ILNews

Investigation goes beyond one case of delay

Michael W. Hoskins
January 1, 2008
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Harold D. Buntin is a focal point of the judicial misconduct investigation into a Marion Superior Court judge and his part-time commissioner, but the Indianapolis man could be just the tip of the iceberg for what's been happening in that criminal court.

The nearly dozen charges brought separately Wednesday against Marion Superior Judge Grant W. Hawkins and Master Commissioner Nancy L. Broyles, both assigned to Criminal Court 5 since January 2001, not only deal with a single case of possible wrongdoing but that the problem may go much deeper, an investigation shows.

Filing two separate notices shortly before 4:30 p.m. Wednesday, the Indiana Judicial Qualifications Commission "allege delay and dereliction of their duties as the judicial officers responsible for ... Buntin's post-conviction case and as the judicial officers responsible for providing reliable and timely information about the court's delay in the Buntin case."

The investigation findings show Commissioner Broyles has a history of past delays lasting as long as 28 months and ended with backdated rulings, some involving missing or "prematurely archived" files.

Reached by telephone this morning, Judge Hawkins said he'd known charges were coming but wasn't aware they'd been filed; he wanted to review them before commenting.

His attorney, Kevin McGoff with Bingham McHale, hadn't spoken to the judge by early afternoon.

"He's cooperated with the commission since this was first brought to his attention, and we'll continue to do so," McGoff said. "There's a procedure in place to have these charges resolved, and we'll work through that process. It's best to leave it at that."

Commissioner Broyles did not immediately respond to telephone messages from Indiana Lawyer, and her counsel could also not be reached by early afternoon to speak about the allegations.

Mostly, the 11 counts against the judge and 10 against the commissioner deal with their involvement in Buntin's post-conviction case, and alleged delays and dereliction of duty between April 2005 and March 2007 that led to Buntin remaining in prison for nearly two years after DNA results cleared him of a 1984 rape.

The charges allege that Judge Hawkins did not adequately supervise his staff and commissioner, committed conduct prejudicial to the administration of justice, and did not uphold the integrity and public confidence of the judiciary by allowing the delays in at least one case. One count accuses the judge of violating canons specifically by "creating the false impression to the Commission during its investigation that the post-it note contained evidence of a May 20, 2005 order having been prepared." Charges are similar against Commissioner Broyles.

But within the 11-pages of background and charges against each one, details from the commission's investigation reveal that up until March 2007, the part-time commissioner "routinely issued final orders in post-conviction cases without obtaining Judge Hawkins' approval and signature, contrary to Indiana Codes 33-33-49-16 and 33-23-5-8."

A full copy of the charges against Judge Hawkins can be found here and Commissioner Broyles can be found here.

The charges stem from Buntin's post-conviction proceedings that he initiated a decade ago. At age 17 in 1986, Buntin had been convicted in absentia of robbery and rape of a 22-year-old clerk at an Indianapolis cleaner, and he began serving a 50-year sentence in the Indiana Department of Corrections in 1994 after being extradited from Florida. He petitioned for relief in 1998 based on DNA evidence that wasn't available during his trial that he hoped would clear him; it eventually did in 2005. Commissioner Broyles was assigned his post-conviction hearing that March, the investigation shows. She took it under advisement in April 2005.

The case came to light after Buntin received no word from his attorney, Carolyn Rader, or the court, despite his repeated attempts to get an answer. He contacted the commission to investigate the reason for the delay.

After the commission got involved, Judge Hawkins and Commissioner Broyles eventually issued an order March 8, 2007, backdating it to May 2005. The wrongly imprisoned man was released April 20, 2007, after the commission asked why no immediate action had been taken and Buntin had again written to the court about his release.

In explaining the two-year delay, both the judge and commissioner filed a notice that blamed a court or clerk's employee for neglecting to process the order as Commissioner Broyles said she'd instructed on a Post-It note attached to the order, the charges state.

Commissioner Broyles told the commission initially during the investigation that she had issued an order three days after taking it under advisement in April 2005, despite evidence that she'd told Buntin's attorney she intended to work on the case and asked for more information after that date. When the commission notified the judge and commissioner in January 2008 that they were amending the investigation focus to include not only delays and neglect but also the possibility that they'd given false impressions about what happened, Commissioner Broyles later advised members that she may have actually issued the order in 2006 but neglected to remove the 2005 date from a proposed order submitted by Buntin's attorney.

The disciplinary notices say both were unable to explain some of the delays, with the investigation including e-mails and court records that conflict with what the two indicated had happened.

Also included in the investigation is a point about what happened after the issue came to light and Judge Hawkins and Commissioner Broyles issued the backdated order.

But even after they knew - or should have known - about the delays and that Buntin's release should have been ordered previously, neither Judge Hawkins nor Commissioner Broyles took action to mandate his release until more than a month after the March 2007 order's effective date, the investigation pointed out.

Buntin filed a wrongful detention lawsuit against Criminal Court 5 in January, and that case is ongoing in Marion Superior 13; the Indiana Supreme Court appointed Hamilton Superior Judge Daniel Pfleging in February as a special judge on the case after Marion Superior Judge S.K. Reid recused herself. Buntin also filed a suit in August 2007 against his trial attorney, Rader, and the county clerk's office said it remains open in Marion Superior 5.

Rader didn't return a phone message today from Indiana Lawyer.

Each has an opportunity to respond in writing to charges within 20 days, though that isn't required. The Judicial Commission wants the Indiana Supreme Court to appoint three masters to conduct a public hearing on the charge that Judge Hawkins and Commissioner Broyles committed judicial misconduct as alleged before deciding what, if any, sanctions should be imposed. The disciplinary action, which could take several months to resolve, could result in punishment ranging from reprimand to suspension without pay to removal from office.
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  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

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