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Judges uphold theft charge against man

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On interlocutory appeal, the Indiana Court of Appeals affirmed the denial of a man’s motion to dismiss his theft charge in Jay County because he caused the delay in the case by absconding. The case brought up the issue of whether knowledge by jail officials on the whereabouts of the defendant can mean that the judge and prosecutor were sufficiently notified.

George Feuston was arrested in Jay County and charged with Class D felony theft on May 3, 2009. While out on bond, he didn’t appear for his pretrial conference and was arrested in Delaware County on an unrelated charge in August 2009. In August 2010, Feuston filed a motion requesting a discharge of his theft charge pursuant to Indiana Criminal Rule 4(C) because more than a year had passed since he was arrested in Jay County. In an October 2010 motion, he attached a purported fax correspondence between the Delaware and Jay County jails showing that Jay County jail officials knew he was in the Delaware County jail, but there’s not chronological case summary entry in his Jay County case around the time the fax was sent.

The trial court denied his motion, concluding that he was responsible for all the delay from the time of his pre-trial hearing until August 2010 when he filed his motion.

In George A. Feuston v. State of Indiana, No. 38A02-1011-CR-1175, the judges affirmed the denial of his motion for discharge. The judges rejected his argument that his whereabouts is irrelevant because the trial court could set a trial date regardless of whether he is present, citing Schwartz v. State, 708 N.E.2d 34 (Ind. Ct. App. 1999). But Schwartz says that when the record is silent as for the reason for the delay, it won’t be charged to the defendant.

Judge Terry Crone wrote that the court was not inclined to create duty on the trial courts that they must fill their calendars with “place holder” trial dates for defendants who haven’t appeared or whose whereabouts are unknown.

The judges also discussed the issue of whether the Jay County jail officials had knowledge of Feuston’s location based on the fax presented by Feuston. The majority concluded that knowledge of a police office or correctional officer shouldn’t be imputed to the trial court or prosecutor in these circumstances, citing State ex rel. Johnson v. Kohlmeyer, 261 Ind. 244, 303 N.E.2d 661 (Ind. 1973).
 
Feuston didn’t present any evidence that the trial court or prosecutor knew where he was before he filed his August 2010 motion, so he hasn’t shown he’s entitled to discharge. In addition, he does not have clean hands in the matter since the prosecutor and court lost track of him because he absconded, wrote Judge Crone.

Chief Judge Margret Robb concurred in result because she felt the majority hold was too broad. She wrote that if there was indisputable evidence that jail officials knew where Feuston was and that he was incarcerated in Delaware County, the trial court and prosecutor were sufficiently notified of his whereabouts to begin the Rule 4(C) clock running as of that date.

But in this case, there is only evidence suggesting that the Jay County Jail became aware of his incarceration and the burden is on Feuston to support his claims, which he did not do, she wrote.

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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