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‘Illegal alien’ remark leads to attorney’s suspension; case involves embattled judge

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Representing a father in a child visitation dispute, a Martinsville lawyer’s letter to opposing counsel alleging the mother was an illegal alien resulted in a 30-day suspension.

The judge who served as the Disciplinary Commission’s hearing officer in attorney Joseph B. Barker’s case separately is facing a suspension request for charges alleging she, too, made unprofessional remarks, among other things. One of the 45 counts against that judge concerns a charge that was she almost a year late with findings in this disciplinary case.

The Indiana Supreme Court on Friday posted an order suspending Barker for 30 days. According to the order, Barker sent the attorney and presiding judge in a divorce case a letter in 2009 that read:

“[Father] told me this week that he has only seen his baby … one day all year. Your client doesn't understand what laws and court orders mean I guess. Probably because she's an illegal alien to begin with.

“I want you to repeat to her in whatever language she understands that we'll be demanding she be put in JAIL for contempt of court.

“I'm filing a copy of this letter with the Court to document the seriousness of this problem.”

Barker violated Rules of Professional Conduct 4.4(a) and 8.4(g), the court ruled.

“Respondent argues that it was legitimate advocacy to connect Mother’s alleged violation of immigration laws with her violation of Father’s court-ordered visitation rights. However, regardless of the frustration Respondent might have felt in the circumstances, we conclude that accusing Mother of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantial purpose other than to embarrass or burden Mother,” Chief Justice Brent Dickson wrote for the court.

The order cited Barker’s lack of disciplinary history as a mitigating factor, but “the Respondent’s misconduct is aggravated by the fact that he has no insight into his misconduct, he has not apologized to Mother, and he has substantial experience in the practice of law. Under these circumstances, the Court concludes that a period of suspension is required.”

Barker’s suspension is effective Oct. 14, and he will be automatically reinstated. Costs of the proceeding are assessed to him.

The verified complaint against Barker was filed in August 2009, and Marion Superior Judge Kimberly Brown was appointed hearing officer a month later. Brown’s findings and recommendations were filed in June of this year.

Brown is the subject of a 45-count complaint from the Judicial Qualifications Commission replete with allegations of conduct that she treated public defenders, clerks’ office staff and some private attorneys in “a rude and discourteous manner and created “a hostile environment for attorneys, court staff, clerks, and other court officials.” Among the most serious charges facing Brown are accusations she wrongly jailed at least nine defendants for 1 to 22 days, among other things.

But one of the counts concerns Barker’s case, noting that disciplinary counsel asked Brown in December 2012 when findings might be submitted to the court. Barker’s hearing had taken place more than seven months earlier.

“On April 3, 2013, another attorney employed with the Disciplinary Commission requested a status conference on the matter, which (Brown) never attended,” according to the charges against her.

An attorney discipline hearing officer is required by rule to file a report with findings and conclusions within 30 days of the conclusion of the hearing, according to the charges against Brown. She “did not issue findings until June 7, 2013, more than thirteen (13) months after the hearing was conducted,” the charges say.





 

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  • yes other states do this too
    yes bryan this is a trend in law. and not only Indiana case, but as the issue of this not being in the course of representation, also look at in matter of Kelley 925 ne2d 1279 about calling somebody gay. OOPS I called somebody gay (which supposedly is not even pejorative anymore) now I may get a reprimand. Another case of excessive rule overreach. I hvent read in matter of thomsen, 837- 1011, but that's about racial bias supposedly. Also there is a Pennsylvania case where a pigeon shooter called a woman animal rights advocate a vulgar name and supposedly that was a basis for 8.4 spanking too. IMPURE THOUGHTS BRYAN! here is a LTE I found online following an editorial about this case. the LTE presents the feminist "POV." http://www.sharkonline.org/index.php/pigeon-shoots/53-pennsylvania/445-lawyer-s-vulgar-slur-towards-women-is-unworthy-of-the-profession
  • John, you meant this case
    In re Campiti , 937 N.E.2d 340 (Ind. 2009) (Lawyer was given a public reprimand for violation of Rule 8.4(g) [national origin and socioeconomic status] after making repeated disparaging remarks that a mother was not a U.S. citizen and was receiving legal services at no charge.)
  • Only in Indiana?
    Where else but Indiana could a private letter between attorneys using that term cause an attorney (not large law firm connected, I would bet) to be benched, the goal no income, for a month? Anyone know of any other state that treats its "officers of the court" in such a manner?
  • incomprehensible
    Maybe its just me but how is this not legit advocacy. Illegal aliens are in a state of perpetual lawbreaking by their presence here. They can be deported. Both their lawbreaking and their risk of deportation have profound effects on personal choices. I hear laments about this all the time on NPR about how much they suffer because of our horrible evil "laws." And yet lawyers are not supposed to take notice of the real impact of this lawbreaker status for their clients best interests? That's not "legit advocacy" even though it's relevant to all the core legal issues a family lawyer has to often handle, and a major factor in all choices that a parent is making? On the one hand we are supposed to be compassionate to illegal aliens and be mindful of their quandry, and then on the other hand we are supposed to ignore their quandary when it is a factor in other lawbreaking behavior. We are supposed to ignore matters of LAW which are obviously relevant and germane even though we are LAWYERS and it is in our clients' interests, because why? Because the CAPOS SAY SO THATS WHY. Because they don't like certain laws, that's why. They think the poor unwashed masses of anti-immigration protesters and congressman are bigots, and they're above it, and they have the power to dictate lawyer speech so they are going to dictate it and use the sledgehammer of 8.4 to scare people. Wow. PS good reporting about the nexus to the Baker problem. PPS Gee this is the kind of thing that gets attention when a crook like Conour gets the kid glove treatment. Wow wow wow.
  • dangerous trend
    it seems that some of our speech-cops in black no longer think they have any difficulties in determining what is "legitimate advocacy" I read a fair discussion in don lundberg's discussion in res gestae june 2010 about this trend. he weighs the impelmentation of the rule which goes back to 2002. Unfortunately he concludes the article with approval of the overbroad use of 8.4g by comparing it to "disapproval by professional peers." Well guess what, the Supremes are not our peers they are ABOVE us. They are the third branch of Indiana government taking our license away because they didn't like the CONTENT of our speech. A lot of good the private citizens who are non-lawyers will have trying to protect their free speech rights in court, if all the lawyers are already castrated from dissent ab-initio. btw in re campiti is 905 ne2d 408 (2009) some of you complacent lawyers out there who never beefed about this or said a word to anybody before, ought to wake up because sooner or later it will be your ox that gets gored.
  • so much for free speech.
    Its another blatant overuse of 8.4 which is wide enough to drive a truck through it. What's next, suspensions for lawyers who fail to use "gender-neutral" English? Preposterous. But-- I'll keep my comments anonymous, since I know that they speech-commissars will come with punishment for me too if they know that I've criticized them. So much for that crazy first amendment thingee! The justices and the phony free speech advocates don't give a damn about free speech unless it's speech they like. Might as well go back to being part of the United Kingdom. Better ruled by tyrants farther away then ones in our backyards.
  • wrong again
    Same result as Campiti. Which was wrong then and wrong now. It is definitely legitimate advocacy in a divorce dispute if one of the parties is an illegal alien. Its totally relevant and touches about every single issue one could imagine from child support to custody to spousal maintenance. This result is naked political correctness and the Emperor has no clothes. The courts are making a laughingstock out of themselves with this. I can hardly believe these Justices who have made so many fine decisions have gone agley on this one.

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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