To be a duly authorized police officer requires taking an oath or swearing to uphold the Constitution and the laws of the state and local jurisdiction in which one is to serve.
In his paper on the oath of office Richard W. DeShon of the St. Clair County Sheriff’s Department wrote,
"Is this oath a superficial statement made by our police officers without any understanding of what they are swearing to? Do they really know what the oath requires of them? I think most police officers as well as politicians are just reading the words without any understanding."[1]
I agree with DeShon who also states, as I have throughout my years of activism, that police officers must be held to a higher standard. I, as most of you, have never taken an oath to obey every law in the jurisdiction in which we live. We are merely subject to them. Often times Police Officers place their allegiance to obey the law before God.
A typical oath that a police officer takes may be something like this;
I, (OFFICERS NAME) do solemnly swear or affirm that I will bear true faith and allegiance to, and will obey, uphold and defend the Constitution of the United States of America and the Constitution of the State of __________, and the laws and ordinances of the City of ______________. I will faithfully and impartially discharge and perform all the duties incumbent on me as a Police Officer in the Police Department of the City of _____________, so help me God.
The American Dictionary of the English Language, define an oath as:
"A solemn affirmation or declaration, made with an appeal to God for truth of what is affirmed. The appeal to God in an oath, implies that the person imprecates his vengeance and renounces his favor if the declaration is false, or if the declaration is a promise, the person invokes the vengeance of God if he should fail to fulfill it. A false oath is called perjury."
The requirement for police officers to take an oath of office is found in the United States Constitution.
“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and the several States, shall be bound by Oath or Affirmation, to support this Constitution..."
(U. S. Constitution 1787). For purposes of the US Constitution a police officer is an officer of the Executive.
One law that each police officer has sworn to uphold is that which criminalize providing false testimony. In Indiana that is as follows;
IC 35-44-2-1 - Perjury
Sec. 1. (a) A person who:
(1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or
(2) has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false;
commits perjury, a Class D felony.
(b) In a prosecution under subsection (a)(2) of this section:
(1) the indictment or information need not specify which statement is actually false; and
(2) the falsity of a statement may be established sufficient for conviction, by proof that the defendant made irreconcilably contradictory statements which are material to the point in question.
So, by taking the oath to speak "the truth, the whole truth and nothing but the truth" which is administered to each affiant in a judicial proceeding an officer is subjecting himself to a charge of perjury if he makes contradictory statements.
Can we ever trust police officers to tell the truth? Let me first show you the testimony of a police officer who is a liar. Colfax Indiana Marshal Duane Lewellen lives in Thorntown Indiana [111 North Front Street] and acts as a reserve deputy for that town.
Lewellen was summoned to my home by former Thorntown Town Council President Gary Jones about a sign in my yard that read "Thorntown Council Meets Here Because They Are Full of Sh . .". The sign was accompanied by three toilets and a fiberglass boat shell. This was in response to the town's failure to keep emissions in the sewage pond within state mandated levels for the prior two years.
Upon arrival Lewellen said he was asked to request that I remove the sign. I told him that it wouldn't happen. He told me that he supports the message and my right to express it. He further told me that he didn't expect for me to remove the sign and that there was nothing illegal about it. The next day the town filed a lawsuit against me alleging that the sign violated a building code ordinance by being dangerously constructed.
At a trial on a different issue Lewellen was called to testify and the attorney for the town, Carlyle Gerde, questioned him about that sign. On 12 October 2007 Lewellen testified in that other matter. Upon cross-examination by me the following exchange occurred;
SHOWALTER: And what did you state to me was the reason for coming down there to discuss the sign?
LEWELLEN: I requested that the sign be taken down because of the profanity on it. I just asked you to remove the sign and take the display down due to the festival and the complaints we'd received.
SHOWALTER: And were the complaints in the nature of any one having been injured by that sign or feeling that they were in any threat of injury from that sign?
LEWELLEN: Not that I was aware of, no.
From this exchange you can see that in 2007 Lewellen was clear that the reason that he came to my home at 11:00pm on 23 September 2006 was because of the message on a sign and that no one had complained of the sign, which was well within the boundaries of my property, having been perceived as a danger.
