Supreme Court conundrum: How far does a soybean seed patent go?" begins:

Jan 17 (Reuters) - Vernon Hugh Bowman is the rare Indiana soybean farmer destined for immortality as a U.S. Supreme Court caption.

Bowman had the temerity to attempt to outwit Monsanto, the giant agriculture company that, as you surely know, invested hundreds of millions of dollars and years of research in the creation of soybean seeds that are genetically modified to withstand the herbicide glyphosate, which Monsanto markets as Roundup. The genetically modified seeds, according to the Supreme Court brief Monsanto filed Wednesday, have been such a hit with farmers that more than 90 percent of the U.S. soybean crop begins with Monsanto's Roundup Ready seeds. Given that every soybean plant produces enough seeds to grow 80 more plants -- and that soybeans grown from Roundup Ready seeds contain the genetic modification of glyphosate resistance -- Monsanto has insisted that farmers sign licensing agreements with strict restrictions. Soybean producers are only supposed to use the Roundup Ready seeds they buy to grow crops in a single season, and they're forbidden from planting second-generation seeds harvested from first-generation crops.

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Courts in general

Ind. Courts - More on "End-of-life case splits family"

Updating this ILB entry from Jan. 14th, Tim Evans reports in today's Indianapolis Star in a long story headed "Daughter vows to fight on for her gravely ill Carmel father." It begins:

Susan Rissman vows that the fight to keep her father alive is not over — despite a crushing court ruling Wednesday.

“We’re not going to quit,” Rissman told The Indianapolis Star. “I don’t know what else I can do, but I can’t give up on my dad.”

Her comments came after Hamilton Superior Court Judge Steven Nation refused a request to appoint a guardian or order a review of St. Vincent Indianapolis Hospital’s care of her 88-year-old father, Paul G. Smith, who was removed from a ventilator Jan.7 and had a feeding tube removed the next day.

Rissman went to court to force doctors at St. Vincent’s to resume active treatment of her father. But Nation ruled his care can be guided by a 2004 living will that says he doesn’t want his life prolonged by artificial means, even though Rissman and others insist that Smith — who has asked for food and water — is still capable of making that decision for himself.

It was unclear Wednesday what legal or medical options Rissman might be able to pursue. But the more pressing concern is time.

Smith is gravely ill, and, according to testimony Wednesday from his doctors, the retired attorney and former Hamilton County court magistrate already has outlived their expectations.

Rissman has been her father’s primary caregiver for the past several years, but another daughter, Judith Sly, has been designated his health-care representative based on power of attorney and other directives Smith signed in 2004.

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

Steven A. Ballaban v. Bloomington Jewish Community, Inc., a/k/a Congregation Beth Shalom, Paul Eisenberg, Judith Rose, Sarah Wasserman, Lynne Foster Shifriss, and Roberta "Didi" Kerler

In Kyle W. Dixon v. Ara J. Dixon , an 8-page opinion, Judge Kirsch writes:

Kyle W. Dixon (“Father”) appeals the trial court’s order granting the notice of intent to relocate filed by Ara J. Dixon (“Mother”). Father raises the following restated issue for our review: whether the trial court abused its discretion in granting Mother’s notice of intent to relocate because it did not take into account the effect of the move on the best interests of the children. We affirm.
In Daniel Brewington v. State of Indiana, a 44-page opinion, Sr. Judge Darden writes:
Daniel Brewington appeals his convictions for three counts of intimidation, two as Class A misdemeanors and one as a Class D felony, Ind. Code § 35-45-2-1 (2006); one count of attempted obstruction of justice, a Class D felony, Ind. Code §§ 35-44.1-2-2 (2012), 35-41-5-1 (1977); and one count of perjury, a Class D felony, Ind. Code § 35-44.1-2-1 (2012). We affirm in part, reverse in part, and remand with instructions.

Brewington raises five issues, which we expand and restate as:
I. Whether the court abused its discretion by impaneling an anonymous jury.
II. Whether the court erred by admitting a custody evaluation and a divorce decree into evidence.
III. Whether one of Brewington’s convictions for intimidation and his conviction for attempted obstruction of justice violate the Indiana Constitution’s double jeopardy clause.
IV. Whether the evidence is sufficient to sustain Brewington’s convictions.
V. Whether the court’s final jury instructions were erroneous. * * *

For the reasons stated above, Brewington’s convictions and sentences for Count I, intimidation of Dr. Connor, and Count III, intimidation of Heidi Humphrey, must be vacated. We reverse those convictions and remand with instructions to vacate those convictions. Vacatur does not alter Brewington’s aggregate sentence. The trial court’s judgment is in all other respects affirmed.

