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IndyBar: Interrogatories - Candid Q&A with the Bench and Bar

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By Tyler D. Helmond, Voyles Zahn & Paul

Hon. Marc T. Rothenberg

Judge, Marion Superior Court
 

marc rothenberg Rothenberg

He is a graduate of Indiana University Bloomington and the Valparaiso University School of Law. He served as a Marion County Deputy Prosecutor and Commissioner at both the Arrestee Processing Center and traffic court before his election to the Marion Superior Court bench in 2009. He is the Honorable Marc T. Rothenberg, and he has been served with interrogatories.

QYou have sampled from nearly every corner of the criminal-judging buffet: The Arrestee Processing Center, traffic court, D felony cases, and now major felony cases. What has been your favorite and least favorite part at each stop?

AEach chafing dish has had a lot to offer. At the APC I worked from 7 p.m. to 5 a.m. for two and a half years. I found working in the middle of the night pleasant. It was like you were operating in your own little world, as the rest of the city slept. It also had its challenges, like dealing with early releases due to jail overcrowding. The worst part was the impact on my home life. At the time I had a newborn, and not getting to spend daylight hours with my family was tough.

Traffic court is where I feel I really developed my judicial style. Massive dockets and a large administration were the biggest challenges I faced. I think we, my staff and I, did the best we could with the resources we had facing a never-ending stream of cases. It was there I learned how to be judicially efficient. Some cases needed more time than others. Being able to sort them out is an important part of being a judge.

My election to be the presiding judge in D Felony Criminal Court presented an excellent training ground for me. I really enjoyed the subject matter of most of the cases, and it afforded me the opportunity to deal with more challenging constitutional issues such as search and seizure. I feel as though every judge should be required to spend time in a D Felony court; they will be better for it.

As for the major felony bench I sit on now, I don’t think I can give a fair assessment of my likes and dislikes of it yet. I have only been here six months. The subject matter of the cases obviously isn’t enjoyable. They are the worst crimes that exist. I can tell you that I am lucky to have the prosecutors and the defense attorneys that regularly appear before me. They really know their stuff, and I go into each session knowing that the interests of each defendant and the citizens of Indianapolis are in very good hands. I also need to mention that I would not be able to have survived one day, let alone six months, without the fabulous court staff I have. They make my job so much easier than it could be. In Court 2, just between the attorneys and my staff it is a pleasure to come to work every day.

There are general things about being a judge that I don’t like. It can be stressful, very stressful, and isolating. We deal with decisions and situations that sometimes we can’t talk about with anyone aside from other judges. I lean on my colleagues at times. They are an invaluable resource, and I cannot express how much their advice and counsel means to me.



Q: What is on your iPod?

A: Unfortunately I listen to a lot of Radio Disney, as I often have my kid in the car. But when I am not listening to Selena Gomez or Ausin Mahone, I listen to a little of everything. It is very mood driven. As of right now, I have 358 albums on my iPod. It ranges from Kenny Rogers to RZA to The Grateful Dead. Currently on my regular rotation is: 1) Daft Punk – “Random Access Memories” 2) The Replacements – “Pleased to Meet Me” 3) Tom Waits –“Raindogs” 4) The New York Dolls – “New York Dolls” 5) Jack White – “Blunderbuss”. My favorite album is U2’s “Achtung Baby.” “One” might be the most perfect song ever written.



Q: What mistake do advocates most frequently make in your court? What advice do you have for correcting it?

A: I think the biggest mistake an attorney can make is not being prepared. I am a pretty relaxed guy, but it gets frustrating when an attorney is clearly not prepared for whatever the case is set for. Correcting it is easy; simply be prepared. I don’t see much of that now, as the attorneys that I have in Court 2 are more seasoned.

The other thing that frustrates me is when attorneys don’t know the rules of evidence. I am not saying that I am an expert on the rules, but some things, such as when the rules even apply, are fundamentals that all attorneys need to know. I was shocked when my brother, who was going through law school at the time, asked me if he should take Evidence as a class. It wasn’t mandatory. Mind Blown. Does a builder build a house without a hammer and nails? Does a chef cook a meal without pots, pans, and knives? No. A trial attorney cannot effectively represent their client without knowing the rules of evidence. They are the tools of the trade. Not knowing them is tantamount to malpractice. If nothing else, bring a copy of the rules with you, so that when there is a discussion on hearsay admissibility, we can all read it together.



