The Indiana Law Blog: February 18, 2013 Archives

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Monday, February 18, 2013

Ind. Decisions - Transfer list for week ending February 15, 2013

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the January 11, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, February 15, 2013. It is two pages (and 17 cases) long.

One transfer was granted last week:

N.L. v. State of Indiana, a Nov. 26, 2012 NFP COA opinion, where the panel concluded "there was sufficient evidence to support the juvenile court’s decision to require N.L. to register as a sex offender as a condition of his probation."

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 4 today (and 4 NFP)

For publication opinions today (4):

Alex Carrillo v. State of Indiana

Michael R. Sudberry v. State of Indiana

In Jim A. Edsall v. State of Indiana , a pro se appeal, Judge Crone concludes:

We find Green applicable here, where the trial court ordered Edsall to repay over $19,000 that the drug task force spent during the course of the undercover criminal investigation of Edsall, including for the purchase of over 10,000 pseudoe*phedrine pills and the wages and expenses of law enforcement from various agencies. Although Edsall argues that the restitution amount was excessive, we make no finding today on the amount of the restitution. Rather, we hold that under the facts of this case the State was not a victim as contemplated by the restitution statute, and the trial court’s order of restitution was not proper. Compare Ault v. State, 705 N.E.2d 1078, 1082-83 (Ind. Ct. App. 1999) (where State was entitled to restitution for Medicaid payments that it paid on behalf of infant victim shaken and injured by defendant because it stood in shoes of victim and assumed cost of victim’s care).

NFP civil opinions today (2):

Nancie Hale, as Next Friend of John Doe v. Randolph County Kids, Inc. d/b/a Camp Yale, Randolph County Department of Community Corrections, Camp Kidz-Kan-Du, et al. (NFP)

Jerome Scott Mattingly v. Juan William Smith and Julie Ann Smith and Sharon O'Connell and Daniel E. Richards, Vernuse Mings and Meredity Mings, Glen H. Macphee and Carol S. Macphee, et al. (NFP)

NFP criminal opinions today (2):

Dennis L. Lloyd, Jr. v. State of Indiana (NFP)

Robert D. Bowen v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Ind. App.Ct. Decisions

Courts - Tomorrow: "Indiana Farmer's Fight With Monsanto Reaches The Supreme Court"

Updating a number of earlier ILB entries, oral argument in the case in which "Vernon Hugh Bowman, an Indiana farmer, is challenging Monsanto, the world's largest seed company, over genetically modified crops," is tomorrow. A few quotes from Andrew Pollack's long, Feb. 15th NY Times story:

[T]he 75-year-old farmer from southwestern Indiana will face off Tuesday against the world’s largest seed company, Monsanto, in a Supreme Court case that could have a huge impact on the future of genetically modified crops, and also affect other fields from medical research to software.

At stake in Mr. Bowman’s case is whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products.

It is one of two cases before the Supreme Court related to the patenting of living organisms, a practice that has helped give rise to the biotechnology industry but which critics have long considered immoral. The other case, involving a breast cancer risk test from Myriad Genetics, will determine whether human genes can be patented. It is scheduled to be heard April 15.

Monsanto says that a victory for Mr. Bowman would allow farmers to essentially save seeds from one year’s crop to plant the next year, eviscerating patent protection. In Mr. Bowman’s part of Indiana, it says, a single acre of soybeans can produce enough seeds to plant 26 acres the next year.

Here is NPR's Morning Edition story this morning by Dan Charles. Some quotes, the whole story is quite interesting:

But here's where Bowman got into trouble: He also likes to plant a second crop of soybeans, later in the year, in fields where he just harvested wheat.

Those late-season soybeans are risky. The yield is smaller. Bowman decided that for this crop, he didn't want to pay top dollar for Monsanto's seed. "What I wanted was a cheap source of seed," he says.

Starting in 1999, he bought some ordinary soybeans from a small grain elevator where local farmers drop off their harvest. "They made sure they didn't sell it as seed. Their ticket said, 'Outbound grain," says Bowman.

He knew that these beans probably had Monsanto's Roundup Ready gene in them, because that's mainly what farmers plant these days. But Bowman didn't think Monsanto controlled these soybeans anymore, and in any case, he was getting a motley collection of different varieties, hardly a threat to Monsanto's seed business. "I couldn't imagine that they'd give a rat's behind," he snorts.

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Courts in general

Ind. Courts - "Status of law professor at issue in William Hurt trial"

A few quotes from Mark Wilson's long, Feb. 16th story in the Evansville Courier & Press:

The legal director for Northwestern University School of Law’s Center for Wrongful Convictions is among the witnesses slated to testify in the murder trial of 18-year-old William Hurt this week.

