Monday, January 21, 2013
Ind. Courts - More on "Blogger Jailed; Allegedly Threatened Dearborn Judge"
Today EagleCounty 99.3 has a report on the opinion, in a story headed "Jailed Blogger Wins Part of Appeal, Still Serving 5 Years." Some quotes:
(Lawrenceburg, Ind.) - An Internet blogger convicted of intimidating a Dearborn County judge has seen part of his conviction overturned, but it won’t affect his time behind bars.
Dan Brewington took to the Internet to voice his displeasure with how Dearborn Circuit Court Judge James D. Humphrey handled his 2008 divorce and child custody case. He also partly blamed court appointed custody evaluator Dr. Edward Connor in the events chronicled at his Blogger site and www.DanHelpsKids.com.
Brewington was eventually charged and arrested for some of the jabs he wrote. During a 2011 jury trial presided over by Judge Brian Hill from Rush County, the Cincinnati Ohio resident was convicted of Intimidation of a Judge, Attempt to Commit Obstruction of Justice, Perjury, and two lesser counts of Intimidation. Dearborn-Ohio County Prosecutor Aaron Negangard had convinced jurors that Brewington’s criticism went beyond political speech and crossed the line to “fighting words.”
Following the conviction, Brewington appealed his conviction to the Indiana Court of Appeals, arguing five points: the court allegedly abused its discretion by impaneling an anonymous jury, that Hill erred by admitting a custody evaluation and a divorce decree into evidence, the intimidation and obstruction of justice convictions were double jeopardy, whether the evidence was sufficient for convictions, and that the court’s final jury instructions were erroneous.
Oral arguments were held last November. On Thursday, January 17, the Court of Appeals issued a ruling vacating Brewington’s convictions for the two lesser intimidation charges. Those related to Judge Humphrey’s wife, Heidi, and Dr. Connor. The Connor intimidation conviction violated the double jeopardy rule, Judge Carr L. Darden wrote in the decision. * * *
With the help of his family, Brewington has continued to blog from prison. He has entries on his blog site as recent as January 6.
Ind. Law - More on "Criminal code re-write would restore ‘fairness and proportionality’"
Updating this ILB entry from January 17th, here are three items on the bill, all published January 20th:
- An editorial in the Evansville Courier & Press that begins:
Two years after state prosecutors shot down a promising legislative proposal to reduce the number of low-level criminals taking up room in state prisons, a new proposal is on the table, one that this time has the support of the state prosecutors organization.
Given that lawmakers are unlikely to pass such a bill without the support of the prosecutors, who two years ago accused legislators who supported sentencing reform as being soft on crime, this may be the best shot that reformers are going to get. It is at least worth pursuing, and this past week it was passed 13-0 by the Indiana House Courts and Criminal Committee.
- This story by CNHI's Maureen Hayden is headed " Criminal code reform could shift more costs to counties: Reform bill’s author vows to find money for local corrections if they’re left with more inmates." It begins:
INDIANAPOLIS — One the roadblocks to major legislation that rewrites the Indiana criminal code to make punishment better fit the crime is the lack of dollars to implement it on the local level.A second story Sunday by reporter Hayden, this one published in the Mt. Vernon Register-News, is headed "Another Daniels may get state’s criminal code on track." It begins:
If passed by the General Assembly, the legislation would likely reserve the state prisons for the worst offenders, while sending more low-level offenders and drug abusers into county jails, community-based corrections and probation rolls.
Legislators who back the bill say the goal is to get those drug addicts and low-level offenders into programs that offer treatment and intensive supervision that reduce the odds they’ll commit another crime.
But they concede the legislation has yet to include a funding mechanism for much of the extra costs that local communities would have to absorb.
“This doesn’t work unless there’s money to pay for it,” said Rep. Matt Pierce, a Democrat from Bloomington who worked with Republicans to help craft the legislation that rewrites the criminal code.
The Indiana Sheriff’s Association supports the legislation but with a caveat: It needs to come with funding for cash-strapped counties that can’t pick up the extra costs of housing more inmates and providing the treatment and services aimed at reducing recidivism.