Earlier I had publicly challenged Lewellen about what he said. He responded by sending this message to me:
"Jeff Woodard may have been altering the truth in court that day but I (Duane Lewellen) told the Judge evertything as I had recalled it to happen, I am sorry that you don't see it that way. I, as an unpaid police officer for the Town of Thorntown, try my best to approach every situation the same and handle every call fairly with no prejudice. I am sorry if you don't feel that way."
Now let's examine what Lewellen has to say in an affidavit filed with the United States District Court for the Southern District of Indiana in the civil rights lawsuit filed against him for conspiring to violate my civil rights.
"4. On or about 23 September 2006, while on duty as the deputy town marshal of Thorntown, I entered upon the premises of the plaintiff in this cause, Stuart Showalter, and orally requested, but did not demand, that he remove the signage display on the lawn of his premises next to the sidewalk. I did not advise Showalter that he had a right to maintain the signage display.
5. The signage display appeared to be structurally unstable and abutted a public sidewalk, including an unsightly stripped down junk motorboat, and displayed profane and defamatory statements."
It is clear that Lewellen is now changing his position as the tides of litigation require. It is now his defense that he was upholding public safety by requesting that a sign be removed. Prior to the civil rights lawsuit though it was his position that the sign offended public decency because of the message.
What really offends decency is that a police officer would not demand that an alleged dangerous structure be removed. Can you see Lewellen on New Year's Day? "Excuse me, would you please stop firing that gun into the air? The bullets could land on someone and kill them. Well, thanks for considering my request. Happy New Year."
For this reason I will be making a complaint to the US Attorney because the untruthful statement was made to the US District Court. The lawyer preparing the perjured document, Michael Parkinson, will also be complained of as a inducer of the crime. I have a billing statement that Parkinson sent to former Thorntown attorney Carlyle Gerde that shows Parkinson billed for reviewing the transcripts in which Lewellen's statements appear.
Because it has been conclusively established that Colfax Marshal Duane Lewellen provided falsified testimony under oath in this case then his testimony in any other case cannot be trusted. Therefore, anyone who has been accused of an offense by Lewellen may now challenge his accusation. If a citation was issued or a ticket paid, a plea agreement was made or a finding of guilt was returned at trial that case can now be reopened.
[1] Richard W. DeShon, Police Officers oath of office and code of ethics; a question of knowledge, March 31, 2000
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©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Friday, November 27, 2009
Police Perjury - Duane Lewellen, Colfax Indiana
Wednesday, November 18, 2009
Indiana General Assembly Organization Day - Six child friendly bills
It what seems to almost be a secretive event because of lack of web presence about it members of the Indiana General Assembly gathered at the Indiana State House Tuesday for Organization Day.
This day is mostly ceremonial with members meeting in caucus then their respective chambers. Larger groups of students pour through the halls and various other ceremonial events take place.
House Minority Leader Brian Bosma of Indianapolis says House Republicans' first priority is taking another step toward amending property taxes to a 1% cap for home owners into the state constitution by passing a resolution. If lawmakers pass a resolution this year, voters will decide in November 2010 elections whether a property tax limit will be added to the constitution.
2010 will be a short session of the General Assembly starting on 05 January and ending no later than 14 March. Legislators meet in short session in years in which a budget is not being considered.
This year House members will be able to introduce 5 bills while Senators may introduce 10. This will be an especially tough time to get child-friendly legislation introduced while so many economic issues are still considered more important by most people.
I arrived at the State House shortly after 9:00am and started submitting requests to meet with legislators. Roaming the halls over the next fours hours was the easiest way to get these short meets with them. I was joined by some of our other advocates who each made a greeting with at least one of their local legislators.
Our agenda this year includes significant paternity related legislation. It is a reality that out-of-wedlock births are becoming increasingly common in Indiana and the statutes covering this area of law are out-of-date. This is going to be our greatest focus this upcoming session.
Paternity Affidavit
The most important is amending Indiana's Paternity Affidavit. The Indiana Child Custody and Support Advisory Committee [ICCSAC] earlier unanimously approved a paternity affidavit proposal that established that both parents would have joint legal custody and that fathers would have parenting time at the guideline minimums until a court hearing.