However, defense attorney Conor O’Daniel must first overcome a legal challenge from prosecuting attorney Mike Perry. * * *

[B]efore the trial starts Magistrate Kelli Fink will hear arguments on whether Steven Drizin, a clinical professor of law at Northwestern University School of Law, should be allowed to testify as an expert witness and whether to admit records of Hurt’s mental health history. Perry, who is the Vanderburgh County Prosecutor’s Office’s chief trial deputy, is objecting to both.

According to the Center for Wrongful Convictions’ website, Drizin is an authority on police interrogations, coerced confessions and juvenile justice issues.

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Indiana Courts

Ind. Decisions - Petition to transfer filed in Brewington, along with amicus brief with many signatories

Updating this ILB entry from Jan. 31st, and several earlier ILB entries posted under the heading "Blogger Jailed; Allegedly Threatened Dearborn Judge", EagleCountry 99.3FM, which has been closely following this story from the beginning, posts today:

(Rising Sun, Ind.) – A man convicted of intimidating a judge in Dearborn County is trying to take his case to the Indiana Supreme Court.

Dan Brewington is serving a five-year prison sentence following his conviction on Intimidation of a Judge, two counts of Intimidation, Obstruction of Justice, and Perjury in a 2011 jury trial. Prosecutors persuaded jurors that the Internet blogger threatened Dearborn Circuit Court Judge James Humphrey and others in his online writings.

Last month, the Indiana Court of Appeals overturned part of Brewington’s conviction. However, his convictions for Intimidation of a Judge, Obstruction of Justice, and Perjury were upheld along with the five-year prison sentence.

On Thursday, Brewington’s attorney filed a petition to get the case in front of the Indiana Supreme Court.

In the briefing, the jailed blogger’s attorney, Michael K. Sutherland, alleges that his first amendment rights were violated.

“For these reasons, Brewington respectfully requests the Court grant transfer, vacate the decision of the Court of Appeals, reverse his convictions for intimidation, attempted obstruction of justice and perjury, and enter verdicts of acquittal. Alternatively, Brewington asks for a new trial on the charges of intimidation and attempted obstruction of justice at which his federal and state constitutional rights will be given full protection,” Sutherland wrote.

Sutherland also claims that Brewington’s Perjury conviction should be thrown out because it related to a Dearborn County Grand Jury proceeding in which Prosecutor Aaron Negangard asked Brewington a question. Brewington’s answer was interrupted by the prosecutor.

“The State should not be able to prosecute a witness for perjury based on an incomplete statement when the State is responsible for it being incomplete,” Sutherland said.

In addition, as posted earlier, UCLA Law Prof Eugene Volokh of The Volokh Conspiracy has filed an amicus brief in the case. In this Feb. 15th post he writes:

Last month I blogged about State v. Brewington, an Indiana Court of Appeals decisions that I thought was inconsistent with the First Amendment. I’m pleased to say that today (with the help of local counsel Jim Bopp and Justin McAdam) I filed a pro bono amicus brief urging the Indiana Supreme Court to consider the case.

The brief was filed on behalf of Eagle Forum, the Hoosier State Press Association Foundation, the Indianapolis Star, the Indiana Association Of Scholars, the Indiana Coalition for Open Government, the James Madison Center for Free Speech, Nuvo (Indy’s Alternative Voice), and Professors James W. Brown, Anthony Fargo, Sheila S. Kennedy — all Indiana professors of journalism or public policy — as well as myself.

Many thanks to all the others for agreeing to sign on, to Jim and Justin for their pro bono help, and to Mayer Brown LLP, the firm with which I’m a part-part-part-part-time academic affiliate, for paying the various filing and printing costs.

That's right, Jim Bopp AND Sheila Kennedy! Volokh then proceeds to writes: "In any event, I thought I’d blog the amicus brief, in parts, since it discusses some questions that I think are of broader interest."

Here are the lengthy posts: Part 1; Part 2; and Part 3, titled, respectively:

Harshly Criticizing Judges (or Others) for Their Past Conduct = Crime?
State v. Brewington and the Blackmail Analogy
State v. Brewington and Figurative Speech

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Ind. App.Ct. Decisions

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, February 17, 2013:

From Saturday, February 16, 2013:

Nothing.

