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Opinions Jan. 23, 2014

January 23, 2014
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Indiana Court of Appeals
A.J.R. v. State of Indiana
46A03-1306-JV-243
Juvenile. Holds that the juvenile court did not abuse its discretion by admitting the officer’s testimony, and the evidence is sufficient to prove A.J.R. shot two cattle and to sustain his adjudications for criminal mischief. However, concluding A.J.R.’s actions did not constitute mutilation or torture of an animal, the court reverses his adjudications for cruelty to an animal.

Chubb Custom Insurance Company, et al. v. Standard Fusee Corporation
49A02-1301-PL-91
Civil plenary. Reverses summary judgment and award of defense costs in favor of Standard Fusee Corp. Concludes that the total pollution exclusion clause in Chubb Custom’s comprehensive general liability insurance policies is applicable to Standard Fusee’s liability for the release of perchlorate and therefore its duty to defend and indemnify is not triggered.

Johnathon R. Aslinger v. State of Indiana
35A02-1303-CR-296
Criminal. The trial court erred in admitting the evidence seized in violation of Aslinger’s Fourth Amendment rights and in imposing consecutive habitual substance offender sentence enhancements. Reverses convictions of possession of methamphetamine and paraphernalia and remands in Case No. 127. Instructs the trial court order the HSO enhancements be served concurrently. Concludes that, in Case No. 152, the trial court did not err in excluding Aslinger’s jury instruction, and his sentence for dealing methamphetamine is not inappropriate in light of the nature of the offense and character of the offender. Judge Robb concurs in separate opinion.

State of Indiana v. DeAngelo Banks
49A02-1303-CR-235
Criminal. Affirms grant of Banks’ motion to suppress his confession of murder. The record reveals that the detective’s advisement did not inform Banks that he had the right to have counsel present during the questioning at issue and thus failed to properly advise Banks of his Miranda rights. The trial court considered the evidence presented of Banks’ mental illness, heard his own testimony, and came to the conclusion that his statement was not voluntary. There is substantial evidence supporting the trial court’s conclusion.

Dexter Hawkins v. State of Indiana (NFP)
49A04-1305-CR-233
Criminal. Affirms conviction of Class B misdemeanor criminal mischief.

In the Matter of the Termination of the Parent-Child Relationship of: R.A.B. (Minor Child) and Z.T.B. (Mother) & R.W.B. (Father) v. The Indiana Department of Child Services (NFP)

02A03-1306-JT-234
Juvenile. Affirms termination of parental rights.

Tyrone Shelton v. State of Indiana (NFP)
71A04-1308-CR-387
Criminal. Affirms conviction of Class B felony serious violent felon in possession of a firearm.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

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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.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  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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