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Opinions March 9, 2011

March 9, 2011
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7th Circuit Court of Appeals
Peggy Abner and Linda Kendall v. Scott Memorial Hospital
10-2713
U.S. District Court, Southern District of Indiana, New Albany Division, Chief Judge Richard L. Young.
Civil. Denies motion to file an oversized brief and affirms summary judgment for Scott Memorial Hospital in a suit under the False Claims Act. Finds the appeal has no merit and the appellant’s attorney flagrantly violated the word limit for the brief.

United States of America v. Styles Taylor and Keon Thomas
05-2007, 05-2008, 09-1291
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Charles R. Norgle Sr.
Criminal. Vacates Taylor and Thomas’ convictions of murder and robbery and remands for a new trial. Accepting new, unrelated reasons extending well beyond the prosecutor’s original justification for striking an African-American juror amounts to clear error under Miller-El II, and the government’s reliance on these additional reasons raises the specter of pretext.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
David Sasser v. State of Indiana
79A04-1006-CR-457
Criminal. Reverses conviction of Class C felony failure to register as a convicted sex offender while having a prior conviction and remands for a new trial. The admission of evidence regarding Sasser’s prior convictions for failure to register was a fundamental error, but there is sufficient evidence supporting the conviction.

Jerrell D. White v. State of Indiana
15A01-1008-CR-463
Criminal. Affirms conviction of Class D felony theft and reverses conviction of Class D felony receiving stolen property for violating double jeopardy. There is insufficient evidence to support the habitual offender finding. Affirms remaining three-year sentence for theft conviction. Remands with instructions.

Thomas P. Burke v. American General Financial Services, Inc. (NFP)
29A02-1008-PL-925
Civil plenary. Affirms on interlocutory appeal the grant of a motion to appoint a receiver filed by American General Financial Services.

Joshua Murrell v. State of Indiana (NFP)
49A02-1005-CR-552
Criminal. Dismisses appeal of the denial of demand for trial setting and motion to transport defendant to Marion County Jail for purpose of trial preparation or competency evaluation, and motion for discharge under Indiana Criminal Rule 4(C).

James D. Imel, Jr. v. State of Indiana (NFP)
16A01-1009-CR-471
Criminal. Affirms conviction of and sentence for Class C felony reckless homicide.

William C. Lansford v. State of Indiana (NFP)
71A03-1004-CR-178
Criminal. Affirms conviction of Class B felony burglary.

Indiana Tax Court had posted no opinions at IL deadline.
 

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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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