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Friday, April 19, 2013

Ind. Decisions - New addition to ILB's "running list of cases designated as NFP that perhaps should not have been"

The ILB has recently begun pointing out opinions designated by a Court of Appeal panel as "Not for Publication" (NFP) that arguably may not meet the criteria of Appellate Rules 65(A):

Rule 65. Opinions And Memorandum Decisions

A. Criteria for Publication. All Supreme Court opinions shall be published. A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.
This ILB post on Feb. 17th points to two COA opinions, designated as NFP, ruling that "a Vanderburgh County judge correctly denied injunctions requested by a group of tavern owners and private clubs against Evansville's smoking ban, which took effect last April."

This ILB post on March 19th points to a COA opinion, designated as NFP, upholding the continuation on the books, without enforcement, of Hammond gun ordinances negated by state statute. [This 3/15/13 opinion was reclassified as for publication on 4/3/13.]

Yesterday, April 18th's, decision in Maximilian Spiegel v. State of Indiana (NFP), is a new addition to the list. The issue in this case involved claims of prosecutorial misconduct. Here is Judge Friedlander's concurring opinion:

I fully concur in the panel’s opinion, but write separately to express a few thoughts on the issue of prosecutorial misconduct in the present case. We correctly conclude that the prosecuting attorney in this case crossed the line of acceptable advocacy not once, but four times. She called Spiegel a liar on the witness stand, commented upon possible penal consequences of a verdict of “guilty”, highlighted the disparate roles of prosecuting and defense attorneys, and intimated to the jury that a vote of “not guilty” was tantamount to societal condemnation of unspecified other children to suffer similar abuse at the hands of other perpetrators, without recourse. We also conclude that these transgressions do not merit reversal because they were waived and because of the strength of the evidence of guilt.

In reaching these conclusions, we do not go so far as to explicitly “condemn” the prosecuting attorney’s actions, although we could, and perhaps should. Be that as it may, there is cause to doubt the efficacy of even an official condemnation of such behavior. Our appellate courts have on occasion issued condemnations of prosecutorial misconduct. See, e.g., Splunge v. State, 641 N.E.2d 628 (Ind. 1994) (the Supreme Court condemned the prosecutor’s attempt to remind the jury that the defendant did not testify, but nevertheless affirmed because of the overwhelming evidence of guilt) ; see also Bernard v. State , 540 N.E.2d 23, 25 (Ind. 1989) (prosecutor’s comments on the defendant’s failure to testify were described as “condemnable”). Yet, instances of condemnable prosecutorial behavior continue to come before us on appeal. It would seem that our admonishments are falling on deaf ears on an all-too-regular basis. At some point, I will be forced to conclude that our condemnations lack sufficient deterrent effect, and that only reversal will provide sufficient impetus for adhering to the well-settled boundaries of propriety in these matters.

Posted by Marcia Oddi on April 19, 2013 10:42 AM
Posted to Ind. App.Ct. Decisions