ILNews

Misconduct not inappropriate enough to alter trial outcome

Michael W. Hoskins
January 1, 2007
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A prosecutor ;s request to call opposing defense counsel to the stand during a Pike County trial may have been inappropriate, but the Indiana Court of Appeals has determined it didn ;t rise to the level of misconduct that would have impacted the outcome.

The appellate panel issued its decision today in Joshua J. Nolan v. State, which stems from a 2005 case leading to Nolan ;s conviction for criminal deviate conduct and residential entry. He raised three issues on appeal, but the court restated them as five and discounted them all in their affirmation of his conviction.

During trial, the prosecutor, Boyd A. Toler, asked to call Nolan ;s defense counsel, Douglas S. Walton, to testify in response to cross-examination of a state trooper regarding DNA evidence. Court records show that questioning called for speculation on the trooper ;s part, and the prosecutor decided to call the opposing attorney to clarify what had been said on the issue. The judge called for a sidebar, and the two attorneys reached a stipulation that resulted in the testimony not being needed.

"While we agree with Nolan that the prosecutor ;s conduct before the jury was highly inappropriate, we cannot agree that the inappropriate conduct placed Nolan ‘in a position of grave peril, ;" the court wrote, continuing later in the opinion that "the prosecutor ;s subsequent statement to the jury that opposing counsel ;s testimony was unnecessary overcame any misconduct."

The full opinion can be read at Joshua J. Nolan v. State of Indiana.
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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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