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Asset forfeiture dispute divides appeals panel

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An order transferring to the federal government money seized from a criminal defendant was deemed proper by the Indiana Court of Appeals Thursday, though a dissenting judge said the defendant didn’t even know the order had been issued until nearly two years later.

The majority reversed a Clark Circuit Court ruling that set aside an order to transfer to the Drug Enforcement Administration $8,765 seized in a drugs and weapons prosecution. The order was signed by the judge in Clark Division One Circuit Court though the motion was filed in Division Three.

"The Division One Circuit Court subsequently granted Downey’s motion and issued an order instructing the State to release the funds to Downey or his designee. The Division One Circuit Court issued this order over the State’s objection that the Division One Circuit Court did not have the authority to set aside the order of a different court of equal jurisdiction," Judge Cale Bradford wrote in the majority opinion joined by Judge Patricia Riley.

“In light of the long-standing rule that one court cannot control the orders or process of any other court of equal jurisdiction, we conclude that the Division One Circuit Court abused its discretion in setting aside the order,” Bradford wrote in State of Indiana v. Chase R. Downey, 10A01-1310-CR-432.

The majority also accepted the state’s alternative argument that Downey’s request for return of the money was moot because the state has transferred it to the feds. “While it may seem bothersome that the State may divest itself of the funds by transferring them to someone other than the defendant and now argue that the issue is moot, we must recognize that the federal government is a separate governmental entity and is not a party to this action. As such, we conclude that Downey’s request for the funds is moot as the State cannot produce the funds that it does not possess,” Bradford wrote.

Judge Margret Robb picked apart all of the majority’s holdings and pointed out that while Downey was charged in one court, the motion and proposed order were assigned to a different court and signed by a judge in a third court.
    
At the time Downey was charged in 2011, Clark County had one Circuit Court and three Superior courts. The General Assembly reorganized the system into four Circuit courts in 2012.

“Division One granted Downey’s motion for release of property and also granted his subsequent motion to compel release of property. At that time, neither Downey nor Division One had any knowledge of the transfer order that had been issued over a year before. In April of 2013, Downey filed a motion for rule to show cause because the State had not complied with Division One’s orders regarding the funds. It was not until shortly before a hearing on that motion in June of 2013 that Downey’s defense counsel, with the aid of the deputy prosecuting attorney, was able to track down the transfer order and learn that the funds had been transferred to the federal government pursuant to an order issued nearly two years earlier,” Robb wrote.

“I do not believe Division One abused its discretion in setting aside the order of Division Three,” she wrote. “If one court cannot control the processes of any other court of equal jurisdiction, then neither the (former) Superior Three court nor the (former) Superior One judge should have been issuing orders affecting a Circuit Court case.

“Likewise,” she wrote, “I do not agree with the majority that Downey’s request is moot. The money still exists even if it is no longer in the State’s immediate possession. That the State may need to recover it from the federal government or take other action to provide the relief the court ordered does not make this issue moot.”
 

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  • Looking forward to new legislation
    I am looking forward to Congress considering the bill submitted by Rand Paul that would restrict these asset forfeitures.

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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