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Saturday, January 26, 2013

Ind. Courts - Two stories today about problems for prosecutors

"Prosecutor says he may have to drop charge against mother accused of killing newborn" is the most recent story by Indianapolis Star reporter Carrie Ritchie on the Bei Bei Shuai case. See also this Jan. 22nd story, quoted in this Jan. 23 ILB entry. From today's long story:

Marion County Prosecutor Terry Curry admitted Friday that his office has a big problem with one of its most controversial cases.

Curry charged Bei Bei Shuai, 36, Indianapolis, with murder and attempted feticide in 2011 when her baby daughter, Angel, died a few days after being born. Prosecutors alleged that rat poison Shuai ate during a suicide attempt caused bleeding in Angel’s brain, which eventually killed her.

But now, they can’t prove it.

A week ago, a Marion County judge said she won’t allow a pathologist to tell a jury that the rat poison killed the baby. The process the pathologist used to make that conclusion “is not reliable,” the judge ruled, because she didn’t eliminate other potential causes of death and didn’t provide enough information about how she determined rat poison was the cause.

“With the existing combination of witnesses, without any proof of cause of death,” Curry said Friday, “we would not be able to go forward on the murder charge.”

Even if prosecutors drop the murder charge, they plan to continue pursuing the attempted feticide charge, which Curry said doesn’t require them to show that the rat poison killed Angel. * * *

Curry said he’ll continue to find ways to make the case work, which could draw out the length and the cost of the case. Curry’s office says it does not know how much the case will end up costing taxpayers. * * *

Shuai’s trial is set for April 22.

"Charges dismissed in Facebook photo saga" is the headline to this story in today's Lafayette Journal Courier, reported by Sophia Voravong. I admit I find it confusing. Here is a sample:
But now the seemingly strong evidence is gone — forcing the Tippecanoe County prosecutor’s office on Friday to drop charges of child exploitation, a Class C felony, and possession of child pornography, a Class D felony, against the mother, 50-year-old Lynda A. Rusk, Prosecutor Pat Harrington said.

“In the past few weeks, our office has received additional digital records from the multiple carriers involved in this case. Analysis of these records reflect the critical digital evidence, which was previously requested by the state, no longer exists,” the prosecutor’s office said in a written statement provided to the Journal & Courier.

“Without the before-mentioned evidence, the state is unable to prove the location of the electronic device that was the source of the image. Therefore, the state is unable to prove jurisdiction in Tippecanoe County.”

Harrington declined to comment further on the “multiple carriers,” or companies from which prosecutors subpoenaed evidence, or why the companies purged the information.

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Courts

Indd. Courts - A fresh look at: "Center Twp. Trustee is attempting to move the location of the Center Township of Marion County small claims court"

The ILB has been following this matter since Scott Olsen's 2011 IBJ story, posted Sept. 19th of that year. His long, still available report is headed "Small claims court could move from City-County Building" and begins:

The Center Township trustee is pushing to move the township's small claims court from the downtown Indianapolis City-County Building to the Julia M. Carson Government Center in what is being promoted as a cost-saving measure.

Trustee Eugene Akers’ plan, which could be approved at a Wednesday township board meeting, is not without controversy, however. The court’s judge, Michelle Smith Scott, is adamantly opposed to the move.

“If the trustee for Center [Township] is able to do this and is allowed to interfere with the court over the objection of the judge,” she said, “I don’t think it sets a good precedent.”

A second IBJ story from Sept. 22nd was titled "Township board OKs small claims court move." A quote:
The proposal calls for the court to take the 2,200-square-foot space vacated by 300 East, a restaurant and bar at the Carson Center that closed Sept. 1. The small claims court now occupies 1,600 square feet in the basement of the City-County Building.
This Dec. 14, 2011 ILB entry is headed "Supreme Court names special judge to hear Center Twp. small claims court's mandate action" and quotes from the Supreme Court's order.

The ILB put together this Nov. 12, 2012 entry after acquiring and uploading all the documents in the mandate action.

Today Tim Evans of the Indianapolis Star has a lengthy, front-page story on the dispute, which is currently awaiting action by the Supreme Court. The headline, which some may read as indicating the paper's preference for the dispute's resolution, is "Center Township small claims court facilities ill-equipped for staggering volume of cases: Center Township trustee has renovated space to house the court, but judge wants to keep operations at the City-County Building."

Some quotes from today's long story:

A special judge appointed by the Indiana Supreme Court to look into the dispute agreed with Scott in a decision issued in June. By then, however, Akers had moved ahead with more than $500,000 in renovations to create the courtroom and offices.

Special Judge Charles L. Berger found the City-County Building is the preferred location because of its accessibility, safety, convenience and access to other public offices. * * *

The dispute, however, reaches far beyond a territorial fight among two elected officials right to taxpayer pocketbooks.

Besides the $500,000 in township funds spent with no guarantee the new court space in the Carson Center ever will be used, it will take at least another $50,000 in public money to upgrade the court's facilities in the City-County Building if the special judge's ruling is upheld by the Indiana Supreme Court .

"Center Township accepted the risk," Berger wrote in his ruling. "The fact that a court facility is now available at the Carson Center cannot dictate the outcome of this action."

Akers appealed that ruling, and the legal fight over the court's need for adequate facilities -- and, ultimately, its location -- is now up to the state's highest court. * * *

The City-County Building has clear benefits to Indianapolis attorney J.F. Beatty, who handles a number of cases in the court.

"From my standpoint and for the people the court is supposed to serve, the City-County Building is the best," said Beatty, whose Downtown office is about a block away.

