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Majority reverses Hopper advisement created last year

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A divided Indiana Supreme Court has reversed its 2010 decision to require that pro se defendants be informed about the dangers of pleading guilty without an attorney. Two of the justices who originally voted to create the “Hopper advisement” found themselves in the minority on the high court’s decision on rehearing.

In September 2010, Justices Robert Rucker, Frank Sullivan and Theodore Boehm created the “Hopper requirement” – named after defendant David Hopper – which held that trial courts must be advised of the dangers of going to trial or pleading guilty without representation as required by Faretta v. California, 422 U.S. 806 (1975). The majority in the original decision noted the new advisement – which was prospectively applied – would require minimal additional time or effort at the initial hearing and wouldn’t impose a significant burden on the judicial process. Chief Justice Randall T. Shepard and Justice Brent Dickson dissented, questioning how many people would decide not to plead guilty based on the advisement or how many repeat offenders would avoid penalties because the warning wasn’t given.

But since that 2010 ruling, Boehm has retired and been replaced by Justice Steven David, and today the high court reversed its earlier decision on a rehearing petition requested by the state. Shepard, David and Dickson made up the majority in the latest opinion. The majority affirmed the denial of post-conviction relief for Hopper – who in 2005 decided to plead guilty to a driving while intoxicated charge after waiving his right to counsel. The majority denied Hopper’s argument and overturned their earlier decision.

“While we do not doubt the value of the Hopper advisement’s language in particular stages of particular cases with particular defendants, the notion that such language should be mandatory in all stages of all cases with all defendants is misplaced,” wrote Shepard in David Hopper v. State of Indiana, No. 13S01-1007-PC-399.

Rucker and Sullivan dissented, with Rucker writing that the state’s petition for rehearing never should have been granted because the state advanced no new arguments. Rucker also couldn’t understand why the majority believes it is a bad idea to provide pro se – and likely indigent – defendants with the advisement outlined in the original Supreme Court decision: “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.”

“I do not disagree that a Hopper advisement is not necessarily required by the Sixth Amendment or by the Indiana Constitution,” he wrote. “Nor do I advocate that the lack of an advisement would automatically result in reversal of a defendant’s conviction. But the advantages of giving such an advisement, especially at the initial hearing stage of the proceedings, far outweigh any disadvantages of doing so.”

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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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