ILNews

Investigation goes beyond one case of delay

Michael W. Hoskins
January 1, 2008
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Harold D. Buntin is a focal point of the judicial misconduct investigation into a Marion Superior Court judge and his part-time commissioner, but the Indianapolis man could be just the tip of the iceberg for what's been happening in that criminal court.

The nearly dozen charges brought separately Wednesday against Marion Superior Judge Grant W. Hawkins and Master Commissioner Nancy L. Broyles, both assigned to Criminal Court 5 since January 2001, not only deal with a single case of possible wrongdoing but that the problem may go much deeper, an investigation shows.

Filing two separate notices shortly before 4:30 p.m. Wednesday, the Indiana Judicial Qualifications Commission "allege delay and dereliction of their duties as the judicial officers responsible for ... Buntin's post-conviction case and as the judicial officers responsible for providing reliable and timely information about the court's delay in the Buntin case."

The investigation findings show Commissioner Broyles has a history of past delays lasting as long as 28 months and ended with backdated rulings, some involving missing or "prematurely archived" files.

Reached by telephone this morning, Judge Hawkins said he'd known charges were coming but wasn't aware they'd been filed; he wanted to review them before commenting.

His attorney, Kevin McGoff with Bingham McHale, hadn't spoken to the judge by early afternoon.

"He's cooperated with the commission since this was first brought to his attention, and we'll continue to do so," McGoff said. "There's a procedure in place to have these charges resolved, and we'll work through that process. It's best to leave it at that."

Commissioner Broyles did not immediately respond to telephone messages from Indiana Lawyer, and her counsel could also not be reached by early afternoon to speak about the allegations.

Mostly, the 11 counts against the judge and 10 against the commissioner deal with their involvement in Buntin's post-conviction case, and alleged delays and dereliction of duty between April 2005 and March 2007 that led to Buntin remaining in prison for nearly two years after DNA results cleared him of a 1984 rape.

The charges allege that Judge Hawkins did not adequately supervise his staff and commissioner, committed conduct prejudicial to the administration of justice, and did not uphold the integrity and public confidence of the judiciary by allowing the delays in at least one case. One count accuses the judge of violating canons specifically by "creating the false impression to the Commission during its investigation that the post-it note contained evidence of a May 20, 2005 order having been prepared." Charges are similar against Commissioner Broyles.

But within the 11-pages of background and charges against each one, details from the commission's investigation reveal that up until March 2007, the part-time commissioner "routinely issued final orders in post-conviction cases without obtaining Judge Hawkins' approval and signature, contrary to Indiana Codes 33-33-49-16 and 33-23-5-8."

A full copy of the charges against Judge Hawkins can be found here and Commissioner Broyles can be found here.

The charges stem from Buntin's post-conviction proceedings that he initiated a decade ago. At age 17 in 1986, Buntin had been convicted in absentia of robbery and rape of a 22-year-old clerk at an Indianapolis cleaner, and he began serving a 50-year sentence in the Indiana Department of Corrections in 1994 after being extradited from Florida. He petitioned for relief in 1998 based on DNA evidence that wasn't available during his trial that he hoped would clear him; it eventually did in 2005. Commissioner Broyles was assigned his post-conviction hearing that March, the investigation shows. She took it under advisement in April 2005.

The case came to light after Buntin received no word from his attorney, Carolyn Rader, or the court, despite his repeated attempts to get an answer. He contacted the commission to investigate the reason for the delay.

After the commission got involved, Judge Hawkins and Commissioner Broyles eventually issued an order March 8, 2007, backdating it to May 2005. The wrongly imprisoned man was released April 20, 2007, after the commission asked why no immediate action had been taken and Buntin had again written to the court about his release.

In explaining the two-year delay, both the judge and commissioner filed a notice that blamed a court or clerk's employee for neglecting to process the order as Commissioner Broyles said she'd instructed on a Post-It note attached to the order, the charges state.

Commissioner Broyles told the commission initially during the investigation that she had issued an order three days after taking it under advisement in April 2005, despite evidence that she'd told Buntin's attorney she intended to work on the case and asked for more information after that date. When the commission notified the judge and commissioner in January 2008 that they were amending the investigation focus to include not only delays and neglect but also the possibility that they'd given false impressions about what happened, Commissioner Broyles later advised members that she may have actually issued the order in 2006 but neglected to remove the 2005 date from a proposed order submitted by Buntin's attorney.

The disciplinary notices say both were unable to explain some of the delays, with the investigation including e-mails and court records that conflict with what the two indicated had happened.

Also included in the investigation is a point about what happened after the issue came to light and Judge Hawkins and Commissioner Broyles issued the backdated order.

But even after they knew - or should have known - about the delays and that Buntin's release should have been ordered previously, neither Judge Hawkins nor Commissioner Broyles took action to mandate his release until more than a month after the March 2007 order's effective date, the investigation pointed out.

Buntin filed a wrongful detention lawsuit against Criminal Court 5 in January, and that case is ongoing in Marion Superior 13; the Indiana Supreme Court appointed Hamilton Superior Judge Daniel Pfleging in February as a special judge on the case after Marion Superior Judge S.K. Reid recused herself. Buntin also filed a suit in August 2007 against his trial attorney, Rader, and the county clerk's office said it remains open in Marion Superior 5.

Rader didn't return a phone message today from Indiana Lawyer.

Each has an opportunity to respond in writing to charges within 20 days, though that isn't required. The Judicial Commission wants the Indiana Supreme Court to appoint three masters to conduct a public hearing on the charge that Judge Hawkins and Commissioner Broyles committed judicial misconduct as alleged before deciding what, if any, sanctions should be imposed. The disciplinary action, which could take several months to resolve, could result in punishment ranging from reprimand to suspension without pay to removal from office.
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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