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/18/13):

No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of (2/25/13):

No arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 2/18/13):

Monday, February 18th

4:00 PM - Danielle Helms v. Max H. Rudicel, M.D., et al (18A04-1202-CT-70) Danielle Helms sued her doctor, a nurse practitioner, an emergency physicians group, a clinic, and a hospital for malpractice related to treatment she received during her pregnancy. A federal court found the doctor and clinic were federal employees and the federal tort claims limitation period had run. The trial court determined that decision was res judicata as to Helms’s negligence claims related to the clinic or the doctor’s work there. It also found the hospital was not vicariously liable for acts by the clinic or its employees, or for acts the doctor performed at the clinic. It found the hospital might be vicariously liable for acts of the doctor and the nurse practitioner at the hospital, and it dismissed the clinic with prejudice. Helms appeals, arguing the federal decision is not res judicata because that court did not address the issues before us, and the medical providers at the clinic were apparent agents of the hospital. On cross appeal, the hospital argues it could not have vicarious liability because it told Helms its healthcare providers are independent contractors. The Scheduled Panel Members are: Chief Judge Robb, Judges May and Pyle. [Where: Supreme Court Courtroom (WEBCAST)]

Tuesday, February 19th

3:00 PM - J.S. v. State of Indiana ( 20A04-1207-JV-373) J.S. appeals his adjudication as a juvenile delinquent for criminal gang activity. The issues on appeal are: (1) Whether there was sufficient evidence to support the juvenile court’s true finding that J.S. committed criminal gang activity; and (2) Whether the juvenile court abused its discretion by admitting testimony on gang colors and symbols and surveillance video footage into evidence. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Riley. [Where: Wabash College, Crawfordsville, Indiana]

Wednesday, February 20th

11:00 AM - John and Janice Gresser v. Dow Chemical and Reliable Exterminators, Inc. ( 79A02-1111-CT-1014) In this appeal, John and Janice Gresser, individually and as parents and natural guardians of Elizabeth and Rebekah Gresser, allege that they were injured by a pesticide manufactured by Dow Agrosciences, LLC and applied by Reliable Exterminators. Both the Gressers and Reliable Exterminators have requested that an oral argument be scheduled. Among the questions presented in this appeal are: (1) whether the Gresser’s state law claims are preempted by the Federal Insecticide, Fungicide & Rodenticide Act; (2) whether the pesticide is defective under the Indiana Product Liability Act; (3) whether Reliable Exterminators was negligent in its application of the pesticide; (4) whether Gresser’s expert evidence is sufficient to prove causation; and (5) whether Gresser is entitled to punitive damages. The Scheduled Panel Members are: Judges Friedlander, Brown and Pyle [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 2/25/13):

Monday, February 25th

10:00 AM - Thomas Overton vs. State of Indiana ( 35A02-1206-CR-530) The State charged Overton with Class A felony child molesting, but after a bench trial, the trial court found Overton guilty of Class C felony child molesting. Overton filed a motion to correct error, arguing that the statute of limitations for a Class C felony charge had run by the time the State filed the charge here, but the trial court denied the motion to correct error. On appeal, Overton argues that the Class C felony conviction was improper because the statute of limitations had run. The State argues that the statute of limitations was tolled by Overton’s concealment of his crime through threats to the victim. The Scheduled Panel Members are: Judges Vaidik, Barnes and Crone. [Where: Indiana University-South Bend]

Tuesday, February 26th

10:30 AM - State Farm Fire Casualty vs. Joseph Martin Radcliff, et al (29A04-1110-CT-571) On April 14, 2006, central Indiana suffered a hailstorm that caused millions of dollars in property damage and generated thousands of insurance claims. Following the storm, Joseph Radcliff created Coastal Property Management LLC (CPM) to assist homeowners in identifying storm damage, repairing that damage, and working with insurance companies to pay for repairs. Many State Farm & Casualty Co. policyholders’ claims were denied, and some of them complained to the Indiana Department of Insurance. Radcliff was retained by a number of State Farm policyholders. Two State Farm employees began investigating Radcliff for insurance fraud and forwarded their files to the authorities. The Marion County Prosecutor’s Office filed charges against Radcliff, but those charges were later dismissed. State Farm sued Radcliff and CPM for racketeering and insurance fraud in Hamilton Superior Court. State Farm alleged that Radcliff, through CPM, had a fraudulent scheme of intentionally damaging homes to simulate hail and wind damage and submitting false insurance claims. Radcliff and CPM counterclaimed alleging that State Farm defamed Radcliff by falsely accusing him of criminal conduct In June 2011, after a six-week jury trial at which forty witnesses testified, the jury found in favor of Radcliff and CPM on their defamation counterclaim and awarded them $14.5 million. After the verdict, State Farm filed a motion to correct errors in which it moved for judgment on the evidence, argued that it was entitled to a new trial under the “Thirteenth Juror Rule,” and argued that the damage award was excessive. The trial court denied State Farm’s motion. State Farm now appeals the defamation judgment arguing that its communications were protected by statutory immunity and a common-law qualified privilege for crime reporting, Radcliff failed to prove by clear and convincing evidence that State Farm acted with actual malice, and the damages are excessive. The Scheduled Panel Members are: Judges Vaidik, Barnes and Crone. [Where: Supreme Court 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.

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Upcoming Oral Arguments

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