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Monday, May 05, 2014

Ind. Courts - "Murder case could sit year in legal limbo"

Rebecca Green of the Fort Wayne Journal Gazette has a third story Sunday (see May 2nd post here) in the case relating to the murder of Erin Justin, whose body was found in Noble County, but whose body may have been moved from Allen County. Some quotes from Sunday's lengthy story:

But two Fort Wayne brothers face charges in her death in the county where her body was found nearly three years ago. One is charged with murder.

Where they will stand trial – if the cases against them even continue – is as unknown as everything else. The murder case alone appears to have spawned an unprecedented fight over which county gets to – or has to – try the case.

It could be on hold for a year if the state Court of Appeals weighs in on an order to try the case in Allen County, one legal expert predicts – and if it’s tried in Allen, there’s no guarantee that the brother charged with murder in Noble County will face the same charge in Allen County. * * *

State law says this: Criminal acts may be tried in the county where the crime was committed, except if it involves a death. Then it can be tried where the cause of death was inflicted, the death actually happened or where the victim’s body was found. If no one can figure out where the crime occurred, then the case can be tried in any county where anything was done to further a crime, say by hiding a body in a lake.

The Indiana Constitution says this: In all criminal prosecutions, the defendant shall have a right to a trial by jury in the county where the offense is alleged to have occurred.

“May” in the law. “Shall” in the constitution.

About a month after the charges were filed, Noble County Chief Public Defender James Abbs filed a motion to dismiss the case against his client, Andres Gonzalez, arguing that state law conflicted with the constitution.

In lieu of a dismissal, Abbs argued for a transfer of the case to Allen County, where both brothers said the crime occurred.

At a hearing Tuesday, Noble County Prosecutor Steve Clouse argued through his deputy, J. Everett Newman, that Noble County had an obligation to investigate the matter since her body was found there. And even if all the information about what happened to her is largely inconclusive, the body was last handled in Noble County, making it all the more evident that the case should stay put, the prosecutors said.

But Noble Superior Court Judge Robert Kirsch ruled in favor of the defense, ordering the case transferred to Allen County.

“Where was the scene of death,” Kirsch asked in his ruling. “In light of this purported conflict as to the place of death … the Court prefers to base its decision on the Defendant’s assertion of his constitutional right on the Defendant’s own admissions.

“Is the disposal of the victim’s body in Noble County by itself constitutionally and statutorily sufficient to establish proper venue in Noble County notwithstanding the Defendant’s pre-trial assertion of his constitutional right to be tried in Allen County where the offenses were committed?” Kirsch asked.

Clouse asked Kirsch to hold off on enforcing his order to give him time to appeal, and Kirsch agreed – putting the case in a kind of legal limbo until an appeal is filed, heard and ruled on.

What’s next?

Clouse has until Friday to file his request for an interlocutory appeal, which would send the case to the Indiana Court of Appeals while it remains pending.

Whatever happens next may not happen for months, or even a year, according to Joel Schumm, a clinical professor of law at the Robert H. McKinney School of Law at Indiana University-Indianapolis.

“There’s quite a bit of this the appeals court is going to need to sort through,” Schumm said.

Those issues include whether a judge can decide what facts he or she wants to rely on – or what to do with conflicting facts in a probable cause affidavit, he said

Schumm read Kirsch’s order as, at least, implying that the state law was unconstitutional. And appellate courts tend not to like to declare laws unconstitutional, he said.

“I don’t know that those questions have been decided in case law,” he said.

In his ruling, Kirsch effectively dismissed the case by saying it couldn’t be filed in Noble County, Schumm said.

Should the case come to Allen County, there’s no guarantee it would be charged as a murder, or even charged at all, Schumm said.

“The elected prosecutor has full authority to do whatever she wants with it when she gets it,” he said.

For now, Andres Gonzalez remains behind bars, held without bail on the murder charge.

If the defense were to request to have a bail amount set for him, the state would have to present evidence that Justin’s death was actually a murder, Schumm said.

“There’s a pretty good question about whether this is murder or something else,” he said.

Last year, the court of appeals heard about 40 percent of the cases sent to it. Schumm believes it is likely the court will take this one up when it gets there.

“They’re not going to want this case tried in the wrong county,” he said. “They’re going to want this to be decided upfront.

“This raises issues that haven’t been decided before,” he said.

Posted by Marcia Oddi on May 5, 2014 09:59 AM
Posted to Ind. Trial Ct. Decisions