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Opinions Jan. 31, 2012

January 31, 2012
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7th Circuit Court of Appeals
Dale J. Atkins v. Michael Zenk
11-1891
Civil. Affirms U.S. District Court’s denial of habeas corpus petition, holding Atkins did not prove his claim that he was deprived of his Sixth Amendment right to effective assistance of trial counsel.

Indiana Supreme Court
Henry C. Bennett and Schupan & Sons, Inc. v. John Richmond and Jennifer Richmond
20S03-1105-CV-293
Civil. Finds the trial court did not abuse its discretion when it allowed a psychologist to testify on behalf of a plaintiff in a personal injury case as to the cause of a brain injury or in finding that the psychologist’s testimony was based on reliable scientific principles.  

Reginald N. Person, Jr. v. Carol A. Shipley
20S03-1110-CT-609
Civil tort. Holds the trial court did not abuse its discretion by admitting expert testimony offered by a personal injury defendant in a rear-end collision case. Dr. Turner’s opinions were based on reliable scientific principles that could be applied to the facts at issue.

Indiana Court of Appeals
William R. Wallace v. State of Indiana
26A01-1101-CR-9
Criminal. Affirms trial court’s order denying Wallace’s motion to dismiss a charge of Class D felony voyeurism for videotaping without consent a sexual encounter he had with a woman.

Nathan Anderson v. State of Indiana
49A05-1105-CR-243
Criminal. Affirms conviction of and sentence for murder, but reverses convictions of and vacates sentences for burglary and abuse of a corpse, holding Anderson had been denied his request for counsel prior to making statements in interrogation and that the admission of that testimony into evidence at trial influenced the jury’s decision.

Steven Nowling v. State of Indiana
31A01-1010-CR-552
Criminal. On petition for rehearing, the appellate court affirmed its original decision affirming the trial court, holding that during trial Nowling never objected to testimony by a forensic scientist who affirmed the presence of methamphetamine in a pen hull seized from Nowling’s home.

Christopher Stark v. State of Indiana
49A05-1104-CR-152
Criminal. On interlocutory appeal, affirms trial court’s denial of Stark’s motion to suppress evidence that he had a handgun in his possession, holding that a police officer found the gun when retrieving Starks’ coat and that any intrusion in finding the gun was minimal.

Ronald D. Tiede v. State of Indiana (NFP)
91A04-1105-CR-248
Criminal. Affirms trial court’s denial of motion to withdraw guilty pleas to two counts of Class B felony dealing in methamphetamine and affirms trial court’s modification of the sentence contained in Tiede’s plea agreement.

Jason Schapker v. State of Indiana (NFP)
55A01-1106-CR-258
Criminal. Affirms revocation of probation.

Gary Hollin v. State of Indiana (NFP)
16A01-1108-CR-389
Criminal. Affirms trial court’s sentence following determination that Hollin violated his probation.

In the Matter of M.K., I.K., and N.K.; R.K. and E.K. v. Indiana Department of Child Services and Stephen P. Griebel (NFP)
02A03-1104-JC-151
Juvenile. Reverses trial court’s determination that a couple’s three children were children in need of services, holding that the Department of Child Services was overzealous in removing the children from the parents’ care at a time when the family was intact but had suffered a series of unfortunate circumstances.

Daddys 'O Pub, LLC v. Purkey Enterprises, Inc. (NFP)
29A02-1105-PL-439
Civil plenary. Affirms trial court’s determination that an 1897 deed did not create an easement in Purkey Enterprises’ building that would enable the owners of an adjoining pub to use its stairway to access the second story of the pub’s building.

Nick Khanthamany v. State of Indiana (NFP)

49A02-1106-CR-497
Criminal. Affirms convictions of felony murder and conspiracy to commit robbery.

James Eubanks, Jr. v. State of Indiana (NFP)
45A03-1105-CR-212
Criminal. Affirms sentence for Class B felony burglary.

Samantha Bradley v. State of Indiana (NFP)
49A02-1106-CR-513
Criminal. Affirms convictions of Class A misdemeanor criminal trespass and Class A misdemeanor resisting law enforcement.

Susan Kohl v. Duane Kohl (NFP)
34A05-1105-DR-289
Domestic relation. Affirms trial court’s determination that that husband’s pension should not be included as a marital asset, but finding that the wife presented sufficient evidence to rebut the statutory presumption that an equal division of marital property is just and reasonable; remands to the trial court with instructions to award 60 percent of the marital estate to the wife and 40 percent to the husband.

Brien Clayton v. State of Indiana (NFP)
79A02-1102-CR-138
Criminal. Affirms conviction of Class A felony dealing in cocaine, finding harmless any error in the admission of opinion testimony and sufficient evidence to support the conviction.

Indiana Tax Court had issued no opinions by IL deadline.
 

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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