ILNews

Court criticizes appellate attorney for not citing material

Michael W. Hoskins
January 1, 2007
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The Indiana Court of Appeals has affirmed a lower court's decision that a man convicted of felony forgery must submit a DNA sample.

But that's only part of today's seven-page decision in James Keeney v. State of Indiana, No. 21A01-0611-CR-495, which goes on to admonish an appellate attorney who filed a brief with uncited material.

In this case, Keeney challenged last year Fayette Circuit Judge Daniel Pflum's order, which said Keeney needed to submit a DNA sample after pleading guilty to forgery and receiving a four-year sentence. Some of that time was suspended and ordered for home detention, and Keeney objected to the order on grounds of a Untied States Supreme Court decision last year. The appeals court agreed with the state that the higher ruling isn't enough to overrule the state law and previous court decisions, and affirmed the sentence.

But the ruling didn't end there.

"Unfortunately, we must call attention to the fact that the appellate attorney for Keeney has filled her brief with uncited material," the court wrote.

"... The importance of proper attribution cannot be understated. While lawyers and judges regularly borrow reasoning from others, both ethics and the appellate rules require that the source be given credit. Nonetheless, Keeney's appellate attorney merely transplanted the [U.S. District Court of Massachusetts'] order into her brief as if it was her own work," the court continued.

The court wrote that the brief's entire "argument" section is a near-verbatim replication of a recent memorandum and order in a case that isn't cited or relied on in Keeney's appeal. The "inadequate" brief did not advance any argument or help Keeney's case, the court wrote.

"We confine our criticism here to an admonishment," the court wrote, noting that it had the authority to strike the brief, order the appellate attorney to receive no fee or return with interest any fee already received, refer the matter to the Indiana Supreme Court's Disciplinary Commission for investigation of potential rule violation, or to hold the attorney in contempt. "We choose, however, not to sanction Keeney's attorney beyond the reprimand within this opinion."

The attorney called out in the ruling is Sarah Nagy of Indianapolis

"If I made a mistake, all I can do is learn from it and try not to do it again," Nagy said this afternoon, noting she'd not yet read the opinion and was shocked to learn about the admonishment. "No one's perfect, and if we do something wrong, that's why we have judges, to help us learn from it."
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  1. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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