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Opinions June 14, 2013

June 14, 2013
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7th Circuit Court of Appeals
Jason Findlay v. Jonathan Lendermon
12-3881
Civil/excessive use of force. Reverses District Court denial of summary judgment in favor of Deputy Sheriff Jonathan Lendermon, holding that Findlay has not met a burden of proof showing a violation of a clearly established right when Lendermon grabbed his arm to prevent him from picking up a memory card believed to contain surveillance video of Findlay’s admission of trespassing.

Indiana Supreme Court
Robert Bowen v. State of Indiana
08S02-1306-CR-423
Criminal. Affirms Court of Appeals ruling affirming Bowen’s convictions of and 14-year sentence for Class B felony unlawful possession of a firearm by a serious violent felon, Class C felony dealing in a schedule IV controlled substance, Class D felony possession of a controlled substance and Class A misdemeanor possession of marijuana. The justices remanded, though, with instructions for the trial court to issue an amended sentencing order that included a reasonably detailed recitation of the trial court’s reasons for imposing a consecutive sentence on a single charge.

Indiana Court of Appeals
Serafin Sanchez v. State of Indiana (NFP)
49A04-1206-CR-318
Criminal. Affirms in a divided opinion the jury convictions of two counts of murder over Sanchez’s insanity defense. Chief Judge Margret Robb dissented, arguing that a jury instruction erroneously raised the burden of proof for the insanity defense from a preponderance of the evidence to beyond a reasonable doubt.

Reggie T. Johnson v. State of Indiana (NFP)
18A04-1211-CR-569
Criminal. Affirms convictions of Class C felony possession of a controlled substance and Class A misdemeanor possession of marijuana.  

Jimmy D. Jones v. State of Indiana (NFP)

49A04-1204-PC-196
Post conviction. Affirms denial of post-conviction relief from convictions of Class A felony attempted murder and carrying a handgun without a license.

Nathan Warren v. State of Indiana (NFP)

03A05-1201-CR-31
Criminal. Affirms convictions of Class C felony stalking, Class D felony stalking, and Class D felony attempted inducement of obstruction of justice. Remands for the trial court to calculate Warren’s credit for time served prior to sentencing.

Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D. (NFP)
49A02-1301-MI-13
Miscellaneous/estate. Affirms grant of summary judgment in favor of William Kleckner, M.D.

Indiana Tax Court issued no opinions by IL deadline Friday.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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