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Court orders new arson trial

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The Indiana Court of Appeals ordered a new trial for a man convicted of arson because the trial court erred in letting the state amend the charging information after it had read the original charges to the jury.

David L. Gibbs v. State of Indiana, No. 49A02-1010-CR-1074, presented an issue of first impressions regarding when exactly a jury trial has "commenced" for purposes of amending charging information pursuant to Indiana Code 35-34-1-5(b). David Gibbs appealed his conviction of Class B felony arson, in which the trial court allowed the state to make a substantive amendment to the charging information after voir dire.

Gibbs was charged with three counts of Class B felony arson of a multi-family residence, with two of the charges specifically naming Gibbs' neighbors as having their residences damaged. He allegedly started the fire in his own apartment. The other charge named a business that had its property damaged. The state made amendments to two of the counts before the trial started, and read the amended charges to the jury during voir dire. Then, the state moved to amend the information to omit the neighbors' names. Gibbs objected, but the state allowed it.

The appellate judges found the state's amendments to Gibbs' charging information were substantive because as Gibbs had argued in his objection, he planned to argue he wasn't guilty of the charges because the fire did not actually cause damage to the two neighbors' apartments.

They looked to other jurisdictions to find it is a widely accepted rule that a jury trial begins with voir dire, so since Gibbs' trial had commenced with voir dire, allowing the estate to make substantive amendments to his information after that point was an error, wrote Judge Patricia Riley.

Gibbs also challenged the determination that he was competent to stand trial. He requested a psychiatric examination, in which two psychologists examined him. He was found not competent to stand trial and committed for competency restoration services. Months later, the trial court realized it didn't properly follow I.C. 35-36-3-1, which requires an examination by a psychiatrist as well, and appointed one to examine him. The psychiatrist was unable to personally evaluate Gibbs because he was uncooperative.

He was later found to be restored to competency, and the trial court denied Gibbs' motion for psychiatric examination to determine his competency.

Although the trial court erred by not originally having a psychiatrist examine him before his competency hearing, it was a harmless error because the trial court did not declare him competent to stand trial as a result of the error.

The judges vacated Gibbs' arson conviction and remanded for a new trial.  
 

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  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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