Beatty added that the court has been in the City-County Building for years and people are familiar with that location. He also said the present site is safer because of security checks at the entrance and a large law enforcement presence.

"Safety is a real concern of ours every day in every small claims court," Beatty said.

The ILB disagrees with this statement in today's story:
Judicial mandates -- basically an order demanding a political authority, such as a trustee, to provide funding "reasonably necessary for the operation of the court" -- are uncommon in Indiana. Since July 1, 2001, according to Supreme Court records, only two others have been filed in the state.
ILB: Many county commissioners throughout the State, and many legislators, will likely agree with me that judicial mandate actions are not uncommon. Here is a very long list of ILB entries on judicial mandates; the first entry in the list was posted in 2005.

Also in 2005 I published a Res Gestae article on judicial mandates, titled "Separation of Powers in the County Courthouse." Two of the cases discussed may be relevant here. In one, from 1887, the county commissioners in Vigo County often closed down the courthouse elevator in the afternoons while the judges on the third floor were still holding court. Finally, to quote from my article, the judge of the Vigo circuit court issued the following order:
It is hereby ordered that the elevator running from the basement to the court-room floor be run and operated in accordance with the following schedule. ...
The case made its way to the Supreme Court, which wrote:
[T]he court ... possesses all powers necessary for the free and untrammeled exercise of its functions. Considering, therefore, the facts concerning the Vigo county courthouse ..., there can be but little doubt that the order made by the court as to the running of the elevator was a proper exercise of the inherent powers of the court.
The article also discusses a 1986 Crawford County mandate case, involving:
... the reassignment by the Crawford commissioners of Room 7 in the courthouse, from the clerk’s office to the department of public welfare. The Supreme Court rejected the commissioner’s argument that the present mandate was not within the scope of TR 60.5 because it did not specifically seek “funds.” Citing Stout, the Court found the contention without merit: “Our case law illustrates that Ind. R.Tr.P. 60.5 applies to mandates in addition to those specifically for ‘funds.’” Again citing Stout, the Court stated: “A court of general jurisdiction cannot be controlled, directed, or impeded in its functions by any other department of government.”

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Courts

Ind. Courts - Former Vanderburgh County Superior Court Judge J. Douglas Knight dies unexpectedly

Judge Tim Crowley, Knox Superior Court 1, Vincennes, sends news of the passing of Judge J. Douglas Knight, a former judge of the Vanderburgh Superior Court.

Judge Knight passed away on Monday, January 21, 2013. His memorial service was Thursday in Evansville.

Here is a Jan. 22nd story by Mark Wilson in the Evansville Courier & Press that begins:

EVANSVILLE — Family and friends said the death of former Vanderburgh County Superior Court Judge J. Douglas Knight at an Evansville hospital Monday was unexpected.

Knight, 68, died from a sudden hemorrhagic stroke, said Emily Friend, his youngest daughter. He retired from the bench in December 2010 after more than two decades on the court. However, he remained active as a senior judge, helping hear cases as needed, said fellow Senior Judge Maurice O’Conner.

Here is the obituary from the C&P.

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Courts

Ind. Law - Per NRA: "Indiana General Assembly Off to a Good Start with Pro-Gun Bills Introduced"

From the NRA Institute for Legislative Action:

The 2013 session of the Indiana General Assembly is off to a great start with multiple pro-gun bills being filed. Some great strides have been made over recent years in Indiana and your NRA will continue working to move forward to protect the rights of the law-abiding gun owners in the Hoosier State.

House Bill 1473, sponsored by state Representative Jim Lucas (R-69), would allow a person who legally possesses a firearm to keep that firearm stored in a locked trunk of their vehicle, a glove box, or stored out of plain sight in the vehicle while on school property. This would allow parents to park on school property for a meeting with a teacher or principal to do so without the fear of breaking the law. HB 1473 has been referred to the House Committee on Public Policy.

State Representative Sean Eberhart (R-57) has filed pro-hunting legislation, House Bill 1563, which applies to fish and wildlife matters. The Hoosier State maintains a rich hunting heritage and HB 1563 would make a few enhancements to Indiana’s wildlife laws. HB 1563 has been referred to the House Committee on Natural Resources. [ILB: The enhancements include "Repeals certain prohibitions against the possession or use of a silencer while in the act of hunting."]

Sponsored by state Senators Jim Banks (R-17) and Jim Tomes (R-49), Senate Bill 97 prohibits a state agency, including a state-supported college or university, from regulating the possession or transportation of firearms, ammunition, or firearm accessories on land, in buildings and other structures that are owned or leased by the state. Please be advised that SB 97 would not affect prohibited places under federal law. SB 97 has been referred to the Senate Committee on Rules and Legislative Procedure.

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Law

Ind. Courts - "Justice Loretta Rush urges 16 Tecumseh Junior High girls to be true to themselves"

Nice story in the Lafayette Journal Courier, reported by Mikel Livingston. A quote:

The event, planned to take place monthly, gives a small group of handpicked seventh- and eighth-graders a chance to dine and interact with successful Lafayette women. It was organized by local pediatrician Anna Wildermuth and Ivy Tech faculty member Cindy Gerlach.

“I see a lot of teenagers and preteens and just thought especially girls, when I ask them what they want to do, they really had no idea,” Wildermuth said. “If they did have an idea, they didn’t know how to go about it.”

The 16 students were selected through an interview process. Future guests for the luncheons include State Rep. Sheila Klinker, Tippecanoe Chamber Music Society executive director Margot Marlatt and WLFI anchorwoman Gina Quattrocchi.

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Courts