ILNews

New Supreme Court lineup could change pro se case outcome

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court is thinking about rehearing a case it ruled on four months ago, in which a majority at the time created a new rule but offered no guidance for trial judges on informing future defendants about the dangers of proceeding pro se.

But what’s changed since that 3-2 ruling in David Hopper v. State of Indiana, No. 13S01-1007-PC-399, is what could ultimately change the outcome of this case if it’s reheard, since now-retired Justice Theodore Boehm was the authoring justice for the majority and he’s no longer a part of the state’s highest court.

Following its Sept. 28, 2010, decision, the court on Monday issued an order that expresses its interest in considering whether it should rehear the issues on this case out of Marion County.

David Hopper had originally pled guilty in 2005 to operating while intoxicated, signing a “waiver of attorney” form but later seeking post-conviction relief on the grounds that his waiver wasn’t made knowingly or intelligently and that denied him the constitutional right to counsel.

The Marion Superior judge denied that petition and the Court of Appeals reversed in Hopper’s favor, but a three-justice majority affirmed the trial judge’s findings as applied to Hopper but also using the court’s supervisory power to set a new standard for future defendants.

“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,” Justice Boehm wrote at the time for the majority that also included Justices Robert Rucker and Frank Sullivan.

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.

As a result of the lack of guidance to trial courts, Chief Justice Randall T. Shepard and Justice Brent Dickson dissented. They 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, the chief justice wrote. He also noted that his colleagues 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.

Following that ruling, the state filed a rehearing request in late October and Hopper did not file a response. Now in its order dated Jan. 10, the Supreme Court is ordering Hopper to file a response to the state’s rehearing request by Feb. 11. Any interested amicus curiae parties are also invited to submit briefs before that date. A separate order setting oral arguments will also be issued by the Supreme Court, which since the Hopper ruling now has a new lineup –authoring Justice Boehm has left the court and Justice Steven David has taken that seat.
 

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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?

ADVERTISEMENT