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Majority orders new requirement for pro se defendants with little guidance

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Three Indiana Supreme Court justices created a new requirement as an exercise of supervisory powers when it comes to informing future defendants about the dangers of proceeding pro se, leaving two justices to dissent because the new requirement provides no guidance as to what trial courts must do or say.

In David Hopper v. State of Indiana, No. 13S01-1007-PC-399, David Hopper originally pled guilty in 2005 to operating while intoxicated. He signed a “waiver of attorney” form. In 2009, he filed a petition for post-conviction relief saying his waiver wasn’t made knowingly and intelligently and because of that, he was denied his right to counsel in violation of the U.S. and state constitutions.

The Court of Appeals reversed the denial of relief by the post-conviction court. The judges found a waiver of counsel entered into without advice of both the right to counsel and the dangers of proceeding pro se is not knowing and voluntary. They pointed out the value of counsel’s experience in bargaining for a plea and the ability to find weaknesses in the state’s position to allow for negotiation.

The Court of Appeals referred to the constitutions, but Justices Theodore Boehm, Robert Rucker, and Frank Sullivan decided not to base their holding on either the federal or state constitution, noted Justice Boehm for the majority.

“Rather, we exercise our supervisory power to require that in the future a defendant expressing a desire to proceed without counsel is to be advised of the dangers of going to trial as required by Faretta, and also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution’s case,” he wrote.

The majority noted this new advisement, which is prospectively applied, will require minimal additional time or effort at the initial hearing and may encourage defendants to accept counsel. They don’t believe it will impose a significant burden on the judicial process, but didn’t offer any specific instructions on how trial courts were to advise defendants.

Since this will apply to future cases only, the majority affirmed the judgment of the trial court.

Chief Justice Randall T. Shepard and Justice Brent Dickson dissented. Chief Justice Shepard wrote that the primary beneficiaries of the decision will be repeat offenders, people like Hopper “because he has been charged with yet another offense and it would be helpful to him if he could wipe out his last conviction for drunk driving.”

The warnings mandated by the majority aren’t required by the federal Constitution and the majority explicitly declined to say that they are required by the state constitution, he continued, and they acted “without a word” on balancing the social costs or benefits within the mandate.

The dissent questioned how many people will decide not to plead guilty because of the “minimal” judicial intervention introduced by the majority, or how many repeat offenders will avoid penalties because the warning was omitted or found inadequate with the benefit of hindsight.

“That society, or even offenders, will be better off is far from clear,” he wrote.
 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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