ILNews

Appellate case 'purgatory' exists in Indiana's government center basement

Back to TopCommentsE-mailPrintBookmark and Share


Outside of courtrooms, conference rooms, and law firm offices, there's a place that most lawyers don't often see but is an essential step in the process cases go through at the Indiana appellate level.

Hundreds of appeals pass through this place each year and countless hours of attorney and judicial work is effectively put on hold. It's the place where cases go once the Indiana Court of Appeals or Tax Court issues a ruling and before a decision is made about whether they'll go to the state's highest court, be revisited, or ultimately die.

"We call this the waiting room, or purgatory," said Appellate Clerk and Indiana Supreme Court Administrator Kevin Smith. "We're waiting to see what happens, waiting to see if they'll move on or waiting to know if they'll be buried."

Located in the basement of the Indiana Government Center South in Room W062, the space is located near where the Indiana Roll of Attorneys office is now housed. Only a handful of people in the Appellate Clerk's Office handle the regular daily duties connected with the files sent to this room, but those few people are a key part of a mostly behind-the-scenes process that's procedurally important in how Indiana caselaw is established and how appellate records are preserved.

The process is one that remains largely the same as it once was in a paper-based world, still existing with efficiency. But slowly, the process is moving toward a new vision about how the system could work, as the Indiana judiciary and legislature continue working to shift the infrastructure from paper to computer.

Behind the scenes


Kevin Murley is the man who's primarily responsible for the appellate case "waiting room" area, where hundreds of cases go to wait for any further action. He holds the position of records division manager and has worked for three appellate clerks during the past seven years, which has allowed him to see many rule changes that included the shift from the election to appointment of the appellate clerk.

"You've got to know the rules from the '80s, '90s, and currently because that'll tell you what's on microfilm and how a case may be stored," he said.

With his experience, Murley can find a file in about 20 seconds and spout off statistics and facts about how many cases come through the office. His current boss, Smith, sees that as a bonus that might escape any casual observer who's checking out the area without any familiarity of the filing system.

"All this paper has a disheveled look, and it looks so unorganized. But that's not exactly an accurate representation," Smith said.

Until about three years ago, the holding area was located in the same place where transfer petitions and briefs are currently kept - inside an old vault in the Indiana Statehouse office of the appellate clerk. All bundles tied with string were kept there, and Murley admits it was a little cumbersome because one had to use a rolling ladder - much like a library bookshelf setup - to review and manage the case bundles.

Now, the "waiting room" area is within W062 where attorneys and the public can also go to view archived case files on microfilm. Like wandering through a library, there are three aisles situated among 32 stacks; one side of an aisle is packed full of bundled case files, with the name and cause number written on the round marker tied to the end. Typically, as many as 500 cases may be in that waiting area for the few-month period before a decision is made, he said.

Most are Court of Appeals cases that are awaiting some type of resolution like a final decision or dismissal, but they include Supreme Court cases and also any Tax Court cases that have been transferred to the justices.

If attorneys request a rehearing or that the Indiana Supreme Court take up the case, the petitions and accompanying briefs are kept upstairs in the clerk's office vault. Once fully briefed, the petition and briefs are married to the full case record and kept in the vault until transferred to the court for consideration.

Regardless of the court's decision, all files are eventually moved on to the archiving arm of the process. When that time comes, after the administrative steps in closing the case and making sure a ruling is certified, then the case bundle is moved on to the archiving section in the bigger, packed room nearby, Murley said. About 300 civil and criminal cases a month pass into the archiving storage area, he said.

Murley said he usually only sees about two dozen or so of the same attorneys in that area, researching old files. Most are from the prosecutor or public defender sides, he said.

But some of well-versed appellate attorneys who have their names attached to cases say that even though they know of the waiting and archiving areas within W062, they have little need to visit that office to review records.

Indianapolis attorney Joel Schumm, who often works defending litigants in criminal matters, said he's had to visit the area only a couple times when he needed to see a record in the transcript or appendix. Most of the older cases are kept by Westlaw or are available through a disk provided, so that's less of a concern than it used to be, he said.

Archiving


Despite how often attorneys or litigants might actually want to access files, the clerk's office is required by statute to maintain files for a certain amount of time. That period is based on the type of case and when it is finally resolved: five years for criminal cases and at least 60 days for civil suits, though Murley said he usually keeps them for about a year just in case of belated briefs or other reasons someone might want it. Capital cases are also required to be kept for five years, but that timeline stretches on because the end result often takes much longer than a typical criminal case.

Once criminal case retention schedules are up, the cases are sent to the State Records Division to keep for an additional 15 years. In civil cases, the clerk's office sends a letter to attorneys and pro se litigants once the 60-day time period expires to see if they might want the trial court record. If not, those bundles are boxed up and sent to Indiana State Archives, the permanent repository of important state government records, which has the authority to either maintain or destroy those actual records.

But before leaving the clerk's office, Murley gets the files ready for microfilming. A place exists between the waiting area and the separate archiving room, an area full of metal file cabinets that holds about 12,500 microfilm rolls going back almost a century - every case since the 1970s is there, and Murley has seen cases dating to the 1920s.

Appellate veteran Karl Mulvaney at Bingham McHale in Indianapolis said it's been years since he really thought about that process, really not since he served as Supreme Court administrator in the 1970s through 1991.

He recalled the active COA-decided cases would be parked in the area where the old docket books were kept - in the place now referred to as the vault.

"I used to go down there to that area that's now General Assembly-controlled to review an old case that's been cited," he said. "There were some cases down there with Abe Lincoln's signature on them, but that was some time ago and those are probably all micro-filmed and kept as historical documents now. In the practical sense, there's little reason now for attorneys to go there."

About $100,000 is usually spent annually on the estimated 5,000 microfilmed cases, Smith said, but he hopes to find a way to increase that microfilming capability in these tough budget times. The office once had about 10 to 12 employees, but that was years ago before the task was outsourced, he said.

If every case could be microfilmed that needed to be, it would likely cost about $1 million, he said. The state just doesn't have those resources, so they handle the task as efficiently as possible, all while hoping that the vision of a new electronic archiving system isn't too far away.

Once an e-filing system is implemented and statutes are amended to allow the clerk's office to store and access those records electronically, Smith said the area now used for microfilming would stop filling up. Instead, a digital reader could be set up there for visitors to see cases that way, or even allow people to view them from their computers.

"This (currently) is not nearly as convenient to an attorney in Angola who must travel here to Indianapolis or have it mailed to them," Smith said. "Eventually, I think we'll go to an e-filing system that could allow us to better archive these materials and not have to spend the time and money that we do for archiving and microfilming. Until that time comes, this is the method we must use."

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

ADVERTISEMENT