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COA tosses in absentia conviction of Army private

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A 20-year-old U.S. Army private had his conviction for underage drinking overturned because Hendricks Superior Court denied his motion for a continuance and held the trial while he was deployed in Afghanistan.

William Calvert was charged with illegal consumption of alcohol by a minor, a Class C misdemeanor, after the Hendricks County Sheriff’s Department found him and his friends drinking at a Plainfield residence.

The trial date was rescheduled several times both by the court acting on its own and by the defense attorney. One day before the hearing was set to begin, Calvert’s lawyer again notified the court that the defendant was serving overseas and filed another motion for a continuance.

The prosecution objected, noting the several previous continuances were creating an undue hardship for the state’s witness. The trial court denied the defense motion and proceeded to try Calvert in absentia. Subsequently, Calvert was found guilty and sentenced to 60 days and 58 days suspended.

Calvert appealed, arguing the trial court erred when it tried him in absentia.

The Indiana Court of Appeals agreed and reversed the conviction in William T. Calvert v. State of Indiana, 32A01-1312-CR-535.
 
“Here, Calvert’s deployment to Afghanistan justified a continuance of his trial,” Judge Edward Najam wrote for the court. “The State of Indiana cannot compel a defendant’s presence for a judicial proceeding while, at the same time, the United States compels his absence for active duty in military service overseas.”

The Court of Appeals was not persuaded by the state’s argument against the continuance because of the inconvenience the delay would cause for its witness. The COA noted any hardship was outweighed by the prejudice suffered by Calvert when he was denied the opportunity to be present at his trial.

 

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  • Diversify!
    Send Indiana another thousand Central America illegals ... we already have the legal system to which they are well accustomed. A banana republic without home grown bananas.
  • Deputy Prosecutor James Bryan Should Be Reported to the Disciplinary Commission
    This is quite heinous, from the COA opinion: ". . . the prosecuting attorney misrepresented to the trial court the timing of Calvert’s enlistment in the Army and his motion to continue the June trial, both of which facts were readily ascertainable." It appears Bryan actually told the court that the kid joined the Army after he was arrested , suggesting he did so to avoid prosecution. In fact, the private was an active duty soldier on leave at the time of his arrest. What a scumbag prosecutor.
  • Agreed
    To clarify, I agree with John Smith's comment: "The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW"
  • Agreed
    Wholeheartedly agree with this comment.
  • Legal preferences
    Welcome to Hendricks County where local and state statutes (especially Indiana Class C misdemeanors) are given a higher consideration than Federal statues and active duty military call-ups.
  • prosecutorial foolishness
    The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

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    1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

    2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

    3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

    4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

    5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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