Q: Has major felony judging come with more worry for your personal safety?

A: More worry? No. My first day on the bench in traffic court, I was confronted with a situation where a defendant became very belligerent toward me. His actions implied a threat. From that point on I realized that no matter what court or bench a judicial officer sits on, whether it is traffic court, misdemeanor court, major felony court, or a civil court, you are going to be in a position where your safety is an issue. So moving to a major felony court has not changed the fact that I need, unfortunately, to be aware of personal safety at all times. Honestly, even being an attorney these days would make me heighten my sense of security.



Q: Who is the funniest judge or commissioner on the Marion Circuit and Superior Court bench?

A Judge Michael D. Keele of Civil Division Room 7. He is, hands down, without a doubt, the funniest judge in Marion County. He is the Richard Pryor of the City-County Building.



Q: What would you say to your children if they decided to go to law school?

A: I would give them the following words of wisdom:

It’s not the years, it’s the mileage.

Always split aces, NEVER split tens.

Always…no…never, forget to check your references.



Q: How do you react emotionally when the Court of Appeals reverses you?

A: Dr. Elisabeth Kübler-Ross defined the five stages of grief as denial, anger, bargaining, depression, and acceptance. I have spoken to judges from all over the country, and it would seem that some of them go through all of these stages when reversed. I have a much more simple approach. I skip to the last stage, acceptance. I have always said, to others and myself, that while I wear a robe, and have a title, I am just a human being. I make mistakes. Nobody is perfect. As a judge, the key is to do your best, and try to make the best decision using the tools you are given, statutes, precedent, and the state and local rules. You are not going to get it right 100 percent of the time. When I get a decision that reverses me, I carefully examine it as a sommelier would examine a wine. I read the opinion, and I digest its reasoning. I compare and contrast it with the reasoning I used at the time of the decision I made. If it is an error that was within my control, I will make sure it doesn’t happen again. If it was beyond my control, I think about what I could do in the future to avoid the same situation from arising again. Either way, I take it as a learning experience, and I think it makes me a better judge.



Q: Your wife Stephanie is also an attorney, is there a rivalry, and if so, who is winning?

A: Next question.



Q: What books or movies do you think everyone should read or see?

A: Like my music, my taste in all forms of media varies. My favorite movie is “Raiders of the Lost Ark.” It has everything you could ever want to see in a film—action, romance, and face melting Nazis. I saw that movie 22 times at the $1.50 movie theater in the summer of 1981. It defined my taste in movies and pop culture. So, selfishly, I would say that everyone should see Raiders.

Beyond that, everyone should watch Danny Boyle’s “Trainspotting” and Darren Aronofsky’s “Requiem for a Dream.” If those films aren’t enough to dissuade people from drug use and self destruction, I don’t know what will. As far as legal movies, I think “The Verdict” with Paul Newman, and “Compulsion” with Orson Wells, are both pretty fantastic. They are realistic portrayals of our profession, the good and the bad.

As far as books go, I read a ton of fiction. I get enough non-fiction from my work. I am a big fan of dystopian works. Margaret Atwood’s “Oryx and Crake” is great book about what happens when morality slips away from humanity’s hands. If looking for a classic, Hugo’s “Les Miserables” is the way to go. Its depiction of society, and the role of redemption within it, is outstanding. The character of Javert, the police officer trying to make order from chaos, in my opinion, is one of the most important in literature. On the flipside, if you have ever been in my chambers, you have noticed that I like the villain “The Joker.” Go read Alan Moore’s “The Killing Joke.” Yes, it’s a comic book. Get over it. It is also one of the best portrayals of social chaos in print. The Joker is a perfect contrast to Hugo’s Javert. Order and Chaos. And really, isn’t that what the legal profession is all about?•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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