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Democrat stalwart said to be U.S. attorney nominee

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The U.S. Attorney's Office in Southern District of Indiana has been without a presidentially appointed U.S. attorney for more than two years - an extraordinarily long stretch for a position that usually can be filled in half that time.

Political watchers point to President Barack Obama's taking longer than his past two predecessors to fill the nation's top 93 federal prosecutor appointments. In the Northern District of Indiana, the president nominated acting U.S. Attorney David Capp in late December to fill that district's vacancy. Capp has been interim U.S. Attorney since July 2007 when then U.S. Attorney Joseph Van Bokkelen joined the District Court. His nomination is still awaiting confirmation. But in Indianapolis, another factor is contributing to the delay.

Sources said high-profile trial lawyer Linda Pence in October withdrew her candidacy, which was fronted by Democratic Sen. Evan Bayh, several months into the routine, yet extensive, vetting process.

Now the frontrunner for the post is Joe Hogsett, another Indianapolis lawyer, according to sources including Ed Treacy, chairman of the Marion County Democratic Party.

Neither Pence nor Hogsett would discuss details of their nominations, which they refused to even acknowledge.

Pence, who practices at the Indianapolis office of Cincinnati-based Taft Stettinius & Hollister, is a veteran white-collar criminal litigator. Her credentials include working at the Department of Justice from 1974 to 1983.

Hogsett, a partner at Indianapolis-based Bingham McHale, served as Indiana Secretary of State from 1989 to 1994, and was chief of staff for then-Gov. Bayh from 1995 to 1997.

"I think either one of them would make an excellent U.S. attorney," Treacy said. "Hopefully, they can get something done soon."

Because Bayh is foregoing an attempt at re-election in November, Treacy and other political insiders think a new U.S. attorney in Indianapolis could be named before he leaves office. Bayh gets to submit a candidate to the president because he's Indiana's senior senator belonging to the party occupying the White House. Phone calls to Sen. Bayh's office in Washington, D.C., were not returned.

After Obama's first year in office, just a third of his nominations had been confirmed by Congress, compared with more than half at roughly the same time under former presidents Bill Clinton and George W. Bush.

"One might expect things to move more quickly, but this president has been slower to nominate U.S. attorney positions," said David Orentlicher, a former state representative and professor at Indiana University School of Law - Indianapolis.

Both Orentlicher and Treacy attributed some of the cause for the delay to partisan politics.

"Because of the difficulty of the Republicans in the Senate holding everything up, that it would take such a long time to get done, [Pence] withdrew her name from being considered," Treacy said.

Senate-confirmed appointments to Department of Justice offices, particularly U.S. attorneys, are political in nature. They serve under the direction of the Attorney General and conduct most of the trial work in which the United States is involved. That includes the prosecution of criminal cases brought by the federal government, and the prosecution and defense of civil suits. Yet they really don't set policy but follow the strategies deemed important by the new administration, former U.S. Attorney Susan Brooks said.

In Indianapolis, the U.S. attorney manages a staff of about 80, including roughly 30 lawyers.

The Southern District has been without a presidentially appointed U.S. attorney since Brooks left in October 2007, about a year before Obama was elected president. Given the short time remaining before the election, political experts said it wouldn't have made much sense for Bush to nominate a successor.

Brooks, now general counsel and vice president of work force and economic development at Ivy Tech Community College, can appreciate what Pence endured.

Background checks conducted by the Justice Department and Federal Bureau of Investigation are quite extensive and typically comb through a candidate's past dating to his or her college years.

Criminal, political and financial histories are explored, as well as even the views expressed in written documents, said Brooks, whose nomination took 10 months to get confirmed in October 2001.

Brooks doesn't fault former President Bush for failing to recommend a replacement for her. But the time that has elapsed without a permanent U.S. attorney is "what's getting long now," she said. Such an extended period of time without a permanent replacement can create uncertainties, said John Maley, a partner at Indianapolis-based Barnes & Thornburg, who has a large federal practice. "It's not something that you would want to leave open indefinitely," he said, "just in terms of continuity and expectations and those types of things."

Moreover, having an interim U.S. attorney likely means the staff is short one lawyer, who is filling the position, Maley said.

That person would be Tim Morrison, a 20-year veteran of the Department of Justice, who has served as interim U.S. attorney twice before - in October 1993, and from February 2000 to October 2001. Morrison, who declined to specify a political slant, said he's not interested in being nominated for the job. "Politics has nothing to do with it," he said. "It's because I want to stay." U.S. attorneys are prevented from working in any position in the offices after they have finished serving. Morrison, like many of the lawyers on staff, boasts several years of federal legal experience. Newly appointed U.S. attorneys typically are prohibited from replacing staff, making turnover rare despite the enticements of a more lucrative private practice.

"They stay there because they love the work," Brooks said. "I think they love the fact that their client is the United States of America."

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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