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Court split on ineffective trial counsel

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A panel of Indiana Court of Appeals judges disagreed that an attorney was ineffective because the majority found the attorney told her client he "should" win the case whereas one judge pointed out in the record the attorney admitted to telling the client he "would" win.

"Based upon the record, I conclude that Rowe demonstrated that his trial counsel's ineffective performance affected the outcome of the plea process and that there is a reasonable probability that, but for trial counsel's errors, the result of the proceeding would have been different," wrote Judge Elaine Brown in her dissent in Terry Rowe, Jr. v. State of Indiana, No. 32A04-0904-PC-186.

Terry Rowe was charged with two counts of Class B felony dealing in cocaine and one count of Class A felony dealing in cocaine after he purchased drugs from a confidential informant. There were police video and audio tapes of the controlled buys. After the confidential informant died, the state offered Rowe a plea agreement. On the advice of his counsel, he declined. He was convicted in a bench trial and given a longer sentence than the plea agreement offered.

His attorney - who was just out of law school and hadn't tried a Class A felony case - told Rowe she thought it would be difficult for the state to prove its case without the informant. According to the record, she testified she told Rowe that he "should" win the case and that he "would" win the case.

The majority agreed with post-conviction court's denial of Rowe's petition for relief because there's evidence to support the post-conviction court's finding the attorney's performance was reasonable, wrote Judge Terry Crone. The judge noted that different interpretations of the record are possible, but the majority couldn't say the post-conviction court's findings and conclusions were clearly erroneous.

Judge Brown wrote Rowe's trial counsel didn't adequately investigate his case and told him that he'd win. In addition to the record showing the attorney testifying she said Rowe would win the case, she also admitted she didn't depose any members of the Drug Task Force before telling Rowe he'd be successful at trial.

Rowe testified he rejected the agreement based on his attorney's advice and if he knew he could have been convicted based on the evidence he would have accepted the plea agreement.

The appellate court also addressed the state's argument that to establish prejudice, Rowe must show that he would have accepted the plea agreement had he known there was a possibility of conviction without the confidential informant, and the trial court would have accepted the plea agreement. Citing Lessig v. State, 489 N.E.2d 978, 983 (Ind. Ct. App. 1986), the Court of Appeals, without addressing the merits as applied to the instant case, held the correct reading of Lessig is that a defendant must put forth evidence that the trial court is legally permitted to accept his plea agreement.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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