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Judge affirms retaining charges but finds criminal prosecution unjust

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An Indiana Court of Appeals judge expressed concern that a woman’s criminal case may be affected by her admittance of violating several city ordinances after her dogs attacked two people.

Carolyn Boss brought an interlocutory appeal challenging the denial of her motion to dismiss the charging information of criminal charges related to her dogs’ attacks. She argued that her criminal charges, filed a month after she was cited for violating Indianapolis ordinances, are a violation of double jeopardy principles. Boss admitted to 12 of the 15 violations which resulted in more than $1,200 in fines and court costs.

The trial court denied her motion to dismiss, concluding that the enforcement of the ordinances didn’t constitute punishment and the criminal prosecution was therefore not a second prosecution for the same offense.  

In Carolyn Boss v. State of Indiana, No. 49A02-1002-CR-225, Judges Ezra Friedlander and Paul Mathias affirmed, holding the ordinances – some of which prohibit the same conduct as the criminal statutes – were intended to be a civil remedy, not a criminal penalty.

They also analyzed the ordinances in question using the seven factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), to conclude there is little evidence that the ordinance enforcement actions serve a punitive purpose.

Judge Melissa May concurred in result, unable to find fault with the majority’s analysis of the Mendoza-Martinez factors, but still felt the criminal prosecution of Boss was unjust. She believed the city fined Boss under ordinances that appear invalid under Indiana Code Section 36-1-3-8 because that section prohibits ordinances that prescribe a “penalty for conduct constituting a crime or infraction under statute.”

Judge May also worried that the appellate court’s decision effectively deprives Boss of her presumption of innocence or any meaningful right to counsel in the criminal prosecution. Boss didn’t have an attorney during the ordinance-violation proceeding, and the trial court found her to be indigent. Defendants have the right to counsel in all criminal prosecutions, “But those rights have little meaning where, as in the case before us, the State is in a position to pursue a criminal prosecution based on admissions a defendant made in an ordinance-violation proceeding where no such right-to-counsel protection was available to her,” she wrote.

“It appears Boss was subjected to a money penalty under an ordinance that is invalid, and will now be deprived of her presumption of innocence and of meaningful assistance of counsel as the State pursues her criminal prosecution. That is wrong, even if the State can avoid double jeopardy violations by characterizing the ordinance violation penalties as having no ‘punitive effect.’ It violates the spirit of numerous constitutional rights intended to protect the innocent in criminal proceedings.”

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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