Criminal case

State didn't prove man used car to keep drug

November 4, 2009
Jennifer Nelson
The Indiana Court of Appeals overturned a conviction of maintaining a common nuisance because the state failed to prove the defendant used his car to keep marijuana.
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Improper venue doesn't require acquittal

November 3, 2009
Jennifer Nelson
Even though the Hamilton Superior Court erred in concluding it was the proper venue for a felony child solicitation charge, the error doesn't warrant an acquittal of the conviction, the Indiana Court of Appeals concluded today. The case was remanded for retrial in the proper venue of Madison County.
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YouTube video prejudiced juryRestricted Content

October 30, 2009
Jennifer Nelson
The use of a YouTube video during closing arguments as a demonstrative aid by the state warrants a reversal of a robbery conviction because it may have prejudiced the jury, the Indiana Court of Appeals ruled today.
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No error in sanctions against state

October 28, 2009
Jennifer Nelson
A trial court didn't clearly err when it dismissed drunk driving charges against a defendant as sanctions for the state's discovery violations, the Indiana Court of Appeals concluded today.
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COA reverses dismissal of drug charges

October 21, 2009
Jennifer Nelson
A trial court erred when it sua sponte decided to exclude evidence from a warrantless search of a defendant's car and dismiss the drug charges against him as a result of that search, the Indiana Court of Appeals ruled today.
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COA: Destroyed tape doesn't make record silent

October 20, 2009
Jennifer Nelson
The premature destruction of a tape of a guilty plea hearing by court staff doesn't render the record silent for purposes of Boykin, the Indiana Court of Appeals ruled Monday.
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Supreme Court considers MySpace statement

October 15, 2009
Rebecca Berfanger
he Indiana Supreme Court today issued an opinion that affirmed a Kosciusko Circuit jury's conviction of a man who murdered his girlfriend's 2-year-old daughter and the resulting sentence of life in prison without parole. The opinion also considered the defendant's novel question: whether statements from his social networking Web site, which were presented to the jury as evidence of his character, were admissible in court.
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Judges disagree on when escape occurs

October 7, 2009
Jennifer Nelson
The Indiana Court of Appeals had to decide whether inmates in a jail could be charged with escape if they never left the outer walls of the facility. The majority affirmed the dismissal of the escape charges against the six inmates, ruling the act was just a violation of prison rules.
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Testimony showed intent in identity deception

October 5, 2009
Jennifer Nelson
During a trial for identity deception, a court correctly admitted evidence under Indiana Evidence Rule 404(b) of the defendant's prior interaction with the victim of his identity theft and previous instances of using the victim's information, the Indiana Court of Appeals concluded today.
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COA splits on cheek-swab requirements

September 30, 2009
Jennifer Nelson
A split Indiana Court of Appeals ruled taking a cheek swab for DNA testing requires reasonable suspicion only, not probable cause, under federal and state constitutions.
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Judges dissent on search after 'knock and talk'

September 30, 2009
Jennifer Nelson
An Indiana Court of Appeals judge dissented from his colleagues' view that a police "knock and talk" investigation didn't violate a man's rights under the Indiana Constitution, fearing the circumstances of the case could lead to a general distrust of law enforcement.
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Court split on if lab tech must testify

September 25, 2009
Jennifer Nelson
The state's highest court was split in its ruling on whether the failure of a lab technician who processed DNA evidence to testify at a man's trial violated his Sixth Amendment rights.
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Circuit Court vacates drug sentence

September 14, 2009
Jennifer Nelson
The 7th Circuit Court of Appeals affirmed a man's drug conviction, but vacated his sentence because it wasn't confident the District Court judge properly sentenced him.
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Supreme Court grants 6 transfers

September 14, 2009
Jennifer Nelson
The Indiana Supreme Court granted six transfers Sept. 11, including a case of first impression involving a suit filed by a pathological gambler against a riverboat casino.
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Consent not defense in battery case

September 9, 2009
Jennifer Nelson
Because consent is not a defense to battery when a deadly weapon is used, the Indiana Court of Appeals affirmed a man's convictions of felony and misdemeanor battery on his girlfriend after branding her with a hot knife and hitting her with a cord.
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Court erred in denying court-appointed counsel

September 2, 2009
Jennifer Nelson
The Indiana Court of Appeals reversed a man's convictions because the trial court failed to adequately ascertain whether he was indigent for purposes of court-appointed counsel.
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Judges disagree on search validity

August 31, 2009
Jennifer Nelson
On remand from the Supreme Court of the United States to reconsider under a recent ruling, the Indiana Court of Appeals reaffirmed the forfeiture of a woman's car following the arrest of her son for driving while suspended. One judge dissented because she believes the search of the vehicle was unreasonable in light of the recent ruling.
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Instant offense considered 'unrelated' per statute

August 28, 2009
Jennifer Nelson
The trial court was correct in interpreting the state's habitual offender statute to include an instant conviction as one of the "unrelated" convictions referred to in the statute, the Indiana Court of Appeals ruled today.
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Justices: Appeal not available after guilty plea

August 25, 2009
Jennifer Nelson
A majority of Indiana Supreme Court justices agreed a man who pleaded guilty couldn't appeal the denial of his pre-trial motion to suppress. Yet one justice believed the plea agreement should have been honored according to its terms, which included reserving the right to object to the denial of the motion to suppress.
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7th Circuit affirms possible erroneous sentenceRestricted Content

August 18, 2009
Jennifer Nelson
Because a defendant's attorney affirmatively waived any challenge to an Armed Career Criminal Act enhancement - despite the 7th Circuit Court of Appeals advisement that the enhancement may have been an error due to a recent Circuit ruling - the federal Circuit Court had no choice but to affirm the District Court.
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Trial court erred in denying motion to continue

August 17, 2009
Jennifer Nelson
A Marion Superior trial court should have granted a woman's motion to continue the day of her bench trial because she had a constitutional right to present a defense to support her involuntary intoxication argument, the Indiana Court of Appeals decided today.
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No Brady violation in sex-sting case

August 13, 2009
Jennifer Nelson
A defendant failed to show there was a Brady violation in his trial for enticing who he thought was an underage girl he met on the internet, the 7th Circuit Court of Appeals ruled today.
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State's policy in court doesn't violate constitution

August 12, 2009
Jennifer Nelson
The state's refusal to waive jury trials in one Marion Superior Court doesn't violate the constitutional rights of the mentally ill defendants who appear in that court, ruled the Indiana Court of Appeals.
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COA: Trial delays not defendant's fault

August 4, 2009
Jennifer Nelson
The Indiana Court of Appeals reversed the denial of a motion for discharge pursuant to Criminal Rule 4(C) because the court incorrectly attributed delays to the defendant.
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Court: Murderer not eligible for parole

July 31, 2009
Jennifer Nelson
The Indiana Supreme Court ruled that a man serving two life sentences for his 1975 murder convictions isn't eligible to seek parole under the laws in effect at the time the murders took place, but could seek clemency though the Indiana Parole Board.
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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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