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Opinions Jan. 26, 2011

January 26, 2011
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7th Circuit Court of Appeals
United States of America v. Ty Brock
10-2385
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Affirms denial of motion to suppress items found in Brock’s car during a checkpoint stop. Because the checkpoint was neither objectively nor subjectively intrusive in any way that would outweigh the government’s interest in operating it, the checkpoint stop didn’t violate his Fourth Amendment rights.

Maurice Gipson v. United States of America
09-2756
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry J. McKinney.
Civil. Reverses summary judgment for the government in Gipson’s suit under the Federal Tort Claims Act complaining about complications of neck surgery because the prison’s medical staff didn’t tell him that he needed to stop taking blood thinners at least five days before the surgery. The medical staff should have told Gipson to stop taking the aspirin, and there is conflicting evidence as to whether he ran out of aspirin more than five days before his operation as the government argues. Remands for further proceedings.

Indiana Supreme Court
Fredrick Michael Baer v. State of Indiana
48S00-0709-PD-362
Death penalty. Affirms denial of post-conviction relief following previous affirmation of Baer’s death sentence for two counts of murder. He did not receive ineffective assistance of trial or appellate counsel, his death sentence doesn’t violate the Eighth Amendment, and the trial judge didn’t error in rejecting his guilty but mentally ill plea.

Indiana Court of Appeals
S.S. v. Review Board
93A02-1006-EX-738
Civil. Affirms dismissal of S.S.’s appeal following the denial of unemployment benefits and the denial of her request for reinstatement of her appeal. S.S. was afforded due process and a reasonable opportunity for a hearing, and there was no error in the review board’s consideration of evidence or in its denial of her request to reinstate her appeal. Judge Brown dissents.

Dan Cristiani Excavating Co. Inc. v. Jeremy Money and Kerri Money
10A05-1002-CT-114
Civil tort. Affirms verdict in favor of the Moneys for injuries sustained by Jeremy in a bulldozer accident. The trial court did not abuse its discretion in denying bifurcation of the trial or in declining to allow the jury to view actual or photographic evidence of the bulldozer involved. Cristiani waived the issue of whether Jeremy’s life-care planner was qualified to testify as an expert and that the weight to be given to her testimony was properly conceded by the jury. Cristiani failed to establish actual personal bias by the trial judge.

A.H. v. State of Indiana
10A05-1003-CR-256
Criminal. Reverses one count of Class B felony incest. The evidence, which included A.H.’s stipulated polygraph, was insufficient to prove this conviction beyond a reasonable doubt. Remands for the trial court to vacate this conviction and accompanying sentence and for further proceedings.

Term. of Parent-Child Rel. of T.T., et al.; A.T. v. I.D.C.S. (NFP)
29A05-1008-JT-475
Juvenile. Affirms termination of parent-child relationship.

Gene Hooks v. State of Indiana (NFP)
82A01-1005-CR-220
Criminal. Affirms convictions of two counts of Class C felony child molesting.

Jonathan R. Dye v. State of Indiana (NFP)
21A01-1004-CR-168
Criminal. Revises sentence following guilty plea to two counts of dealing in a controlled substance, one as a Class B and one as a Class C felony, and remands for a sentence of 10 years with two years suspended.

Christopher West v. State of Indiana (NFP)
21A04-1004-CR-303
Criminal. Affirms West’s convictions of two counts of dealing in cocaine as class B felonies and one count of possession of cocaine as a Class D felony. Reverses the trial court’s imposition of consecutive sentences as to the two dealing convictions. Remands for further proceedings.

Melissa A. (Scales) Crupper v. Charles D. Scales, Jr. (NFP)
87A05-1008-DR-500
Domestic relation. Affirms judgment granting father physical custody of the children.

Tevin Reaves v. State of Indiana (NFP)
71A04-1005-CR-332
Criminal. Affirms conviction of murder but sua sponte vacates the conviction of conspiracy to commit murder and sentence on double jeopardy grounds.

Paternity of T.A.; J.M. v. A.A. (NFP)
28A01-1007-JP-387
Juvenile. Affirms order that J.M.’s minor child should assume the surname of A.A., the child’s mother.

Arthur E. Lott, Jr. v. State of Indiana (NFP)
02A04-1006-CR-383
Criminal. Affirms conviction of Class C felony burglary.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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