Friday, May 15, 2015

Judicial bias against pro se litigants in Hamilton County Indiana

Confidence in the judicial system requires that litigants appear before a fair and impartial tribunal. It is not uncommon for an aggrieved party following the conclusion of a proceeding to feel or express a sense of bias in the proceedings or decision. More often it is the pro se litigants who are so miffed at the court system. In my experience I have found that judicial officers rarely hold a bias or deprive litigants of a fair proceeding. Pro se litigants frustrate the system by not being prepared, not following the Rules of Trial Procedure, and lacking a familiarity with the process that facilitates judicial economy. As with anything else there are standouts in the crowd.

When the Boone County Prosecutor, Todd Meyer, alleged that I had neglected my son and had me jailed I consulted three attorneys about the case. All of these experienced litigators who have been trained in qualified law schools and have passed the bar exam and remained in good standing told me I had no chance of winning. Plea agreement was the phrase of the day for each. Being that it was my ass on the line I was not at all prepared nor willing to roll over and play dead.

When Brian Moore was deprived of legal counsel at a contempt hearing and then threatened will jail time upon a compliance hearing, he appealed. He did so without the aid of any of the plethora of attorneys who have been trained in qualified law schools and have passed the bar exam and remained in good standing.

Mr Moore may have had good reason to shun the use of an attorney in appealing the denial of his request for legal counsel at the contempt hearing. I have previously written about the child custody cases and appeals which were handled by attorneys. In Determining the Best Interest of the Child: Obtaining an Attorney that can Effectively Advocate I cautioned that “[y]ou may think that if a law firm is employing him then he must be competent enough to perform his job. That assumption is in error. The self-described decision to treat psychological issues with a regiment of alcohol demonstrates the lack of rational judgment exhibited by this attorney.”

In Why a Competent Attorney is a Must or How to Stay in Prison I reviewed an appeal of a wholly incompetent attorney. In Should Indiana Attorneys be presumed more competent than pro se litigants? I again provided examples of how attorneys botched child custody cases. But before going into details of these cases I am going to move onto the content of the Hamilton County Courts website which a pro se parent brought this information to my attention.

The page “Representing Yourself in Court” contains this introduction;

As a "pro se" the first thing to do is to ask yourself, "Am I sure that I want to represent myself?" In answering that question, you must keep this in mind: YOU WILL BE HELD TO THE STANDARDS OF A LAWYER. You should follow all the rules that apply to lawyers. If you fail to follow the rules, you may be subject to the same penalties as if you were a lawyer.

Although the court personnel, such as the court's staff and the court clerk' staff, can answer some questions about the court's procedures, the law prohibits court personnel from giving you legal advice because the are not trained to do so.

There is an old saying: "The person who represents himself has a fool for a client." There are at least two reasons for this saying. First, you will find that the legal process is complex and difficult to understand. The person on the other side of your case will probably be represented by a lawyer. Without a lawyer, you will be at a disadvantage. Second, you have a personal interest in the outcome of your case, which will deprive you of the objectivity you need to present your case effectively in court.

You improve your chances of winning your case when you have a lawyer represent you. So, you should make the decision to represent yourself carefully.

The decision whether to represent one’s self in court is of great significance. Hamilton County provides some cautions and admonitions that reflect upon this decision. There does appear to be a clear bias that pro se litigants will not be well represented and it could be interpreted that they are declared to be fools. There are a few statements on this page which strike me as being inappropriate in the context of judicial impartiality.

First, “[w]ithout a lawyer you will be at a disadvantage.” [emphasis added] Second, you will be deprived of “the objectivity you need to present your case effectively in court.”

Without the aid of counsel in court I concur that most litigants would be disadvantaged but this is not absolute. To say you will be at a disadvantage reflects a bias, whereas to say you may reflects a likely reality. I disagree that the objectivity held by a disinterested attorney is best for a parent facing the loss of a relationship with his or her child, or as in my case a significant prison term. It is the subjectivity, the interest, the bias, and the passion that a self-represented parent brings to the court that produces the advantage. Now, back to the examples previously referenced.

Although attorneys were ready to fold at the start and give 100% credence to the prosecutor’s allegations against me it was my subjective position that drove me to represent myself. For two years I appeared at numerous pre-trial hearings for about 12 total hours in court time before Judge Steve David. I withstood the trial date being rescheduled four times. The case got passed through four prosecutors among three counties. The last prosecutor moved to dismiss the case nearly two years to the day of my arrest. My response to the case that lawyers said was an “unwinnable case” was to immediately file to reinstate the felony charge and for a trial by jury because I didn’t want the case dismissed. Instead, my personal interest, my subjectivity, my pride for myself and my son required that the truth be presented to a jury which would declare that I had not deprived my son of necessary life sustenance which threatened his life. But now Indiana Supreme Court Justice Steve David would not allow such to happen and my motion was denied.

Mr. Moore could have taken the judge at his word that in defending against a contempt charge for child support payments that Mr Moore was not entitled to be represented by an attorney paid for by the State of Indiana. When he recounted the judge’s reasoning and ruling to me Mr Moore felt that it was improper. To me it was an absolute violation of his rights and I asked Mr Moore questions until he drew the same logical and legal bases for finding that the judge erred as I had immediately noticed. Mr Moore then, pro se, filed an appeal of that decision. The Indiana Court of Appeals in a published opinion [Moore v. Moore, 11 N.E.3d 980 (Ind. Ct. App. 2014)] delivered on 13 June 2014 sided with Mr. Moore and vacated the trial court’s contempt finding. The contempt citation has yet to be reheard.

Those attorneys who were admonished by the Indiana Court of Appeals for their blatant violation of the Rules of Appellate procedure are the ones who should read Hamilton County’s admonition that “[y]ou should follow all the rules that apply to lawyers.” If the lawyer doesn’t follow the rules he or she may risk sanction by the court or the Indiana Whitewash Commission of the Supreme Court, but you . . . you may risk losing a relationship with your child.

The decision to represent yourself is a serious one that requires you to consider your aptitude, your subjectivity, and your motivation. In Hamilton County you will apparently need to decide if you feel you can overcome the judicial bias favoring litigants represented by an attorney.

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