The Indiana Paternity Affidavit is a form, in addition to a birth certificate, that mothers and fathers voluntarily sign. Our proposal seeks to establish legal custody for both parents who sign the affidavit allowing each to make important medical decisions and other considerations. It would also establish minimum parenting time for fathers so that the can immediately start providing the child with the necessary involvement of both parents.
We have solid support for this proposal and have a few legislators who have expressed interest in being a sponsor.
Joint Legal Custody in Paternity actions
Last year the Assembly easily approved adding IC 31-14-13-2.3 (As added by P.L.95-2009, SEC.2.) which established the factors considered in making award joint legal custody. This language simply parroted what was in the dissolution of marriage section.
One section raised some concern for us. This was part four which reads, "whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody" Unlike in marriages children born out-of-wedlock may have been prevented from seeing their father and the father has no legal recourse available to him at that moment. For this reason we seek to amend section 2.3 with this language;
(4) whether the child has established:
(A) had the opportunity to establish;
(B) has established;
(C) the parents wish to establish; and
(D) whether either parent tried to thwart attempts by the other to establish,
a close and beneficial relationship with both of the persons awarded joint legal custody;
This will give courts the opportunity to examine the parties as to the reason a father has not had contact or developed a meaningful relationship with the child. The courts are currently prohibited from doing that by statute. We do not believe it is in the child's best interest to make a determination of custody without being allowed to know the reason a child has been prevented from having contact with a parent.
We have mixed support for this proposal and have a legislator who has committed to being a sponsor.
Adoption and Paternity
In July I wrote about a complicated legal opinion by the Indiana Supreme Court involving the adoption of the child of a man who filed a paternity action to contest the adoption.
In short, because of lack of congruence in the adoption and paternity statutes, the court ruled that the man had implicitly given his consent to the adoption by filing a paternity action in a court other than the adoption court. Current law provides that a man can contest an adoption by either filing a motion to the adoption court within 30 days or by filing a paternity action within 30 days.
Our proposal would add a new section to the paternity statutes which would require the paternity action to be filed in the same court as the adoption proceeding. The adoption statute would be amended to establish an alternative to objecting to the adoption by filing a paternity action in the same court. This would bring uniformity to both sections of the law.
We have solid support for this proposal and have a legislator who has expressed interest in being a sponsor.
Restricting Parenting Time
Attorney Michael Red has raised the standard of proof issue in I.C. 31-17-4 -2 which reads;
"The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development."
ICCSAC earlier recommended that the standard be raised to "clear and convincing" rather than might. When it comes to keeping a child from having access to the support and care of a parent there should be a more stringent requirement than the person might endanger the child. Judges in Child Protective Service cases are required to use the "clear and convincing" standard before limiting a child's access to his or her parents.
Getting in a car and driving across town might endanger you because of the possibility of a collision with another vehicle. The ultra low standard of might also places no burden upon the moving party to only bring legitimate concerns to the attention of the court.
With the use of the word "might" a noncustodial parent could be required to regularly defend against malicious attacks by the custodial parent without financial consequences for bringing a frivolous action because the standard of might allows for any allegation to be adjudicated without being determined as malicious or frivolous since nearly any act "might" endanger a child.
We have strong support for this proposal and are looking for a legislator interested in being a sponsor.
Shared Parenting
We are also going to seek to have the Shared Parenting bills that have been previously introduced by Senator Kruse [SB560] which establishes a presumption for joint physical custody and Representative Pond which establishes a presumption for joint legal custody. Both bills require that judges presume that both parents are equally entitled to custody of their children. The court would then be required to issue findings as to why it deviated from that presumption.
The Rule 52 requirement that the court issue findings should reduce the amount of subsequent litigation, especially appeals, and also be beneficial to the children as clear reasons are given for custody orders.
A parent who is simply told you don't get more than the minimum time but feels he or she should have more may seek to change that. However, understanding that because of a work schedule, emotional conditions, staying out late drinking or other prior acts clearly demonstrate the need for a particular custody schedule will give parents the knowledge to make changes for the benefit of the child.
Support for this has been mixed. Those who seek to promote continuing litigation, psychological problems in children and industries that thrive on crime have been strongly opposed.
