Monday, April 16, 2018

Selecting the 2018 Boone County Circuit Court Judge

Contested political races in Boone County, Indiana are somewhat unusual. When it comes to the courthouse office holders it is quite so. This year it is refreshing to see that we have three candidates vying to be the Republican nominee for the position of Boone Circuit Court Judge. As there are numerous candidates, it is more important for the electorate to be aware of the qualities one should possess to hold the office. Before addressing essential attributes to be a Circuit Court judge it is necessary for voters to know what the position entails which I have found that many prospective voters do not.

Van Gogh could upend your confidence in him as a painter if presented with a 5-gallon bucket of exterior latex, an air compressor and a spray gun. Likewise, the recent immigrant who has used those tools while efficiently and fabulously bring new life to a home by applying a fresh coat of paint may fail miserably when presented with a blank canvas and a palette of oils. Both of these “painters” who may be wholly capable in their own niche may not be the appropriate candidate as your “painter”. Such it is with being a Circuit Court “judge”.

The Indiana Code provides the case types of a Circuit Court judge:

IC 33-28-1-2
Sec. 2. (a) All circuit courts have:
(1) original and concurrent jurisdiction in all civil cases and in all criminal cases;
(2) de novo appellate jurisdiction of appeals from city and town courts; and
(3) in Marion County, de novo appellate jurisdiction of appeals from township small claims courts established under IC 33-34.
(b) The circuit court also has the appellate jurisdiction that may be conferred by law upon it.

Boone Circuit Court judge candidate Tamie Morog in her own words

Boone Circuit Court judge candidate Todd Meyer in his own words

Boone Circuit Court judge candidate Lori Schein in her own words

In reviewing the qualities of a candidate for a judicial office there are particular attributes relevant to the office which may not be relevant to other positions or reflective of personal ethics otherwise. The Judicial Canons[fn1] provide structural ethical rules but there are characteristics which subsists these. The judicial office carries with it a particular immense responsibility that is paramount to all others and has been given considerable attention in the US Constitution as well as the Constitution of the State of Indiana.

From the US Constitution comes these protections for those accused of offenses. An accused is entitled to; not answer to a crime except upon presentment of indictment, protection against double jeopardy, protection against self-incrimination, due process[fn2], a jury trial, compel the attendance of favourable witnesses, the assistance of counsel[fn3] bail in an amount not deemed excessive[fn4] and the presumption of innocence[fn5].

All of these are designed to serve to protect the liberty of the falsely accused defendant[fn6]. Before reaching the judge there is a series of screens intended to protect the accused. The accuser is required to make a sworn accusation under penalty of perjury. This may be a private individual or a law enforcement agent. Then a charge may be issued unilaterally by a prosecutor or upon return of an indictment by a grand jury. It has been said, however, that even a novice prosecutor can get an indictment returned against a ham sandwich. The defendant has the right to a trial by jury which is to judge both the defendant and the law. There is also a continuing obligation to protect the falsely accused which extends from prior to the filing of a charge to the termination of the defendant’s trial.

A prosecutor who has an extremely high or 100% conviction rate should rightfully be viewed with suspicion. This is because the prosecutor is imbued with a quasi-judicial mandate. That is, he or she is to seek justice[fn7]. Thus, the prosecutor has just as great of an obligation to seek the acquittal of a defendant who is falsely accused as he does a conviction for the truly guilty. This concept is manifest in the rules which delineate a prosecutor’s obligation to unilaterally disclose discovered exculpatory evidence to the defendant, enthusiastically respond to discovery requests, and not debark from a course of investigation which may exonerate the defendant [fn8].

The judicial officer should always view a defendant with the presumption of innocence. I recall being in the chambers of a judge who had been on the bench for over 20 years. He terminated our conversation by saying, “I have to go do the arraignment of this kid who murdered . . .” and we departed. This arraignment was his first encounter with the accused. If he was asked at the time if he thought the accused was guilty he would have said he presumes him to be innocent and he will wait for the trial or something to that effect. Clearly, by what he said to me privately, he was not beholden to the presumption of innocence for all defendants. I would later write an appellate brief which would lead to a judgment of his being overturned and it further established case precedent [case law] for an accused’s right to court appointed counsel in certain situations.

