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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

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