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Judges question earlier Circuit holding

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A decision from the 7th Circuit Court of Appeals about child pornography convictions turned into an examination of whether a standard adopted by the Circuit Court regarding allocution should remain the law of the Circuit.

In United States v. Dick L. Noel, No. 07-2468, the Circuit judges unanimously affirmed Dick Noel's convictions of producing and possessing child pornography. Despite the allowance of testimony from a police detective that images found on Noel's computer met the federal definition of child pornography - which was improper - the judges believed the outcome of the case would have been the same if it had been excluded.

The judges also found the District Court committed plain error during its sentencing, including Noel not being allowed allocution, but Judge Michael Kanne and Chief Judge Frank Easterbrook ruled that it didn't affect the fairness, integrity, or public reputation of the judicial proceedings.

But the focus of the opinion turned to whether to revisit United States v. Luepke, 495 F.3d 443, 451 (7th Cir. 2007), which ruled that when conducting plain-error reviews that show a District judge didn't give a defendant the right to allocute, the court should presume prejudice when there's any possibility the defendant would have received a lesser sentence had he been heard. The issue arose because Noel challenged his sentence and argued he wasn't given the chance for meaningful allocution because the District judge didn't personally ask him if he'd like to speak and instead spoke directly to his attorney. The attorney read aloud a letter written by Noel that she thought may help with his sentencing in response to comments by the prosecutor.

The holding that a judge must address a defendant personally and offer him or her the opportunity to speak before sentencing was codified in Federal Rule of Criminal Procedure 32(i)(4)(A)(ii.) Chief Judge Easterbrook took issue in his concurring opinion that an appellate court must presume prejudice when there is any possibility that the defendant would have received a lesser sentence had he been given the chance to speak because the presumption is in the defendant's favor and the proposition of "any possibility" of prejudice suffices to establish plain error.

Luepke justified transferring the burden to the prosecutor because it's hard to show an adverse effect from a judge's failure to address the defendant personally, rather than addressing counsel in the defendant's presence, which conveys the same information but doesn't satisfy the rule, he wrote.

"That a violation did not affect anyone's behavior - which may explain why no one objected - ought not make reversal the norm. It is instead why a court of appeals should allow the judgment to stand," he wrote.

But in her dissent, Judge Ann Claire Williams wrote the appellate court can't deny the importance of the right to allocute and the steps the District Court must take to enforce it. She argued the presumption of prejudice allows the right to be enforced and provides a remedy when procedural rules may have rendered it effectively obsolete.

"The presumption we adopted in Luepke does not make the denial of allocution a structural error, nor does it advocate for automatic reversal. It recognizes that the right is more than an 'unenforced honor code' that judges may follow in their discretion," she wrote. "Unless the Supreme Court says otherwise, I see no reason to revisit Luepke."

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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