A final protection for members of society accused of offenses that should be embraced by a judge is that the jury has the right to determine the law[fn9]. This right arises under the democratic republic concept that government is ordained by and emanates from the will of the people not that government rules the people. Thus under a strict application of the jury nullification concept any member of a jury should be able to declare, “I believe beyond a reasonable doubt that the defendant is guilty of the charge but I do not agree that the law as applied in this case is just or I do not support the existence of the law so I, therefore, find in favour of the defendant -- not guilty”. The citizenry -- as jurors -- would have the ultimate veto power over the legislature. However, the Indiana Supreme Court has neutered this constitutional protection[fn10]. A juror is under no obligation to explain the decision reached to anyone.

A judge who does not embody this concept or is resistant to a jury being informed of their right in this regard has relinquished neutrality -- a theoretical hallmark of the judiciary.

The position of Circuit Court judge also includes the assignment of certain civil cases. Adoption cases are one of these. This may involve cases where a parent has voluntarily placed the child for adoption of where the State has moved to terminate the rights of the parents and place the child for adoption. These are awesome responsibilities. The right to direct the upbringing of a child has been declared a “fundamental parental right”[fn11] commensurate with protections in the Bill of Rights. Severing parents from their children has a lifelong impact on those parents and, more significantly, the children. The person making that decision must exhibit a keen sense of human behaviour, must be able to empathize with the child and parents, and not be swayed by the weight of the status of the state.

Similarly, there are family law cases involving child custody where one parent initiates suit against another to gain a government mandate dictating the time allocation of each parent apportioned to the child as well as who legal responsibilities will be conferred upon. These can be contentious proceedings. My expertise and practice has been focused on the high conflict parents and mitigating that conflict. While the State is not moving to restrict or terminate a parents’ access to the child in these cases the decision a judge makes can still have just as profound of an impact. Possibly more because these cases may involve parents who passionately care about the well-being of their child [but are selfish] rather than abusive or neglectful parents. These custodial decisions must be made with a full understanding of the impact upon the lives of the people involved. It is not a perfunctory or mechanical task.

In deciding upon who to select as my choice for judge there are few documentary or statistical exhibits which will hold much sway. Although have been a member of the lawyer cartel is a statutory requirement trial experience is of little importance. Rather, I seek someone who shows the character traits that he or she intends to serve the interest of the people, that personal preferences or biases are checked at the door, that court appearances can be stressful and upsetting moments for people and they should be handled accordingly, that judgments are not formulated until conclusion of submission of evidence, and that no amount of time is wasted if it is in furtherance of reaching a just conclusion. Finally though is that the candidate must embrace the concept that he or she is there upon the will of the people and serves at the mercy of the people.

On 09 April I sent a questionnaire to each of the three candidates comprised of six questions and an essay section where I will publish, word-for-word, whatever they have to say about themselves. I requested that responses be returned no later than the 16th of April. I will soon publish the results of each individually and simultaneously.

