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Judge argues for suspension, not removal

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A Marion Superior judge who's been suspended from the bench pending a final decision from the Indiana Supreme Court believes his penalty should fall somewhere between a public reprimand and removal.

In a 41-page review petition and 37-page support brief filed Dec. 11, Indianapolis attorney Kevin McGoff - who is representing Judge Grant W. Hawkins - explains why the judge shouldn't be removed from the Criminal Court 5 post he's held since January 2001.

The Indiana Supreme Court's Commission on Judicial Qualifications charged Judge Hawkins in April with misconduct, largely tied to case delays that resulted in Harold Buntin spending nearly two years in prison after DNA evidence cleared him of a rape. A three-master panel has recommended his removal from the bench and the commission agreed; the judge since has been suspended from the bench without pay until the Indiana Supreme Court decides his fate.

His former commissioner, Nancy Broyles, who handled the Buntin post-conviction case and was charged with similar counts, has since resigned and been permanently banned from any future judicial post as a result of the action against her.

Instead of removal, Judge Hawkins is asking that the Supreme Court consider a suspension with pay.

Multiple reasons exist as to why the judge shouldn't be removed, his petition and brief state, including: Buntin was in fact not innocent of the crime and that's been inaccurately portrayed to the public; the judge's stellar reputation in the legal community; that no finding was made that he deliberately deceived or misled anyone during the investigation; that many others with hands in the system played a part in this situation; and that the judge has made numerous court modifications that include creating a file database and increasing staff training and communication to prevent similar delays from happening again.

"Mistakes are made in human endeavor at every level and there is no immunity from the human fallibility that one will make mistakes," the response brief says. "When a public servant makes a mistake, it does not demand that one lose his or her job. This is not and should not be the standard in the field of judicial discipline."

His review petition notes that Judge Hawkins did make mistakes in supervising staff and his commissioner, but it also points out that examples have been found throughout Indiana where courts have let people out of jail too early or kept them too long because of similar errors.

"The goal should be to identify mistakes and correct them, not to unduly punish an honest and hardworking jurist when errors occur," the petition says. "There is always room for improvement in our system."

McGoff argues in the brief that the Supreme Court should not rely on a past judicial disciplinary case of Matter of Kouros, 816 N.E.2d 21 (Ind. 2004), which resulted in the twice-suspended Lake Superior Judge Joan Kouros being removed permanently for creating a backlog of cases and failing to even provide accurate information allowing for adequate outside monitoring. Kouros had a history of mismanagement and disciplinary actions against her prior to the removal decision, Judge Hawkins argues in the brief. That didn't happen in this Marion County case.

Instead, the Supreme Court should use Matter of Newman, 858 N.E.2d 632 (Ind. 2006), as guidance because it's more in line with what happened in this case, the brief says. In Newman, Madison Superior Judge Thomas Newman Jr. received a public reprimand resulting from administrative disorganization and inaction. He'd failed to send an order to the Department of Correction after the appellate court overturned a decision that a defendant had violated parole and needed to serve the remainder of a sentence. That man served more than a year before learning about his appellate win.

The similarity of the facts in both Newman and Hawkins suggests the appropriate sanction for Judge Hawkins should be more in line with that previous case, the brief states. Although Judge Hawkins didn't reach an agreement with the Judicial Qualifications Commission as Judge Newman had, and that likely means more than a public reprimand, the two penalties shouldn't be so dramatically different, the brief says.

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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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