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Lawyer’s suit alleging malicious prosecution, emotional distress may proceed

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The 7th Circuit Court of Appeals reversed the decision by a federal court in Indianapolis that dismissed a Muncie criminal defense attorney’s lawsuit against the United States for malicious prosecution and intentional infliction of emotional distress. Michael Alexander brought the suit after he was acquitted on charges of bribery in 2009.

Alexander was arrested in 2008 based on false and manipulated evidence, according to court documents. FBI agents suspected that Alexander’s longtime investigator, Jeff Hinds, was bribing witnesses in cases involving Alexander’s clients. Alexander denied any knowledge of the bribery, but the investigation continued when Mark McKinney became Delaware County prosecutor in 2007. The two had a contentious history due to Alexander’s criticism of how McKinney handled drug forfeitures when he was a city attorney.

Witnesses gave false testimony at Alexander’s trial and recordings involving Alexander were manipulated. Alexander was acquitted of the charge.

Alexander brought his suit, alleging the arrest and trial was distressing and damaged his reputation and hurt his practice. The District Court dismissed the complaint pursuant to Rule 12(b)(6), finding he failed to state a claim for malicious prosecution and the IIED claim was untimely.

Under Indiana law, malicious prosecution requires a plaintiff establish: 1) the defendant instituted or caused to be instituted an action against the plaintiff; 2) the defendant acted with malice in doing so; 3) the defendant had no probable cause to institute the action; and 4) the original action was terminated in the plaintiff’s favor.

At issue in Michael Alexander v. United States of America, 12-2190, are the first three factors. The 7th Circuit found Alexander’s complaint adequately alleged that he was prosecuted in the absence of probable cause and adequately pleaded malice.

“In our view, the court asked too much of Alexander,” Judge Diane Wood wrote. “Unfortunately, in a world where public corruption is hardly unknown, we cannot agree that Alexander’s complaint is too implausible to hold together absent allegations of this sort. We might wish to live in a world in which such an egregious abuse of one’s official position would be unthinkable, but experience suggests that we do not.”

The judges also found the IIED claim was timely filed and adequate states a claim.

“The conduct described in the complaint is extreme and outrageous (as well as criminal), and there are sufficient allegations to support the inferences both that this conduct was intended to cause Alexander severe emotional distress and that Alexander suffered such emotional distress as a result of his ordeal,” she wrote.

The case is remanded for further proceedings.

 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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