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COA judge issues 8-page criticism of trial court missteps

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The Indiana Court of Appeals has reversed a juvenile court’s order of restitution, stating the court failed to investigate the young man’s ability to pay, and that the damage amount could not be determined to be reasonable. Judge Melissa S. May agreed with the majority, but wrote an eight-page separate opinion stating that the trial court’s many errors – including the omission of key pieces of evidence – hampered the COA’s ability to perform its review of the case.

In J.H. v. State of Indiana, No. 49A02-1005-JV-560, the state dropped a criminal mischief allegation when the juvenile defendant pleaded guilty to unlawful residential entry. The teen had tried to enter a neighbor’s home without permission and, in doing so, had damaged the door.

The neighbor had presented two estimates for repair – a first estimate of $1,000 and a second for $1,117.65. The estimates were not submitted to the defense, did not show the cost of materials and labor, and were not entered into evidence. The defense challenged the validity of the estimates and requested a dispositional hearing to question the first contractor about his estimate, but he did not appear for the hearing. The appeals court held the juvenile court failed to recognize that it is the state’s burden to prove the validity of the estimates.

In her separate opinion, Judge May wrote about the lack of completeness of the record. In a footnote, she wrote about the missing repair estimates: “If something is purported to be ‘evidence’ to establish an amount being claimed for restitution, the party seeking to use it should ensure it can be provided to the court and opposing counsel. Counsel presumably could have found a copy machine.”

She said the clerk had obviously failed to provide the documents necessary for the counsels to prepare their briefs. She also questioned why the victim’s impact statement – which had been scanned into the court’s case management system – was not part of the record on appeal.

In summary, Judge May wrote, “While I concur with the majority’s result, our decision must be read in light of the procedural missteps by trial counsel, the clerk, the trial court, and appellate counsel, as I have noted herein. These issues are not unique to this case, and are troubling when liberties are at stake.”

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  1. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. 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?

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