NFP civil opinions today (1):

Jeff Clade v. Hunt Construction Group, Inc. (NFP)

NFP criminal opinions today (4):

Marilyn Carter v. State of Indiana (NFP)

B.B., Jr. v. State of Indiana (NFP)

Steven Newville v. State of Indiana (NFP)

Garrick P. Twiford, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Criminal code re-write would restore ‘fairness and proportionality’"

That is the headline to this story dated Jan. 16, by Maureen Hayden, CNHI Statehouse Bureau, here in the Logansport Pharos-Tribune. The worth reading in full story begins:

INDIANAPOLIS — Indiana may join a growing number of states that are reducing penalties for low-level drug crimes while increasing the punishment for violent criminals and sexual predators.

Under legislation filed Monday that rewrites much of the state’s criminal code [SB 601, HB 1006], someone caught near a school with three grams of cocaine would no longer face a harsher penalty than a rapist, for example.

“It’s about restoring some fairness and proportionality to our system of criminal justice,” said Republican state Sen. Brent Steele, a key supporter of the bill and chair of the Senate courts and corrections committee.

The legislation calls for significantly reduced penalties for marijuana possession – though not decriminalization of pot as Steele has advocated for in the past.

Among the other changes: It increases the number of felony levels from the current four to six and spells out new rules for how prisoners could earn “credit time” for early release. It also gives judges more discretion over when to suspend prison sentences for some low-level crimes, but would add more violent crimes to the list of offenses with mandatory prison time.

The bill, more than 400 pages in length, is modeled on recommendations from a legislature-appointed commission that called for overhauling the state’s criminal laws to make punishment more proportionate to the crime. Other states, including neighboring Kentucky, have followed a similar path.

The House bill was heard in the House Committee on Courts and Criminal Code Jan. 17, reported out Do Pass Amended, and referred to Ways and Means.

Dan Carden of the NWI Times had this story yesterday - some quotes:

Five years of bipartisan review, debate and negotiation paid off Wednesday as a House committee unanimously approved the first major overhaul of Indiana's criminal code since 1977.

"It is a big, big deal," said state Rep. Linda Lawson, D-Hammond, a co-sponsor of House Bill 1006. "This is good for Hoosiers, it really is."

The 422-page proposal is a wholesale rethinking of felony crime and punishment with an eye toward improving the proportionality and certainty of prison time, reserving prison for the most serious offenders, and getting drug addicts and low-level offenders into treatment to reduce recidivism.

Under the plan, the current four levels of felonies would be expanded to six. That ensures similar crimes are treated the same way and that the most serious offenses get the toughest penalties, said state Rep. Greg Steuerwald, R-Avon, co-sponsor of the measure. * * *

The budget impact of the proposal has yet to be calculated by the nonpartisan Legislative Services Agency.

Lawson said she expects the state will have to give counties new money to administer corrections programs if the measure becomes law.

"It's going to be a little difficult at first as far as paying for it, but in the long run it's going to be better for all of us," Lawson said.

The proposal is supported by the state associations of prosecutors, defense attorneys, sheriffs and counties, all of whom worked with the state's Criminal Code Evaluation Commission since 2009 to shape the legislation.

It must still be approved by the House Ways and Means Committee before the measure can go to the full House for a vote to send it to the Senate.

If signed into law, the proposal wouldn't take effect until July 1, 2014, to give Hoosiers time to get used to the changes and lawmakers a chance to make additional reforms next year.

Here is a good quick overview of the introduced bill, prepared by Andrew Cullen of Indiana Public Defender Council.

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Indiana Law

Ind. Decisions - Pleaded or Plead: Which is More Prevalent in Indiana Appellate Opinions?

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

The defendant pled guilty or the defendant pleaded guilty? Lawyers and judges disagree, sometimes forcefully, about whether “pleaded” or “pled” is the more correct usage. Two lawyers faced off in this Daily Report post, characterized as part of “a bitter, friend-splitting debate raging among lawyers about whether to use ‘pleaded’ or ‘pled.’”

A Westlaw search of the text of Indiana appellate opinions over the past decade shows a preference for the use of “pled” (2461 cases) over “pleaded” (1973 cases).* This mirrors the Indiana Supreme Court preference for “pled” (149 cases) over “pleaded” (98 cases). Disciplinary cases, which are almost always per curiam, overwhelming used “pled” instead of “pleaded” in recounting the disappointingly large number of lawyers who admitted to criminal charges. Individual justices, however, seem to prefer pleaded.

Over the past decade Justice Rucker and Justice Boehm used “pleaded” religiously while Justice Sullivan steadfastly used “pled.” Justice Massa used “pled” in his only opinion on the issue. The remaining justices used both, with Chief Justice Dickson and Justice David using “pleaded” more than “pled,” and Chief Justice Shepard using “pled” more often. In at least one opinion, both were used.
*The searches were of “OP(pled)” and “OP(pleaded),” which ensures that headnotes, some of which use the opposite terminology, were not included in the results.

ILB: The ILB has touched upon this topic in several earlier posts:

The press appears to follow different rules. Here from the official 2011 AP Stylebook:
plead, pleaded, pleading - Do not use the colloquial past tense form, pled.

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Indiana Courts | Schumm - Commentary