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Death penalty foe Foster pumps up federal defenders

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“I have the best job in Indianapolis. I love this job.”

Monica Foster is talking about the position she’s held since Sept. 1 – executive director of Indiana Federal Community Defenders Inc. Renown for her successful defense of capital cases and her outspoken animus toward the death penalty, she says her new role leading a team of defenders in the federal courts is a natural progression.

Foster is in charge of an office of about 15, including six attorneys, responsible for court-appointed defense work for people charged in the U.S. District Court for the Southern District of Indiana, based in Indianapolis.

il-Monica_Foster02-15col.jpg Monica Foster has taken over as executive director of Indiana Federal Community Defenders Inc. in the Southern District. She replaced Bill Marsh, who retired after 17 years as the sole leader of the agency he founded.(IL Photo/ Perry Reichanadter)

“In some ways this is a continuation of a lifelong pursuit of indigent defense,” she says. “Turns out I liked doing the administrative stuff, too.”

That includes cajoling the federal court system to open its pocketbook – another skill she finds in common with her work as a public defender.

“I love playing the angles. The federal government has got formulas for everything,” she says of her office’s funding. So, she’s angling to put more cases on the books to bulk up the bottom line.

Case in point: Foster successfully reopened every crack cocaine sentence in the district in light of the Fair Sentencing Act of 2010, which she says hadn’t been done prior.

The law aims to correct disparities in sentencing that gave harsher prison terms for convictions of rock cocaine offenses versus convictions of crimes involving powder cocaine. The U.S. Supreme Court in June further ruled that the law also applied to those who were convicted before the law was passed but who were sentenced afterward.

Foster’s lobbying succeeded, and as a result, she leveraged funds for a new attorney and realigned the responsibilities of another position in hopes of further widening the office’s services.

“I want all of those cases out of here in six months,” she says of the crack cocaine cases.

Foster inherited an agency that since its founding 17 years ago had been run exclusively by Bill Marsh, who retired this summer.

“I believe I’ve got the best staff in Indianapolis,” Foster says. “I would put my staff of lawyers up against any firm in town.” Staff attorneys are Gwen Beitz, Joe Cleary, Bill Dazey, Mark Donahoe, Juval Scott and Sara Varner.

IFCD attorneys will be working some high-profile cases soon, including the prosecution of 42 members of the Outlaws Motorcycle Club of Indianapolis on drug, extortion and other charges; and the prosecution of two Westville Correctional Facility inmates accused of running a prison methamphetamine and heroin smuggling ring.

IFCD board president Mark Inman has known Foster since they both were students at Indiana University Robert H. McKinney School of Law in the early 1980s, and he says she rose to the top of a qualified group of candidates.

“We were fortunate with what we had in front of us, but Monica stood out because of her experience, and she had some very good ideas about what to do with the office,” Inman says.

Among those ideas: Doing habeas work for the 58 inmates on federal death row in Terre Haute, which lies within the Southern District’s jurisdiction. It’s another angle for Foster. “I think it’s not right that our office has not had a presence in those cases,” she says.

She argues those on federal death row received unequal defenses in various federal courts around the country, and there are strong arguments to be made – including economic ones – that appellate federal death row work should be handled, with the court’s consent, in her office.

Inman says Foster has always shown an ability to make big things happen.

“Both of us were interested in doing criminal defense work from the get-go, and she’s always been able to speak her mind and voice her opinion, and yet she’s always been very collegial and able to get along with people,” Inman says.

Killing the death penalty

“Oh, we killed the death penalty in Indiana.”

Foster is talking about a concerted effort by defense attorneys that led to the adoption of Criminal Procedure Rule 24 in 1992 and subsequent changes that raised the requirements for death penalty defense as well as the cost of trying those cases.

She acknowledges her hyperbole – the death penalty is still on the books – but she says it will be rare when a prosecutor makes the call to try a capital case. “At the end of the day, we wanted to save people more than they wanted to kill them,” she says.

“She has a stellar reputation as someone that not only knows what she’s doing, but cares about what she’s doing,” says Indianapolis private practice criminal defense attorney Ross G. Thomas, who represented clients on a multi-defendant case with Foster in federal court years ago.

Lewis Wagner LLP founding partner Robert F. Wagner has known Foster since she was a student. “My wife and I kind of adopted her,” he says.

“I recognized early on when working with Monica that she was just very, very bright, and I see a lot of lawyers,” Wagner says. “She was just one of those individuals that stood out as having an unbelievably sharp talent in recognizing issues and having the courage to work on complex and oft-times problematical cases.

“Death-penalty cases – looking back at my legal career and knowing people who have worked in the criminal end – I think they are the toughest cases anyone can ever take on,” he says. “It takes a lot of courage to look the lion in the eye, if you will, and stand up to public and private scrutiny, and hold your head up.”

Foster’s husband, defense attorney Robert Hammerle, says that because of the emotional difficulties of practicing criminal defense, the couple had an arrangement when they practiced together – they drove separate cars to the office.

“She’s an acerbically funny woman and she can find something funny in the nastiest set of legal facts,” Hammerle says. “But there’s also the downside where you wind up in some difficult moment, and you drive home by yourself, and you get over it.”

Wagner acknowledges a bit of surprise that Foster took her new position, despite what he calls a perfect fit. “She was just so damn good at what she did,” he says.

“People don’t know this, but she has a national reputation,” Wagner continues. “She travels off to different states and is considered a great lecturer. I’m from New England, and I know lawyers up there who know Monica Foster.”

U.S. Judge Jane Magnus-Stinson also was a McKinney classmate of the new IFCD executive director and says the kind of experience that Foster has leading and managing teams on death penalty cases will transfer well in her new capacity.

“I think Monica is way more than a one-trick pony,” Magnus-Stinson says. “I think that she’s really worked toward a position like this her whole career.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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