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Defense attorneys lose appeal for compensation

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Two private defense lawyers in Marion County failed to convince the Indiana Court of Appeals that they should be retroactively appointed by the Marion County Public Defender Agency and compensated for their legal work on a case that has an intricate maze of attorney representation over the course of five years.

The court’s ruling came Friday in Timothy-Patrick Treacy v. State, No. 49A02-1010-CR-1254, an attorney fee-focused continuation of a criminal appeal that a separate appellate panel had decided in a not-for-publication ruling in September 2010.

In the underlying case that evolved in Marion Superior Judge Rueben Hill’s court, Timothy-Patrick Treacy was charged in August 2006 with two misdemeanor and two felony drunk driving counts and a misdemeanor public intoxication charge. But multiple delays involving attorney representation and court congestion pushed his jury trial back three years, and Treacy was eventually convicted on all counts in August 2009. He received a sentence that was mostly suspended and resulted in 100 days in jail and probation.

Treacy challenged the convictions on grounds that he didn’t receive a trial within one year as required by Indiana Criminal Rule 4(C), but the appellate court in September 2010 affirmed the lower court’s findings because the delays were mostly caused by the defendant.

But the lawyering continued, as private attorneys Paul Ogden and Patrick Stern who’d represented Treacy toward the end of those four years argued they should be retroactively appointed as public defenders and compensated for their work. The roadmap to Treacy’s representation is scattered through two appellate records, from this most recent attorney-fees ruling to the original Court of Appeals’ NFP decision upholding Treacy’s criminal convictions and sentence.

In the four years from when the case began to when it was completed in Marion Superior Court, the defendant had five lawyers representing him at the trial level along with multiple stints of pro se representation – the list includes two private attorneys whom Treacy fired, a public defender he threatened to file a lawsuit against, and two private attorneys who were later ordered to stay on the case or represent him intermittently because of counsel indecision or delays.

James Recker was hired and then fired between August 2006 and June 2007, and Treacy wasn’t sure about hiring another lawyer or proceeding pro se. The judge appointed Marion County public defender A.J. Reiber until the defendant decided how he wanted to proceed.

Private attorney Jeffrey McQuary appeared for a September 2007 hearing, but within four months Treacy fired him. Treacy wanted to proceed pro se, and told the court that Reiber couldn’t be re-appointed because he was threatening to sue the public defender on claims he owed Treacy $3.5 million for violating his rights.

After more delays, private defense attorney Patrick Stern represented Treacy at a January 2009 hearing after the defendant’s mother retained him for $1,000.

Several more disagreements surfaced between Treacy and his counsel, with Stern noting more than once that he’d been terminated, but the defendant indicated that was not the case and the court ordered Stern to remain as counsel on the case. At one point in July 2009, after Treacy again said he’d fired Stern, Senior Judge Richard Sallee ordered Paul Ogden, who was sitting in the courtroom gallery at the time, to assist in reviewing some tapes because he was representing Treacy in an unconnected civil matter.

About three years after the man had first been charged, the jury trial commenced and Treacy was convicted and sentenced within a month. Both Ogden and Stern were representing Treacy at the time, the court records show.

Within a month of Treacy’s sentencing, Ogden and Stern both filed petitions ordering the county to pay for their costs, which were $3,765 and $3,500 respectively. Judge Hill denied the motions, and the Indiana Court of Appeals has now dismissed the appeal – mostly because the majority found that Ogden and Stern weren’t parties to the case and Treacy hadn’t requested public appointment of the two lawyers.

Finding that it didn’t have subject matter jurisdiction, the appellate court described this as an attempt to circumvent trial and appellate rules to litigate a compensation dispute with the MCPDA on appeal rather than through a separate lawsuit.

“Although this appeal is styled as a challenge to the trial court’s denial of Treacy’s request for counsel at public expense, no such denial is actually claimed,” Judge Cale Bradford wrote. “This appeal is, in fact, an appeal prosecuted by Ogden and Stern on their own behalf in an attempt to have the MCPDA reimburse them for representing Treacy.”

Judge John Baker concurred, but Judge Melissa May disagreed and found that Ogden and Stern were proper parties and they should address the merits. She would affirm the attorney fee denials because Treacy had not raised this argument on appeal and waived it, but also because he’d been given the chance for a public defender.

“If a defendant wishes representation at public expense, he must accept the public defender appointed by the trial court; to permit any other system would undermine the public defender system created by our legislature and increase the cost of providing defense for all indigent defendants.”

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

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  4. "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.

  5. 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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