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COA: Judge should have recused himself

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The Indiana Court of Appeals agreed with a defendant that he received ineffective assistance of trial counsel because his attorney should have filed a motion for change of judge. The sentencing judge had worked as a prosecutor in the early stages of the defendant’s case 10 years earlier.

In Paul L. Patterson v. State of Indiana, No. 09A02-0909-CR-849, Paul Patterson was arrested for selling cocaine in 1997 and charged with Class B felony dealing in cocaine. Judge Leo Burns, then a Cass County deputy prosecutor, signed the information charging Patterson and participated in the probable cause hearing. He didn’t participate any more in Patterson’s case. Just after a different prosecutor took over the case, Jay Hirschauer was appointed to represent Patterson. Patterson entered a guilty plea, but fled before sentencing. He was arrested in 2009 in Illinois.

When he appeared in Indiana, Judge Burns had become the judge of Cass Circuit Court. The state brought it to the judge’s attention that he had worked on the case years earlier, but he didn’t think it required his recusal. Without any objection from Patterson, the judge sentenced him to 10 years in prison.

Even though Hirschauer didn’t start on Patterson’s case until after Judge Burns stopped working on it, the judge’s name appeared numerous times in the record, wrote Judge Margret Robb. And since Judge Burns hadn’t recused himself for his previous involvement in the case, as is required by Judicial Conduct Canon 2.11, Hirschauer should have filed the motion for a change of judge. Judge Burns would have then been obligated to remove himself from the case. Patterson was prejudiced because he was denied his right to have an impartial judge preside over his case.

The appellate court remanded to have the case assigned to a different judge. That judge may reject Patterson’s plea agreement and set the case for trial if he or she deems it appropriate.
 
 

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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