ILNews

COA finds fundamental error in juvenile case, again

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In a case identical to one it ruled on earlier this year, the Indiana Court of Appeals today found the state violated a juvenile’s right to counsel at her detention hearing.

Juvenile A.S. was detained in October 2008 on suspicion of battery. At her detention hearing the next day, no witnesses were sworn in and no evidence was heard. She and her mother signed a document that the trial court apparently treated as a waiver to a number of rights, including A.S.’s right to counsel. The magistrate never asked if A.S. wanted legal representation or counsel appointed, nor did the magistrate inform her of the burdens of proceeding pro se.

A.S. had been in trouble before and at that time, she and her mother signed the same waiver. In A.S. v. State, 923 N.E.2d 486, 488 (Ind. Ct. App. 2010), the appellate court ruled A.S.’s alleged waiver of counsel was invalid. She had moved for relief from judgment finding her to be delinquent because she had been adjudicated without counsel and without waiving her right to counsel.

The Court of Appeals found the latest waiver A.S. signed also didn’t comport with constitutional requirements. A.S. was appealing in the instant case that she was denied certain rights at her initial detention hearing, she shouldn’t have been adjudicated as a delinquent because her hearing didn’t take place within 60 days, and she wasn’t tried by a jury.

The state argued against the appellate court addressing the merits of the violation because A.S. didn’t raise the claim and it’s moot because she’s no longer detained.  

The Court of Appeals in A.S. v. State of Indiana, No. 10A01-0908-JV-423, ruled A.S.’s constitutional claim wasn’t waived due to fundamental error because she was not adequately informed of her right to counsel. The appellate judges decided to consider A.S.’s constitutional right because it reflects a question of great public importance and the issue is likely to recur. They found her initial detention was improper because the court didn’t get a constitutionally sufficient waiver of counsel from her and didn’t allow her to present evidence or confront witnesses.

The judges rejected her argument that her hearing didn’t happen within the required 60 days. Her hearing happened 90 days after she was initially detained. Every Saturday, Sunday, and holiday during that period should be excluded from calculation, which then puts A.S.’s hearing held within the 60-day period. In addition, A.S. did not have a right to trial by jury.
 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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