Conclusion
Those are the six pieces of legislation that we would like to have introduced and passed in this session. If you would like to help with any of this please contact Stuart Showalter.
As an organization we plan to be at the State House again on 05 January for the opening of the second session of the 116th Assembly. Organization Day for 2010 will be on Tuesday 16 November. Please plan to be to the State House by 10:00am that day if you would like to meet your local legislators and help make Indiana a more child-friendly state. You'll at least get a great lunch out of it.
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Friday, November 13, 2009
Ensuring Father's right to challenge adoption petition
In June of this year the Indiana Supreme Court issued its opinion In re Adoption of Unborn Child of B.W. in which a father had filed a paternity action to challenge the mother's intent to place the unborn child for adoption. Unfortunately, discrepancies in the language of the Indiana statutes relating to adoption and paternity proceedings led the court to believe that the biological father had irrevocably given consent to the adoption when he filed his objection, by way of a paternity action, in another court.
I wrote about this in July with an analysis of the case under the title A Bill to Modify Indiana Adoption and Paternity Law.
The question presented was whether the appellant biological father's consent to the adoption of his child was irrevocably implied when he failed to file a motion to contest in the adoption court but did take concurrent steps to establish paternity and preserve and assert his parental rights in another court. The Superior Court Judge, Monroe, found that the father's consent was irrevocably given when he failed to file a motion to contest the adoption in the adoption court.
This was based upon the language in Indiana Code § 31-19-10-1(b) reads, “A person contesting an adoption must file a motion to contest the adoption with the court not later than thirty (30) days after service of notice of the pending adoption.”
However, Indiana Code § 31-19-4-5 states that the father's consent will be irrevocably implied if he fails to file a motion to contest the adoption; or a paternity action under IC 31-14 within 30 days of receiving the notice.
The problem arose when the paternity action was filed in a different court.
Justice Boehm in concurring with the majority stated, “I hope the General Assembly will consider requiring that a putative father wishing to contest an adoption or declare paternity must file in the court in which an adoption action is pending or otherwise assure consolidation of these two proceedings to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father.”
In response I drafted legislation that would bring congruence to these statutes. Based upon this Indiana State Senator Phil Boots had legislation drafted that would bring uniformity to those statutes by requiring that a paternity action be filed in the court having jurisdiction over the adoption proceedings. It would also establish that the manner in which a biological father could challenge an adoption would be to file a paternity action in the court hearing the adoption petition.
Preliminary Draft 3154 would add a new section to the Indiana Code, 31-14-5-9, which would read;
Sec. 9 If a person files a petition to establish paternity under this chapter and the child who is the subject of the petition is also the subject of an adoption proceeding under IC 31-19, the petition to establish paternity must be filed in the court that has jurisdiction over the adoption proceeding.
Preliminary Draft 3154 would amend Indiana Code, 31-19-10-1, which would then read;
(b) A person contesting an adoption must file:
(1) a motion to contest the adoption with the court; or
(2) a petition to establish paternity under IC 31-14 with the court having jurisdiction over the adoption case.
When this bill is set for hearing I will testify about the adoption of BW case and the reasons this legislation is needed. I would also like to have anyone who is the father of a child who was the subject of a petition to place the child for adoption over his objection to also testify. If you are interested in helping get this legislation passed please contact me.
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Wednesday, November 4, 2009
Why an attorney should know caselaw and be able to do math
One of the Indiana Custodial Rights Advocates activists, Don Chavis, was recently hailed into court on a "Petition for Contempt" filed by what I have throughout the proceedings referred to as one of Indiana's most incompetent attorneys. Her name is Jennifer A Bonesteel [#27520-49] who I affectionately refer to as "Bone-a-head". She represents the Respondent, Clarra Chavis, in this matter.
I have appeared in Marion County Superior Court IV twice now in anticipation of being called as a witness and to coach Don about his courtroom performance. The first time was on 01 September 2009, the date that the contempt hearing was first scheduled, and then again Tuesday after it was continued. Although never called as a witness I was pleased to have first-hand sight of this very interesting case.
Master Commissioner Deborah Shook sat as the judicial officer for the hearing. Shook is also a member of the Indiana Domestic Relations Committee whom I have met through that affiliation. I do hope that this case provides her with some insight into the silliness and abuses which take place in the family law courts.