2] US Constitution Amendment V
3] US Constitution Amendment VI
4] US Constitution Amendment VIII
5] In a fraud scheme involving the Indiana National Bank the Court stated, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432 (1895)
6] It is held that "[g]uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common law tradition, to some extent embodied in the Constitution, has crystalized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property." Brinegar v. United States, supra, at 338 U. S. 174.
The burden of proof in criminal trials is based upon “a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re WINSHIP, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)
7] In Brady v. Maryland, 373 U. S. 83, 473 U. S. 87 (1963), this Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment."
8] AMERICAN BAR ASSOCIATION Fourth Edition of the CRIMINAL JUSTICE STANDARDS for the PROSECUTION FUNCTION Standard 3-5.4(a) After charges are filed if not before, the prosecutor should diligently seek to identify all information in the possession of the prosecution or its agents that tends to negate the guilt of the accused, mitigate the offense charged, impeach the government’s witnesses or evidence, or reduce the likely punishment of the accused if convicted.
ibid (e) A prosecutor should timely respond to legally proper discovery requests, and make a diligent effort to comply with legally proper disclosure obligations, unless otherwise authorized by a court.
ibid (g) A prosecutor should not avoid pursuit of information or evidence because the prosecutor believes it will damage the prosecution's case or aid the accused.
9] “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” Article I, Section 19 of the Indiana Constitution
10] In a 3-2 decision the Indiana Supreme Court found - Although there may be some value in instructing Indiana jurors that they have a right to "refuse to enforce the law's harshness when justice so requires," the source of that right cannot be found in Article I, Section 19 of the Indiana Constitution. This Court's latest pronouncement on the subject is correct: "[I]t is improper for a court to instruct a jury that they have a right to disregard the law. Notwithstanding Article 1, Section 19 of the Indiana Constitution, a jury has no more right to ignore the law than it has to ignore the facts in a case." Bivins v. State, 642 N.E.2d 928, 946 (Ind.1994)
Holden v. State, 788 NE 2d 1253 - Ind: Supreme Court 2003
Here is Justice Dickson, who joined Rucker in dissenting and whose dissent was joined by Rucker:
First, I disagree with the majority’s understanding of Holden v. State, 788 N.E.2d1253, 1253-54 (Ind.2003). Although not part of the majority’s actual holding but only reflected in its preliminary commentary, today’s opinion expresses a view that Holden stands for the proposition that Indiana juries do not have the power to acquit despite overwhelming evidence in criminal cases. To the contrary, I believe that this Court unanimously acknowledged in Holden that our state’s early jurisprudence held that, in the exercise of its law-determining function under Article 1, Section 19 of the Indiana Constitution, a jury could disregard the instructions of the trial court, but had no right to disregard the law. Id. at 1254, citing Blaker v. State, 130 Ind. 203, 204, 29 N.E. 1077, 1077-78 (1892). Our analysis in Holden also noted recent views from other jurisdictions and discussed recent academic literature arguing that a jury’s right to decide the law did not encompass the right to nullify. Holden, 788 N.E.2d at 1255. Holden did not attempt to resolve these competing perspectives, but rather issued a narrow holding focused on the propriety of expressly advising the jury that “you [have] the latitude to `refuse to enforce the law’s harshness when justice so requires,'” an instruction that had been tendered but refused. Id. at 1253. We held only that a jury should not be affirmatively instructed that it has a right to disregard the law, and that the tendered instruction was properly refused. In my view, however, Holden does not prohibit Indiana juries from exercising their historic power to find in favor of a criminal defendant despite substantial contrary evidence.
. . .
Third, the majority acknowledges that the rejected jury instruction was a correct statement of law, but declares that it would have been inappropriate to inform the jury of this legal principle because of the effect it might produce. . . . [T]he majority concludes that the substance of this instruction was adequately communicated to the jury by the following instruction: “[Y]ou have the right to determine both the law and the facts. The Court’s instructions are your best source in determining the Law.” Id. at 261. I cannot agree that this latter, broad, unspecific, and opaque instruction was adequate to inform the jury of the legal principal embodied in the defendant’s tendered instruction . . . .
Innocuous, generic, non-specific jury instructions are not an adequate substitute for plain-language advisements that meaningfully explain to jurors the reality of their rights and permissible function under the law. In my view, the resulting obfuscation and secrecy is inconsistent with the Rule of Law.
Because I believe that the defendant was entitled to have the jury meaningfully instructed regarding its right to find in favor of a criminal defendant despite substantial contrary evidence, a historic right of American juries and one additionally preserved in Section 19 of the Indiana Bill of Rights, I dissent from the majority’s opinion.
11] “In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children” which is referred to as “[T]hat fundamental parental right.” TROXEL V. GRANVILLE (99-138) 530 U.S. 57 (2000)

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