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High court vacates transfer

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The Indiana Supreme Court vacated transfer yesterday in a case in which a defendant appealed his convictions of voluntary manslaughter, carrying a handgun without a license, and finding that he was a habitual offender.

The high court voted 3-2 to vacate transfer to Scottie Adams v. State, No. 71S03-0809-CR-514, with Justice Theodore Boehm writing a five-page dissent with which Justice Frank Sullivan concurred.

The Indiana Court of Appeals ruled in a July 25, 2008, opinion that Adams failed to demonstrate that witness Christopher White's refusal to testify had a prejudicial impact on the jury to the extent that a mistrial was warranted. White spontaneously said while on the stand that he was afraid to testify because he was scared for his family and his life. White had been jumped while he was in jail over the case, but didn't show any evidence that Adams was behind it. The trial court told the jury not to consider any statements made by White about his not wanting to testify.

On appeal, Adams also argued the trial court erred in instructing the jury on the offense of voluntary manslaughter when he was originally charged with murder and that since the state didn't amend the information to include the voluntary manslaughter charge, the instructions shouldn't have been given. The Court of Appeals found no authority suggesting a lesser-included offense instruction can't be given in instances where the defendant decides not to present any evidence at trial.

The Supreme Court granted transfer Sept. 23, 2008, and held arguments Dec. 11, 2008.

Justice Boehm's dissent on the denial of transfer hinges on an important issue in the case that needs to be addressed - whether the trial court's admonition satisfactorily addressed the prejudicial impact of the witness' testimony that Adams had threatened him, or whether Adams was entitled to a mistrial.

In the instant case, the trial court asked the jury to ignore the witness' statements but didn't explain why, which left jurors to draw the inference that Adams was behind the threats, wrote Justice Boehm.

"I write separately to express my view that once it was clear no evidence associated Adams with White's concerns, if no mistrial was ordered, the trial court should have at least given more than a generic and conclusory instruction to disregard White's testimony," he wrote.

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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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