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. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  2. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  3. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  4. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  5. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

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