“What we’re worried about is getting caught in an unfunded mandate,” said Stephen Luce, executive director of the association. “Most counties can’t absorb the extra costs.”
The financial impact of the legislation on local and state government has yet to be fully calculated. Lawmakers are awaiting an updated fiscal statement from the non-partisan Legislative Services Agency.
One of the bill’s key authors, Republican state Rep. Greg Steuerwald of Avon, has vowed to get local communities the resources they need, if the bill passes.
Two years ago, Gov. Mitch Daniels set out to reform prison sentencing in Indiana, convinced that the state’s spiraling prison costs were eventually going to squeeze out other budget priorities, including education.
For a long list of reasons — including significant resistance from prosecutors around the state — he couldn’t get it done.
But now, his sister might.
Deborah Daniels is a former prosecutor who served as a U.S. assistant attorney general in President George W. Bush administration’s before returning to Indiana to practice law.
In early 2011, she played a supportive role in crafting the legislative proposal that her brother championed as a solution to the state’s rising prison costs.
That proposal was built on a set of reforms governing sentencing and parole. The details are complex but goal straightforward:
Make punishment more proportional to the crime, reserve prison for the most serious offenders, and get the drug addicts and low-level offenders out from behind prison bars and into treatment and supervision programs to reduce recidivism.
It was such an ambitious proposal that it’s not surprising that it didn’t gain the traction needed to pass through the Indiana General Assembly in 2011. Many thought sentencing reform had just died.
But Deborah Daniels helped revive it.
In the summer of 2011, the legislative-appointed Criminal Code Evaluation Commission asked her to head up a “work group” of attorneys who took an intensive look at Indiana’s criminal laws.
That work group included Andrew Cullen of the Indiana Public Defender Council and Suzanne O’Malley of the Indiana Prosecuting Attorneys Council — representing two strong and often opposing points of view — as well as a former Marion County drug prosecutor and a small army of law school interns.
Ind. Courts - Still more on "End-of-life case splits family"
As readers of The Star follow the sad story of Paul G. Smith's end-of-life medical care, many must wonder what they can do to ensure that things go smoothly for them and their family members.
Despite Smith's careful planning with a living will and durable power of attorney, disagreement among his children has resulted in legal proceedings to sort out his wishes and determine how health-care decisions will be made in what appear to be his final days.
Ind. Decisions - More on: Right to work law decisions in ND Ind. and 7th Circuit
MADISON, Wis. — A federal appeals court on Friday upheld Wisconsin Gov. Scott Walker’s contentious law stripping most public workers of nearly all of their collective bargaining rights in a decision hailed by Republicans but not undoing a state court ruling keeping much of the law from being in effect. * * *Additionally, the ILB has received this comment from a union attorney re the decision:
The decision, however, does not resolve a flurry of other lawsuits that have been filed over the law.
The most positive ruling for unions came in September when a state circuit court judge said the law was unconstitutional as applied to school and local government workers. That ruling is under appeal to the state appeals court.
While Friday’s 2-1 ruling by a panel of the 7th Circuit could influence the state appeals court and others hearing the cases, it’s not binding, said Paul Secunda, a Marquette University law professor. It certainly doesn’t signal the end of the legal fights, he said, and it could be appealed to the full federal appeals court and the U.S. Supreme Court.
“The public unions will fight until every one of their arguments are considered in full,” Secunda predicted.
Glad you reported on this decision yesterday, which has implications for the anti-union agenda of the Indiana Republican Party in the General Assembly. I'm especially looking forward to reading Judge Hamilton's dissent, which appears to be very solidly reasoned and grounded in First Amendment law. Since it's nearly certain en banc review will be sought by the union parties, it may be worth pointing out that one of the judges in the majority, Judge Bauer, is senior status and would not have a vote if the case is heard en banc. Thus, among the 10 active judges the split was 1-1. This is a case to watch as it continues to work its way through the appellate process.
