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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. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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