ILNews

Drug court lawsuits in the works

Dave Stafford
February 12, 2014
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Destiny Hoffman furnished a diluted drug screen and was sanctioned with a 48-hour stay in the Clark County Jail. She wasn’t freed for another five months.

Jason O’Connor was given a 30-day drug court sanction on June 20 of last year, but he lingered behind bars in Jeffersonville until Jan. 24 – more than 180 days longer.

clifford-nathan.jpg Clifford

Nathan S. Clifford also was detained months longer than he should have been.

They’re not the only ones.

“I would anticipate we’re going to find more of these,” said Nathan Masingo, a public defender who represented Hoffman until she pleaded guilty to a Class D felony possession of a controlled substance charge last year and was diverted to drug court. As is customary after someone enters drug court, Masingo then withdrew from the case. He knew nothing of Hoffman’s protracted detention.

“I don’t believe you can waive your right to due process” in instances resulting in loss of liberty, Masingo said. “It appears the court believes (drug court defendants’) due-process rights have been waived and they can go forward and incarcerate people without an attorney present and without due process.”

Hoffman, O’Connor, Clifford and others claim their rights were violated when they were jailed for drug court violations without a hearing and/or without representation of a lawyer. The three were released in late January when a deputy prosecutor reviewing files discovered they had been in jail for months, then rushed to the courthouse to petition for their release.

judge-order-15col.jpg The notice that kept Destiny Hoffman jailed until further order of the court. (Submitted photo)

The wrongful detentions are just one problem alleged against the Clark County Drug Treatment Court overseen by Circuit No. 2 Judge Jerry Jacobi.

Louisville attorney Michael Augustus is representing Hoffman, O’Connor and Clifford, as well as Amy Bennett, Josh Foley and Ashleigh Hendricks Santiago, three more drug court participants who he said intend to sue over alleged civil-rights abuses out of Jacobi’s drug court. Augustus expects additional plaintiffs.

“The common thread is that they were incarcerated without the full hearing and due-process rights afforded to them,” Augustus said.

“I’d like to say I’m shocked,” he said, “but I wasn’t. It was so pervasive and happened with so many individuals that it couldn’t be an isolated error or someone falling through the cracks. … It just appears to me there wasn’t consideration of these people’s rights.”

Jacobi did not respond to messages seeking comment.

Along with the threat of federal civil rights litigation, which Augustus said might qualify as a class action, criminal charges could arise from alleged drug court abuses.

On Feb. 4, Clark County Prosecutor Steven D. Stewart requested appointment of a special prosecutor “to avoid the appearance of impropriety during any further investigation and prosecution of this case, if any.”

Stewart petitioned Clark Circuit No. 3 Judge Joseph Weber to make the appointment. “Indiana State Police … opened an investigation relating to allegations of abuses by officers and employees of the Clark Circuit Court No. 2 Drug Court.” Weber has appointed Jefferson County Prosecutor Chad Lewis to determine if criminal charges are warranted.

Indiana State Police public information officer Sgt. Jerry Goodin of District 45 in Sellersburg said he couldn’t comment on the investigation.

In addition to improper detentions, current and former drug court staff members have been accused of unauthorized arrests and searches of drug court participants. Jacobi recently fired drug court director Susan Knoebel and suspended a drug court staff member, both of whom were accused of carrying out the arrests and searches. Knoebel told the News and Tribune of Jeffersonville she was acting on Jacobi’s orders. She has retained an attorney for a potential civil case over her firing.

Indiana Supreme Court spokeswoman Kathryn Dolan said the Judicial Qualifications Commission, which has disciplinary authority over judges, has not filed charges against Jacobi. Dolan could not confirm or deny the existence of complaints regarding Jacobi or the court because of the confidential nature of such investigations.

Attorneys familiar with the county’s drug court procedures who spoke on condition of anonymity described a court in which defendants were frequently jailed for extended periods of time without a hearing or an attorney present. Some attorneys said they feared problems were so significant that they could lead to the drug court’s demise.

Often, attorneys said, Jacobi imposed sanctions during group court settings, or ordered drug court participants held pending placement in a treatment facility. When no such placements were available, they remained in jail.

That was the case for O’Connor, who was terminated from a rehab program, after which Jacobi sanctioned him to 30 days in jail on June 20, 2013, according to O’Connor’s case record. But in the same entry ordering the sanction, the record shows another order from Jacobi: “Continue to hold in CCJ (Clark County Jail) until further order from the court.”

No further entries appear on O’Connor’s case record until Jan. 24, 2014, after the deputy prosecutor moved for a hearing and O’Connor was released.

Jacobi also ordered Hoffman held until further order after he imposed a 48-hour sanction in August. Hoffman also was released in late January.

Augustus said Hoffman and O’Connor were in a sort of legal limbo. He said they spoke up to question their detentions, but with no defender, “everything fell on deaf ears.”

hoffman-destiny.jpg Hoffman

In several cases, chronological case summary minute entries were made several days after orders were issued or actions were taken. Attorneys said in some cases drug court participants appear to have been detained without orders from the court appearing on case records.

Augustus said attention focused on the drug court after a Jeffersonville resident expressed alarm to a local official when she witnessed drug court staff members handcuffing and searching a program participant.

That’s what happened to Amy Bennett, Augustus said. She arrived at her home where drug court staff members stopped her and placed her in handcuffs, he said.

“It’s definitely systemic,” Augustus said. He’s unsure whether court staff members were acting on orders or were given too much leeway and too little supervision. “If, in fact, they were given orders to do what they did, it still doesn’t for me explain why they did it.”

Masingo, the public defender, said the court has a poor reputation in the local legal community.

“Anyone who goes in that court would have told you there were problems coming,” he said. “I didn’t know it was to this extent.”•

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  • Mental Health Court doing the same thing
    My daughter has Autism and after she told the judge she did not understand what her rights where and signing a plea bargain with her time suspended they waived her into mental health court. She has been sitting in the jail for about 6 months now and was told she gets NO lawyer. All this after her plea bargain said she was going to be released. When I call the court to ask when she is going to be released they get upset with me and tell me when they find appropriate housing. Whats wrong with my home? They have only made effort to contact one place who by the way has accepted her and is just waiting for the courts to do something. I assume since she is disabled she no longer has the right to due process, nor does she have any other constitutional rights? The man who kidnapped her and got her hooked on drugs was already released, even though he has an extensive criminal history. This is my daughters first time in any trouble, and though she does have some part in her actions the system has failed her.
  • wrongful incarceration
    Less than an hour after signing up for drug court, I was given a seven day sanction for a dirty urine. I had not even found out my schedule for observation. I never saw the woman who was supposedly giving me this info. I neither saw a judge or a lawyer. I was not allowed to speak for myself and was never advised that a procedure like this could possibly take place. I was brought back to court the following day and released. I was told "they made a mistake". I would advise anyone to consider alternatives to this program

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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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