Ind. Law - More on "Indiana legislator's bill could upset coal-gas plant plan at Rockport"
Updating this ILB entry from Jan. 15th, Eric Bradner of the Evansville Courier & Press had this long story this weekend, headed "Official with Rockport coal-to-gas plant says contract changes would kill the deal: Lawmakers questioning wisdom of 30-year deal to buy plant's gas at fixed price." Some quotes:
INDIANAPOLIS — State lawmakers’ attempts to rework the deal Indiana struck with developers of the proposed Rockport coal-to-gas plant would kill the nearly $3 billion project, one of its top officials said Friday.
As a shale gas boom drives down natural gas prices, two Republican lawmakers say they question the wisdom of the Indiana Finance Authority’s 30-year contract to buy and then resell the plant’s synthetic gas at a fixed rate.
Both have filed bills that would drastically alter its terms. The bills would trigger the ratepayer protection mechanisms included in the contract every three years, rather than waiting until the end of the deal.
That would stop the plant in its tracks, said Mark Lubbers, a former Gov. Mitch Daniels aide who is helming the Rockport effort for Leucadia National Corp.
“Any ‘true-up’ of savings before the end of the contract term makes the project unfinanceable,” he said.
The House and Senate utility committees could consider the two measures at a rare joint meeting, the chairmen of those committees told the Courier & Press on Friday. * * *
Lubbers meanwhile doubled down on what he said is a rock-solid deal for Hoosier gas customers over the long term, saying Indiana needs a second plant — this one in Lake County — that would convert petroleum coke, rather than coal.
“Two plants would provide better consumer protection and keep even more Hoosier energy spending in Indiana,” Lubbers said. * * *
That deal, signed by Gov. Mitch Daniels, set a rate of between $6 and $7 per MMBtu for the life of the contract. It would have utilities tie 17 percent of ratepayers’ bills to that Rockport price, rather than their open market rate.
It appeared to be a steal when natural gas prices topped $13 per unit as recently as 2008. Since then, though, a nationwide shale gas boom has sent prices plummeting to near $3 per unit now.
And now that Daniels is gone, some lawmakers are looking for ways out of the deal.
“The market has changed, conditions have changed, and so we need to take a fresh look at this situation and there needs to be some changes that will protect the ratepayer,” said Rep. Suzanne Crouch, R-Evansville.
Ind. Courts - Appeals Court Judge Elaine Brown featured
With the naming of Judge Pyle, Judge Elaine Brown is no longer the newest member of the Indiana Court of Appeals. Tyler D. Helmond, Voyles Zahn & Paul, authored this interview, posted by the Indianapolis Bar Association. A sample:
Q: Speaking of art, what are your feelings on including (relevant) diagrams and pictures in appellate briefs?
A: I think that any demonstrative figure that helps to make a point clearer or more vivid should be used. I’ve seen Justice Breyer use a diagram in one of his concurring opinions, Judge Posner uses them in his opinions, and they have been used to illustrate points in a few of our appellate opinions. As long as they are accurate depictions, I find them helpful.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (1/21/13):
Tuesday, January 22nd
- 11:00 AM - Girl Scouts of So. Illinois, et al. v. Vincennes Ind. Girls (42S00-1210-PL-597) - In 1965, the National Girl Scouts underwent reorganization, and as a result, the appellee, Vincennes Indiana Girls (“VIG”) was required to convey some ten acres of land known as Camp Wildwood to an Illinois scout council, the appellant, Girl Scouts of Southern Illinois (“GSSI”). The deed specified that ownership of the camp would revert to VIG if that camp was not used as a scouting facility for a period of 49 years. The deed also specified that if VIG’s corporate existence was terminated, the reversion right would automatically terminate; VIG was administratively dissolved for a time because an annual fee had not been paid to the Secretary of State. By 2009, GSSI had stopped using the land as a scout camp and had notified VIG that it intended to sell the camp. VIG filed a quiet title action, asserting that title to Camp Wildwood had reverted to VIG. IC 32-30-3-14 provides that “a possibility of reverter…concerning real property is invalid after thirty (30) years from the date [it] is created….” The Knox Circuit Court granted summary judgment for VIG, deciding that IC 32-30-3-14 was unconstitutional as applied, that VIG did not lose its right to the camp when it was administratively dissolved, and that VIG owns the fee simple title to Camp Wildwood. This is a direct appeal.
