Shorter and not so sweet?

June 17, 2008
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Short and straight to the point. That describes a not-for-publication opinion from the Court of Appeals Monday, in Evan Erby v. State of Indiana, No. 18A02-0711-CR-977. Two sentences sum up this case, referring to an Indiana Supreme Court ruling last year about sentencing in a post-Blakely world. This time, Erby challenged a 10-year sentence for armed robbery, and the COA panel noted that the justices specifically rejected a similar argument in Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), in holding that trial courts no longer have to “properly weigh” aggravators and mitigators in sentencing.

While this may not be unique in that it’s the shortest opinion ever, it’s the shortest we can recall seeing in awhile. Sure, it’s an NFP and isn’t citable or precedent-setting. Maybe this shortness also signals a trend we’ll be seeing more at our intermediate appellate court, where caseloads continue increasing to the tune of an expected 3,100-plus opinions by the end of the year – an average of about 2.2 opinions per judge per day. That means less time and less review for each case, though not necessarily less quality. While it may not be evident here, some could probably raise the quantity vs. quality argument when pondering the increasing workload. We have a story in our latest issue of Indiana Lawyer about how the COA focused in 2007 on improving efficiency in the wake of higher caseloads. Will this be used as ammunition in the case for a new sixth appellate panel, which has been discussed for some time and is being explored by an interim legislative study committee?

A recent post on the Carroll County Courts blog noted the consequences of budgetary problems and how a judge might feel without adequate staff. We wondered if this is how the Court of Appeals and other judges feel about their increasing caseloads. Take a look. (http://carrollcountycourts.blogspot.com/2008/06/what-happens-when-you-cant-keep-up.html)
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  • A fuller explanation of the reasons for the 1-page opinion is not hard to find. A recent opinion HIGHLY critical of the same public defender in another appeal shows the reason. See State v. Matthew Johnson, http://www.in.gov/judiciary/opinions/pdf/05290802mgr.pdf.
    Although the opinions contains other critical comments as well, the following footnote best illustrates why the court gave such short shrift to this PD\'s argument in the 1 paragraph opinion.

    5. We note that this court has found it necessary on several previous occasions to remind Johnson’s counsel that arguments must be supported by cogent argument and applicable authority. See Tamsett v. State, 879 N.E.2d 1231, 2008 WL 204698 (Ind. Ct. App. 2008) (unpublished opinion) (noting that counsel cited an outdated version of Rule 7(B)); Gray v. State, 876 N.E.2d 387, 2007 WL 3244230 (Ind. Ct. App. 2007) (unpublished opinion) (noting that counsel cited an outdated version of Rule 7(B), and “caution[ing] counsel to conduct a more thorough legal research process in the future”); Stanley v. State, 874 N.E.2d 650, 2007 WL 2916451 (Ind. Ct. App. 2007) (unpublished opinion) (holding issue waived based on failure to make a cogent argument or cite to relevant authority); Ruble v. State, 873 N.E.2d 202, 2007 WL 2473232 (Ind. Ct. App. 2007) (unpublished opinion) (indicating that counsel “misstates the issue,” and cites authorities that are “either obsolete, inapplicable, repealed or replaced by other authorities,” and declining to address the merits based on counsel’s failure to make cogent argument); Sharp v. State, 835 N.E.2d 1079, 1084 n.8 (Ind. Ct. App. 2005) (holding argument waived based on failure to make cogent argument). We urge counsel to perform adequate research and put forth cogent arguments for his clients, who have a constitutional right to effective assistance of appellate counsel.

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  1. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  2. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  3. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  4. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

  5. Oh yes, lifetime tenure. The Founders gave that to the federal judges .... at that time no federal district courts existed .... so we are talking the Supreme Court justices only in context ....so that they could rule against traditional marriage and for the other pet projects of the sixties generation. Right. Hmmmm, but I must admit, there is something from that time frame that seems to recommend itself in this context ..... on yes, from a document the Founders penned in 1776: " He has refused his Assent to Laws, the most wholesome and necessary for the public good."

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