Here is some background that will help you to understand just what is going on here. Don Chavis, the Petitioner, filed for divorce in August 2008. Clarra then immediately sought a Protective Order citing that Don had physically assaulted her although no prior complaint during the marriage had ever been made. This should sound familiar to many people.
The parties marriage was dissolved through a Decree of Dissolution of Marriage entered by the court on 03 March 2009. The relevant portion of that decree is as follows:
IT IS FURTHER ORDERED BY THE COURT that as the parties have not divided their personal property, Wife shall provide a list of property she intends to retrieve from the marital residence to the Court and to the Husband with [SIC] 14 days of the date of this Decree. Wife shall be allowed to return to the marital residence under the care and supervision of the IMPD to claim her personal property and the property of the minor child set forth on the list and/or stated generally, such as toys, make up etc.
I have some issues with the order. First it unilaterally allows one party to divide the marital property which is the responsibility of the court. There should be a provision that Husband may request a hearing if he wished to challenge any portion of the list. Second, is that it is open-ended. There should be something that says husband must make the items available within X days of the list being provided to him or further order of the court. The Wife should be required to retrieve the items within a specified amount of time.
On 23 March 2009, 20 days after the Decree was dated Clarra submitted her list to the Court and Don. Don had at that time already assembled most of her belongings into one room. He then placed her belongings on the porch within a few days of receiving the list. On 22 June 2009 Clarra retrieved her items following a phone call from Don's landlord to the law office where Ms Bonesteel works. Don was in the process of moving and the landlord had been notified by the City of Indianapolis that the porch filled with those items was a nuisance.
Since I had first met Don in April at his house and parked in his yard numerous times during the month of May since he lived near the Indy 500 track I was prepared to testify that those items were there and covered with plastic to protect them. I did notice one time that it appeared that someone had picked through the stuff which could explain why some of the items were missing.
On 06 July 2009 Ms Bonesteel filed a Petition for Contempt against Don. Clarra alleged that some of the items were missing which mostly consisted of consumables such as office supplies and toiletries. The matter was set for hearing on 01 September 2009.
Don filed a Motion to set aside the hearing in which he cited the following:
“A party may not be held in contempt for failing to comply with an ambiguous or indefinite order.” see City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005).
"The order allegedly violated must have been so clear and certain that there could be no question as to what a party must do, or not do, and so there could be no question regarding when the order is violated." see Indiana High School Athletic Ass’n, Inc. v. Martin, 765 N.E.2d 1238, 1241 (Ind. 2002).
That Respondent's Petition for Contempt is vexatious, without merit and is made for the purpose of harassing the Petitioner.
At the hearing on 01 September 2009 Bonesteel contended that Don should have called Clarra to inform her that the items were available and that his failure to do so placed him in contempt. She also alleged that she was sure that a list had been sent to Don within two weeks of the order and that she wouldn't have violated the order. Don argued that Bonesteel's boss had been contacted about the items being available and needing to be moved. Bonesteel then asked for a continuance which was granted to 03 November 2009.
On Tuesday Bonesteel's Boss, Gary Selig, testified that he did receive a call from a man claiming to be Don's landlord saying that the items needed to be removed. Selig states he then notified Ms Bonesteel. Don cross examined and then both sides rested since Clarra did not bother to attend the hearing. In closing Don stated that there was a protective order in place that forbids him to have direct or indirect contact with Clarra and that there is nothing in the decree that says he must contact her.
Commissioner Shook then told Don she certainly does not want him violating the protective order and would not write an order requiring him to do so. She read from Don's Motion to Vacate Hearing where he alleged that the Petition for Contempt was vexatious, without merit and made for the purpose of harassing him. She followed that with a statement that there is no finding of contempt.
I thought as Don did, that Commissioner Shook could have disposed of this matter through the pleadings since the list was clearly not provided within 14 days. But, she was quick to dispose of it at Tuesday's hearing and I think tried to send a message to Bonesteel about frivolous litigation. To that we have to say good going Commissioner Shook.
As for Bonesteel all we can say is take a remedial math class and then get in tune with the concept of caselaw. It's a great way to learn about law. Indiana Court of Appeals opinions may be read here.
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