Wednesday, May 08, 2013
Ind. Courts - Transfer Grants in Criminal Cases, A Summer Break, and Brewington Speculation
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Transfer Grants in Criminal Cases
Someone recently asked me if the Indiana Supreme Court was granting transfer more frequently in petitions filed by the State in criminal cases. The three most recent grants in criminal cases have been petitions from the State: Delagrange (the infamous shoe camera case), Sanders (propriety of a traffic stop for tinted windows), and Smith (the principal who did a short investigation before reporting a rape allegation to DCS). But so far in 2013, transfer grants have been nearly equal: the State has had eight petitions granted while criminal defendants have had seven granted.*
A grant of transfer is more often than not bad news for the party who prevailed in the court of appeals. But sometimes the supreme court reaches the same result through different reasoning or even adopts the court of appeals opinion in full, as in a 2012 case involving jury instructions. For example, of the eight petitions from the State granted this year, the supreme court has issued opinions in two cases. In K.W. v. State the court reached the same result as the court of appeals, while in Peterink v. State it disagreed with the court of appeals on the misdemeanor sentencing issue decided the same day in Jennings. The other cases awaiting opinions on petitions from the State involve challenges to the appropriateness of a sentence(Merida and Lynch) and ineffective assistance of counsel regarding a jury instruction (McWhorter).
Summer Oral Argument Break?
Although the Indiana Supreme Court does not have an official term like the U.S. Supreme Court, its annual report counts cases on a July-June fiscal year, which usually means several opinions are issued in June each year. The court has also generally taken a break from oral arguments in July and August. A quick look at the court’s convenient, searchable calendar shows that since 2005 only five oral arguments have been held in July (two in 2008, one in 2009, and two in 2010) and only six in August (one in 2007, four in 2008, and one in 2010). No oral arguments have been scheduled in either month since 2010. The court’s calendar currently shows six cases scheduled for June of 2013 and none scheduled beyond that. The recent transfer grants (two from April 19 and three from March 28) have not yet been scheduled for argument.
Which brings me to the subject of the Brewington case discussed here. The case transmitted on transfer on March 26, and a decision is usually made in criminal cases within two to three weeks. The recent transfer lists include rulings on cases transmitted several days after Brewington, including the Smith case that was transmitted on April 8.
The case has almost certainly been discussed at conference, and an order denying transfer has not been issued. That suggests the court may be scheduling the case for oral argument to decide whether to grant transfer, as it has done in several criminal cases in recent months. The argument would not likely occur until September (or even later) if the court continues its historic scheduling practices. Alternatively, the justice could be divided and one or more could be working on a draft opinion or dissent from the denial of transfer, although this seems less likely.
* These statistics include juvenile delinquency cases.