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Indiana Judges Association: Are changes needed to ‘change of judge’ rule?

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IJA-Dreyer-DavidOnce upon a time, there was a corporation that wanted to sue a lot of other corporations in Indiana. After the lawsuit started, one defending corporation moved for an automatic change of judge under Indiana rules. The case was re-assigned, and a different defending corporation moved to dismiss, citing related out-of-state litigation and the like. After about a year and a half of briefing, arguing and procedural running in place, the motion was denied. So the moving corporation filed its own automatic change of judge motion. But the judge said “no, y’all already got one change, can’t have another.” Then, all the defendants went to the Indiana Supreme Court and convinced it to let them have another change of judge. And when the change was made randomly by the local clerk, the case ended up with the original judge where it started way back when. No one seemed to notice and no one seemed to care.

This is a true story.

An objective observer would have to conclude that the parties did not really care who the judge was – they must have had some other strategic reason for delay, or wanted to discharge a judge who ruled against them once and might again, or some other reason. But the whole basis for an automatic change of judge is rooted in the ideal that you can get one free pass on a judge you think is biased, and be excused from having to allege or prove bias, especially when that judge is the one who gets to decide if you are right. It has now become necessary to reconcile the ideal with the reality: Changing judges as a gaming litigation strategy has nothing to do with who the judge is or any actual bias.

According to our Division of State Administration, there may have been as many as 3,500 automatic change of judge motions in Indiana over each of the last two years. This is almost 10 times over for each judge in the state and about 5 percent of the most commonly filed civil cases. That’s a lot of changing. Are there that many parties and lawyers who have that many problems with that many judges? Or is it just a small group of biased judges that are changed from virtually all of their cases? Or, more likely, is it a growing strategy of lawyers and litigants that is largely unrelated to actual provable bias?

Originally, the National Center of State Courts reports, automatic change of judge procedures arose as far back as the 1800s to stem problems in less populous communities where only one judge ruled and he or she knew literally everybody. It also allowed defendants to “unpick” judges picked by plaintiffs. Former Chief Justice Randall T. Shepard has traced the Indiana history and found automatic change motions emerging in the 1950’s when the profession recognized them as preferable over the friction bred by disqualification motions. But Maurer School of Law professor Charles Geyh, former director of the American Bar Association’s Judicial Disqualification Project and judicial ethics expert, says that only about 20 states have automatic change of judge rules, and those are almost all west of the Mississippi (where Judge Judy lives, so they need it). He sees a more central problem, that is, we are “divided over when it is reasonable for the presumption of impartiality to yield to the suspicion that extralegal influences may have compromised the judges’ impartial judgment.” If judges are presumptively neutral, how best to litigate a change of the few who are not?

While Professor Geyh acknowledges the delay game now grown into automatic change of judge procedures, he believes the best solution is found by providing disqualification motions be decided by a neutral judicial officer, not the targeted judge, which increases the legitimacy of disqualification procedures and thus increases pubic confidence in courts’ impartiality. “They should not be grading their own papers,” says Professor Geyh.

The ABA finds, naturally, that disqualification motions are less common in states with automatic change rules. But if we adopt procedures like Professor Geyh suggests, do we still need the obvious downsides of delay now inherent in automatic change? Tom Carusillo, the director of Trial Court Services in our State Court Administration, reminds us that Indiana changed its rule just this year by removing the striking panels. The old rule allowed the discharged judge one privilege before he or she left the case: listing the judges for the parties to pick. The striking panels are now gone, says Carusillo, because data showed significant delays and confusion in many cases. In addition, former Chief Justice Shepard recalls that similar considerations led to the repeal of automatic change of venue rules and restricted automatic changes in child-related matters.

So, it is worth wondering why we need automatic change of judge rules and if the trend is going against them. After all, we judges don’t get an automatic change of counsel. And believe me, there are times when we could really use one. So if we can live without it and be responsible professionals, why can’t lawyers? Just sayin’ … .•

__________

Judge David J. Dreyer has served on the Marion Superior Court since 1997. He graduated from the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association.

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  1. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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