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Friday, March 17, 2017

Ind. Decisions - Supreme Court issues 1 today, reversing trial ruling

In Marvin Beville v. State of Indiana, an 11-page, 5-0 opinion, Chief Justice Rush writes:

The State told Marvin Beville it had a video recording of a controlled drug buy between him and a confidential informant. But while the State offered Beville’s public defender the opportunity to review the recording in the prosecutor’s office, it would not allow Beville himself to see the video. Beville accordingly requested a copy of the recording, to no avail. His counsel then filed a motion to compel and argued that Beville’s personal review of the video was fundamental to preparing a defense. The State responded that the informer’s privilege entitled it to withhold disclosing the recording. The trial court agreed with the State, and Beville took this interlocutory appeal.

We acknowledge that when the informer’s privilege is properly invoked, the defendant bears the burden to demonstrate an exception to the privilege—otherwise, disclosure of the requested discovery is not warranted. But it is incumbent on the State to establish that the informer’s privilege applies in the first instance. We conclude the State failed to make that threshold showing because it is unclear whether the video would actually reveal the informant’s identity. And even if the State had made the threshold showing, we find that Beville carried his burden of proving an exception to the privilege because his review of the video was relevant and helpful to his defense. We thus reverse the trial court. * * *

Because the State did not carry its threshold burden in establishing that the informer’s privilege applied to Beville’s discovery request, the State was not entitled to withhold disclosing the video recording. Accordingly, we reverse the trial court’s denial of Beville’s motion to compel.

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2017 - Odds Against Finalists from Previous Vacancies

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

As mentioned in this post, Judges Hostetler and Kincaid were finalists for the 2016 vacancy that was filled by Justice Slaughter. Both judges have applied again. If earlier selection processes are predictive of this one, the odds are not in their favor as finalists for this vacancy.

Thus, seven of the eight non-selected finalists from the past four vacancies have applied again for the next available vacancy. Just one of five (a mere 20%) were finalists on their subsequent application. Whether Judge Hostetler and Judge Kincaid outperform those odds will be known in a little over a month.

One would expect finalists from a previous vacancy to do well as a subsequent applicant. They will have familiarity with the process and have not only met some (or all) of the members of the Judicial Nominating Commission but impressed them enough to make the final cut. This would seem especially true in 2012 when the JNC membership was the same for both vacancies (except for the change of Chief Justice).

This year, five of the seven JNC members will have previously interviewed Judges Hostetler and Kincaid; the new members are Molly Kitchell (who replaced David Tinkey) and James Young (who replaced Lee Christie).

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (1):

In Michael Miller v. State of Indiana, a 29-page opinion, Judge Barnes writes:

Michael Miller appeals his conviction for attempted murder. We reverse and remand.

The issues we address today are: I. whether Miller was denied his right to a speedy trial under Indiana Criminal Rule 4(B); II. whether the trial court properly rejected his insanity defense; and III. whether the trial court applied an incorrect standard in convicting Miller of attempted murder. * * *

Miller’s speedy trial rights were not violated by the trial court’s granting of the State’s continuance motion. There was sufficient evidence as a matter of law to reject Miller’s insanity defense. However, it is apparent the trial court as fact finder applied the incorrect standard of a “knowing” mens rea rather than “specific intent to kill” in deciding to convict Miller of attempted murder. We reverse and remand for a new trial in accordance with this opinion.

NFP civil decisions today (4):

Sally Witherspoon v. Tawanna Brown (mem. dec.)

Sanders Development Group, Inc. v. Willow Properties, LLC (mem. dec.)

Don Niemeyer, Jon Niemeyer, Brent Hegerfeld, Stanley Hegerfeld, Hoagland Holdings, LLC, et al. v. The Board of Trustees of Allen County Regional Water & Sewer District (mem. dec.)

In Re: The Matter of Joyce Hall Incapacitated Adult, Barbara Rich and Donald Rich v. Imogene Suzann Fischman (mem. dec.)

NFP juvenile and criminal decisions today (3):

Garit Tuggle v. State of Indiana (mem. dec.)

Miguel A. Garcia-Cheverez v. State of Indiana (mem. dec.)

Samuel Jacob Fies v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: The email attachment that is the object of Groth v. Pence is now public

Updating this ILB blog from March 15th, which linked to the document at issue, Fatima Hussein of the Indianapolis Star reports this morning in a story headed "Pence document shows Republican strategy for fighting Obama immigration plan." Some quotes:

After the administration of former Gov. Mike Pence, who is now vice president, fought the release of a political white paper for two years, the contents of the document were released by officials from another state.

