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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. 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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