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Defense attorneys lose appeal for compensation

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Two private defense lawyers in Marion County failed to convince the Indiana Court of Appeals that they should be retroactively appointed by the Marion County Public Defender Agency and compensated for their legal work on a case that has an intricate maze of attorney representation over the course of five years.

The court’s ruling came Friday in Timothy-Patrick Treacy v. State, No. 49A02-1010-CR-1254, an attorney fee-focused continuation of a criminal appeal that a separate appellate panel had decided in a not-for-publication ruling in September 2010.

In the underlying case that evolved in Marion Superior Judge Rueben Hill’s court, Timothy-Patrick Treacy was charged in August 2006 with two misdemeanor and two felony drunk driving counts and a misdemeanor public intoxication charge. But multiple delays involving attorney representation and court congestion pushed his jury trial back three years, and Treacy was eventually convicted on all counts in August 2009. He received a sentence that was mostly suspended and resulted in 100 days in jail and probation.

Treacy challenged the convictions on grounds that he didn’t receive a trial within one year as required by Indiana Criminal Rule 4(C), but the appellate court in September 2010 affirmed the lower court’s findings because the delays were mostly caused by the defendant.

But the lawyering continued, as private attorneys Paul Ogden and Patrick Stern who’d represented Treacy toward the end of those four years argued they should be retroactively appointed as public defenders and compensated for their work. The roadmap to Treacy’s representation is scattered through two appellate records, from this most recent attorney-fees ruling to the original Court of Appeals’ NFP decision upholding Treacy’s criminal convictions and sentence.

In the four years from when the case began to when it was completed in Marion Superior Court, the defendant had five lawyers representing him at the trial level along with multiple stints of pro se representation – the list includes two private attorneys whom Treacy fired, a public defender he threatened to file a lawsuit against, and two private attorneys who were later ordered to stay on the case or represent him intermittently because of counsel indecision or delays.

James Recker was hired and then fired between August 2006 and June 2007, and Treacy wasn’t sure about hiring another lawyer or proceeding pro se. The judge appointed Marion County public defender A.J. Reiber until the defendant decided how he wanted to proceed.

Private attorney Jeffrey McQuary appeared for a September 2007 hearing, but within four months Treacy fired him. Treacy wanted to proceed pro se, and told the court that Reiber couldn’t be re-appointed because he was threatening to sue the public defender on claims he owed Treacy $3.5 million for violating his rights.

After more delays, private defense attorney Patrick Stern represented Treacy at a January 2009 hearing after the defendant’s mother retained him for $1,000.

Several more disagreements surfaced between Treacy and his counsel, with Stern noting more than once that he’d been terminated, but the defendant indicated that was not the case and the court ordered Stern to remain as counsel on the case. At one point in July 2009, after Treacy again said he’d fired Stern, Senior Judge Richard Sallee ordered Paul Ogden, who was sitting in the courtroom gallery at the time, to assist in reviewing some tapes because he was representing Treacy in an unconnected civil matter.

About three years after the man had first been charged, the jury trial commenced and Treacy was convicted and sentenced within a month. Both Ogden and Stern were representing Treacy at the time, the court records show.

Within a month of Treacy’s sentencing, Ogden and Stern both filed petitions ordering the county to pay for their costs, which were $3,765 and $3,500 respectively. Judge Hill denied the motions, and the Indiana Court of Appeals has now dismissed the appeal – mostly because the majority found that Ogden and Stern weren’t parties to the case and Treacy hadn’t requested public appointment of the two lawyers.

Finding that it didn’t have subject matter jurisdiction, the appellate court described this as an attempt to circumvent trial and appellate rules to litigate a compensation dispute with the MCPDA on appeal rather than through a separate lawsuit.

“Although this appeal is styled as a challenge to the trial court’s denial of Treacy’s request for counsel at public expense, no such denial is actually claimed,” Judge Cale Bradford wrote. “This appeal is, in fact, an appeal prosecuted by Ogden and Stern on their own behalf in an attempt to have the MCPDA reimburse them for representing Treacy.”

Judge John Baker concurred, but Judge Melissa May disagreed and found that Ogden and Stern were proper parties and they should address the merits. She would affirm the attorney fee denials because Treacy had not raised this argument on appeal and waived it, but also because he’d been given the chance for a public defender.

“If a defendant wishes representation at public expense, he must accept the public defender appointed by the trial court; to permit any other system would undermine the public defender system created by our legislature and increase the cost of providing defense for all indigent defendants.”

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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