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Thursday, May 15, 2014

Ind. Decisions - A potential dialogue on the Supreme Court's decision this week in Bond v. State? [Updated]

Earlier today the ILB noted at the end of this post on a Lake County case that an ILB attorney-reader sent a note this morning to express his belief that the Supreme Court decision issued May 13th in McLynnerd Bond, Jr. v. State was a landmark opinion, that the Court had really nailed it.

A short time later the ILB received an email from another reader, voicing a different perspective, which is posted below, that set me to thinking. The ILB would like to foster a constructive dialogue about the Bond opinion. For those who work in the criminal justice system (especially in Lake County), what do you think of the following passage that begins a paragraph on p. 6 of the Supreme Court's opinion?

But with respect to the detective’s statement that Bond might not receive a fair trial because of his race and the likely composition of a prospective jury, our sentiment goes beyond the trial court’s "great concern" and the Court of Appeals majority’s disapproval of it as being "inappropriate." This is not a police tactic that we simply "do not condone" because it is deceptive.
Is the detective's statement deceptive or, sadly, does it ring true? Are African-Americans well represented on juries in Lake County? If the detective's statement was essentially true, is reversal of this conviction the right remedy - or should something far more fundamental and sweeping be done by the Supreme Court to increase the diversity of venires?

And what about other counties where there are few African-Americans on juries? Here is the thoughtful email I received from a deputy prosecutor in another northern Indiana county:

Hi Marcia

I note where a reader felt that this was a landmark decision, and that the court had nailed it. I am seriously conflicted about this case, what it means or doesn’t mean.

Nuts and bolts - sure I get that police, lawyers, even judges should refrain from saying things that undermine faith in the judicial system. I get that the pressure created in this particular case was pretty harsh, maybe even undue.

Here is my big problem - the court doesn’t even address the elephant in the room, which in my mind is: What if the detective was accurate about the jury situation? Does the court merely bypass the whole issue by stating that the detective can’t talk about the elephant or use the presence of the elephant as leverage? Does that change the fact that there might actually be an elephant in the room?

I know that this is a potentially huge issue. Gigantic. Difficult. But here is the rub - I have caught myself thinking about the possibility of the same thing being true in my county. For years one local defense attorney used to object to the entire venire because he had a black client and there were only one or two black people in the entire venire. The venire was composed of white people that worked for the school system or the hospital, and a few farmers. How, exactly, does the young black man with dreads and accused of a drug crime, or murder, feel about his chances for a fair trial from those “peers?” Is he justified? Those objections never got anywhere because the case law did not support the position.

I am a deputy prosecutor, and I care deeply about the system getting the right result for the right reasons, which is why this is so troubling to me. The possibility that the detective’s characterization might be true is almost impossible to really test, or to solve. Does that mean we shouldn’t even discuss it?

These are pretty random, unrefined thoughts, but I feel compelled to at least share them with someone who has the capacity to foster consideration of the issue.

[Updated at 3:25 PM] Comments are starting to come in. Please identify yourself and tell me that you are an attorney (defense, prosecutor, etc.) but I won't use your name unless you say is is okay in your note.

Here is a note from an attorney/friend here in Indianapolis:

Marcia,

Please pass on to the writer of the comment [the one identified as "a deputy prosecutor in another northern Indiana county"] that this reader is genuinely uplifted by her concern for the quality of the criminal justice system. She really has a public servant’s heart in the best sense. Would that every public servant were as concerned with our system being the best it can be.

Richard

A comment from a mid-Indiana county:
I love your blog – read it every morning (and afternoon). I have a quick comment, if you are taking them, about the State v. Bond case. Please do not use my name.

I practice private criminal defense in a county with very little racial or ethnic diversity. Such a statement by police in my county would be absolutely true. In fact, I am sure I am not alone when I advise clients who belong to minorities that a plea offer may be in their best interests at least in part due to the lack of a diverse venire. I have had cases that would have been great cases but for the race or ethnicity of my client versus that of the (white) complaining witness. Am I undermining my client’s faith in the criminal justice system and infringing on his right to a fair trial? Or am I advocating effectively for him by telling him the truth? Of course this is different factually from Bond, but the similarities bear consideration.

[More] From an Indianapolis attorney:
I believe that the message of the Supreme Court in Bond addresses and continues the application of the principles stated, and challenges each of us who practices law, whether civil, criminal, plaintiff, prosecution or defense, to understand that we lawyers are the first line, and the last line, that makes the system work. Kudos to the defense lawyer who fought in the trenches for years. Kudos to the prosecuting attorney who wonders if there still remain systemic issues with the process of selecting a jury of one's peers. Indeed, this could be the subject of an Indiana CLE seminar for the benefit of us all, and those we serve.

Posted by Marcia Oddi on May 15, 2014 02:31 PM
Posted to Ind. Sup.Ct. Decisions