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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. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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