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COA judge issues 8-page criticism of trial court missteps

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The Indiana Court of Appeals has reversed a juvenile court’s order of restitution, stating the court failed to investigate the young man’s ability to pay, and that the damage amount could not be determined to be reasonable. Judge Melissa S. May agreed with the majority, but wrote an eight-page separate opinion stating that the trial court’s many errors – including the omission of key pieces of evidence – hampered the COA’s ability to perform its review of the case.

In J.H. v. State of Indiana, No. 49A02-1005-JV-560, the state dropped a criminal mischief allegation when the juvenile defendant pleaded guilty to unlawful residential entry. The teen had tried to enter a neighbor’s home without permission and, in doing so, had damaged the door.

The neighbor had presented two estimates for repair – a first estimate of $1,000 and a second for $1,117.65. The estimates were not submitted to the defense, did not show the cost of materials and labor, and were not entered into evidence. The defense challenged the validity of the estimates and requested a dispositional hearing to question the first contractor about his estimate, but he did not appear for the hearing. The appeals court held the juvenile court failed to recognize that it is the state’s burden to prove the validity of the estimates.

In her separate opinion, Judge May wrote about the lack of completeness of the record. In a footnote, she wrote about the missing repair estimates: “If something is purported to be ‘evidence’ to establish an amount being claimed for restitution, the party seeking to use it should ensure it can be provided to the court and opposing counsel. Counsel presumably could have found a copy machine.”

She said the clerk had obviously failed to provide the documents necessary for the counsels to prepare their briefs. She also questioned why the victim’s impact statement – which had been scanned into the court’s case management system – was not part of the record on appeal.

In summary, Judge May wrote, “While I concur with the majority’s result, our decision must be read in light of the procedural missteps by trial counsel, the clerk, the trial court, and appellate counsel, as I have noted herein. These issues are not unique to this case, and are troubling when liberties are at stake.”

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  1. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  2. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  3. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  4. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

  5. They ruled there is no absolute right to keep a license, whether it be for a lifetime or a short period of time. So with that being said, this state taught me at the age of 15 how to obtain that license. I am actually doing something that I was taught to do, I'm not breaking the law breaking the rules and according to the Interstate Compact the National Interstate Compact...driving while suspended is a minor offense. So, do with that what you will..Indiana sucks when it comes to the driving laws, they really and truly need to reevaluate their priorities and honestly put the good of the community first... I mean, what's more important the pedophile drug dealer or wasting time and money to keep us off the streets?

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