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Man gets new trial because of ineffective counsel

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Based on ineffective assistance of counsel, the Indiana Court of Appeals today reversed on direct appeal a man’s domestic battery conviction and remanded the case for a new trial.

In Marcus Lewis v. State of Indiana, No. 49A02-0909-CR-920, the appellate court noted a post-conviction hearing is “normally the preferred forum” for such a claim. However, it added that some claims, such as this one, can be evaluated on the trial record alone and resolved on direct appeal.

To establish ineffective assistance of counsel, one must show that the lawyer’s performance was deficient and that the deficient performance prejudiced the defense.

Lewis was charged with domestic battery and battery as Class A misdemeanors. Parties appeared in court July 31, 2009, before a senior judge for a bench trial, but Lewis said he wanted a jury trial and had requested one during his initial hearing. The senior judge reset the case for jury trial, and counsel filed a written request for the jury trial Aug. 4, 2009.

The sitting trial judge reversed the senior judge’s decision Aug. 5, reset the case for a bench trial, and denied Lewis’ request.

Lewis’ case was tried Aug. 28 before a commissioner, who found him guilty of domestic battery and battery but the battery conviction was vacated because of double jeopardy concerns.

Lewis claimed his counsel failed to timely file a written demand for a jury trial and therefore deprived him of that right under Article I, Section 13 of the Indiana Constitution. Indiana Criminal Rule 22 specifies that a defendant charged with a misdemeanor can demand a jury trial by filing a written demand not later than 10 days before his first scheduled trial date, unless the defendant has not had at least 15 days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial.

Lewis did not have counsel at his June 2, 2009, initial hearing, during which the court appointed counsel to represent him. The court advised Lewis of his jury trial rights and the time limitation. The court’s chronological case summary shows Lewis’ expressed preference for a jury trial. One attorney represented him during his bond hearing June 5, but another attorney represented Lewis at the July 31 bench trial.

The state said Lewis’ claim must fail because, unlike Stevens v. State, 689 N.E.2d 487, 489 (Ind. Ct. App. 1997), there is no evidence that Lewis personally asked any of his attorneys for a jury trial until July 31.

“We conclude that this distinction is not significant because the [chronological case summary] in this case emphatically indicated Lewis’ wish to be tried by a jury. Thus, Lewis’ attorneys should have known of Lewis’ preference for a jury trial from reviewing the CCS and pursued the matter further before the scheduled bench trial,” wrote Senior Judge Betty Barteau.

The court wrote that like Stevens, the failure of the attorneys to file a written jury trial request on Lewis’ behalf cannot be considered a strategic choice. During the July 31 and Aug. 5 hearings, his attorneys argued “at length” that Lewis should be given a jury trial, and on Aug.4, Lewis’ attorneys filed a belated motion for jury trial. Judge Barteau noted such a course is “inconsistent with a strategic determination to seek a bench trial.”

Despite the fact Lewis’ change of representation between hearings likely contributed to counsel’s error, the court concluded the attorneys’ failure to timely file a written request for a jury trial fell below the range of professionally competent representation.

When an attorney’s performance falls below the range of professionally competent representation and deprives a defendant of a fundamental right, such as the right to a jury trial, prejudice is presumed. See Stevens, 689 N.E.2d at 490.

Because Lewis was prejudiced by his attorneys’ error, he did not receive effective assistance of trial counsel with respect to his request for a jury trial.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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