Thursday, January 31st
- 9:00 AM - John W. Schoettmer, et al. v. Jolene Wright, et al. (49S04-1210-CT-607) - Following an automobile collision between Schoettmer and an employee of South Central Community Action Program, Inc., Schoettmer and the defendants’ insurer engaged in settlement negotiations that ultimately proved unsuccessful. Schoettmer did not separately provide notice of his claim to the defendants. After Schoettmer filed suit, the defendants moved for summary judgment based on Schoettmer’s noncompliance with the notice provisions of the Tort Claims Act. The trial court granted summary judgment to the defendants, and a divided panel of the Court of Appeals affirmed. Schoettmer v. Wright, 971 N.E.2d 118 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a July 13, 2012, 2-1 COA opinion, where the majority wrote: "It is undisputed that, as a designated community action agency, South Central is a political subdivision pursuant to the ITCA. See IC 34-13-3-22. The ITCA bars tort claims against a political subdivision unless notice of the claim is filed with the governing body of that political subdivision within 180 days after the loss occurs.".
- 9:45 AM - State of Indiana v. Russell Oney (49S05-1212-CR-668) - In 2002, Oney pleaded guilty to being an habitual traffic violator (“HTV”). Later, one of the three underlying convictions was set aside. In post-conviction proceedings relating to the 2002 HTV guilty plea, the Marion Superior Court granted Oney’s request to withdraw the guilty plea and set aside the conviction. The Court of Appeals reversed in State v. Oney, 974N.E.2d 1054 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a Sept. 24, 2012 COA opinion where the State presented a single issue for review: whether the trial court erred when it vacated Oney’s 2002 guilty plea to the HTV conviction on the ground that one of the predicate offenses to the HTV conviction had been reversed in post-conviction proceedings with the agreement of the State.
- 10:30 AM - Darrell Lawrence v. State of Indiana (49S02-1211-CR-620) - Lawrence was charged with possession of cocaine and resisting law enforcement. The Marion Superior Court ruled that the cocaine taken from Lawrence was inadmissible because the police search had been improper, and the trial court dismissed the drug charge. The trial court denied Lawrence’s motion to exclude, as “fruit of the poisonous tree,” evidence of Lawrence’s actions during the search that led to the charge of resisting law enforcement. Lawrence was convicted of resisting, and both sides appealed. The Court of Appeals reversed the conviction in a not-for-publication opinion, concluding that the evidence of resisting should not have been admitted. Lawrence v. State, No. 49A02-1110-CR-938, slip op. (Ind. Ct. App. Aug. 7, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is an Aug. 7, 2012 NFP COA opinion, concluding that "the evidence presented by the State to support his conviction for resisting law enforcement was improperly admitted as fruit of the poisonous tree."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 1/21/13):
- No arguments currently scheduled.
Wednesday, January 30th
- 1:30 PM - State of Indiana vs. I. T. (20A03-1202-JV-76) In April 2006, I.T. was adjudicated a delinquent child for committing an act that would constitute class B felony child molesting if committed by an adult. As part of its dispositional order, the juvenile court ordered I.T. to participate in an outpatient juvenile sex-offender treatment program and to undergo polygraph examinations to ensure his compliance with the rules of probation and the treatment program. During one of these polygraph examinations, I.T. admitted to sexually abusing two additional children. Based on these disclosures, police conducted an investigation and obtained a statement from one of the alleged victims implicating I.T. Police also conducted an interview of I.T., during which I.T. again confessed. Based on this information, the State filed an additional delinquency petition against I.T. alleging that he had committed acts that would be class B and class C felony child molesting if committed by an adult. I.T. successfully moved to dismiss the petition on the basis that his statements during the polygraph examination and all evidence derived therefrom were inadmissible. The State now appeals. The Scheduled Panel Members are: Judges Friedlander, Brown and Pyle. [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.