The six-page document discusses legal precedents that could be used to challenge former President Barack Obama's 2014 decision to defer enforcement of certain immigration laws.

"The focus of the proposed litigation is not immigration," said the document, written by Texas Gov. Greg Abbott, who was then attorney general. "Rather, it is the scope of executive authority." * * *

Wednesday, the white paper obtained from another state was released by a website called Rewire, dedicated to women's reproductive rights. Just hours later, attorneys representing the governor's office sent Groth's attorney, Greg Bowes, a copy of the white paper and filed a motion "Regarding Change in Circumstances," in an attempt to moot the case.

"Because the document is now in the public domain for the first time, it is now subject to disclosure under APRA," wrote attorney Joseph Chapelle to Bowes. Chapelle originally represented Pence, but under rules of civil procedure now works on behalf of current Indiana governor Eric Holcomb.

The white paper focuses on how "the unchecked expansion of executive authority wielded by President Obama threatens the constitutional balance of power."

Ironically, the Groth v. Pence case also touches on a question of executive authority. After Groth filed suit in Marion County Superior Court, a judge ruled in favor of Pence, saying the redactions the administration made to the public record were "proper."

The ruling left open the possibility that the executive branch could claim that its redactions were nonjusticiable, a legal term that means not for the court to decide. That finding was based on an earlier Supreme Court ruling in Citizens Action Coalition, et al. v. Indiana House Rep. about redactions made by the legislature.

Groth appealed the decision in April. This January, the Indiana Court of Appeals ruled that Groth does not have the right to view the political white paper, but disagreed with the governor's contention that it would violate the separation of powers doctrine for the judiciary to second guess the redactions.

That was an important finding to advocates of government transparency, who feared a Pence victory in the suit could set a broader precedent that would embolden future governors to refuse to disclose or heavily redact public documents with no court oversight.

Earlier this year, Groth petitioned the Indiana Supreme Court to take up the case, then attempted to remand the case back to the trial court in light of an IndyStar investigation revealing that Pence used a private email account to conduct government business and was hacked.

Bowes said the revelation of the white paper may affect how the court proceeds, "but this does not moot our case," he said.

"The revelation just supports our argument that we made to the Supreme Court that Texas was obviously seeking other states to join the lawsuit," Bowes said. "We feel an obligation for the case to continue."

ILB: Here are copies of:

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana application yesterday [Updated]

In McKinley Kelly v. Richard Brown, an 8-page, 2-1 ruling involving an Indiana prisoner, Judge Manion writes:

McKinley Kelly has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authoriza‐ tion to file a second or successive petition for a writ of habeas corpus under § 2254. Kelly is serving a 110‐year sentence (two consecutive terms of 55 years) for two murders he committed when he was 16 years old. He will first be eligible for parole on February 1, 2050, when he will be 70 years old. Kelly wants to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life sentences for juvenile offenders is unconstitutional), which was made retroactive by Montgom‐ ery v. Louisiana, 136 S. Ct. 718 (2016). Miller applies not just to sentences of natural life, but also to sentences so long that, alt‐ hough set out as a term of years, they are in reality a life sen‐ tence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).  

Because Kelly stated a possible claim to relief under Mil‐ ler, we invited the State to respond, which it has done. It ar‐ gues that Kelly cannot state a claim to relief under Miller be‐ cause his sentencing judge was afforded significant discretion by the Indiana Code to fashion an appropriate sentence and, in fact, considered Kelly’s age at the time of the offense in mit‐ igation. * * *

We agree with the State: Kelly was afforded all he was entitled to under Miller. The sentencing court had considera‐ ble leeway in fashioning Kelly’s sentence and in fact consid‐ ered his age when deciding on the appropriate term. Accord‐ ingly, we DENY authorization and DISMISS his application.

[p. 5] POSNER, Circuit Judge, dissenting. When McKinley Kelly was 16 years old, he shot and killed two people. Tried and convicted in an Indiana state court of the two murders, he was sentenced to 110 years in prison. Even if, as the State says, Kelly will be eligible for parole when he is 70, he never‐ theless is effectively serving a life sentence. * * *

We should allow him to pursue his Miller claim in the district court, which should conduct a hearing to determine whether he is or is not incorrigible.

[Updated at 10:21 AM] Or, as Zoe Tillman of @Buzzfeed tweets:
7th Circuit: man sentenced to 110 years for murders he committed at age 16 can't challenge sentence; Posner dissents

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Ind. (7th Cir.) Decisions