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Panel criticizes late discovery introduction

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Even while recognizing that the state’s practice of allowing late introduction of evidence basically rewards attorneys who don’t prepare for trial, the Indiana Court of Appeals looked beyond that practice to how the rules still protect a person’s right to a fair trial.

In a unanimous ruling today, the state’s intermediate appellate court issued its decision in Richard Childress, Jr. v. State of Indiana, No. 45A03-0911-CR-520. The appeal stems from a Lake Superior case in which a jury convicted Childress of two class B felonies and robbery and criminal confinement. The sole issue in this appeal is whether the trial court erred in admitting evidence that the state didn’t disclose until the second day of trial.

At issue is how the prosecutor introduced a hooded sweatshirt, apparently worn at the time of the crime, into evidence for the first time on the second day of trial. At a bench conference, the trial court barred the state from including references to the sweatshirt in its case-in-chief but determined it could be admitted as evidence on rebuttal. Childress objected, but the court allowed the new evidence that ultimately resulted in his convictions.

The appellate panel made up of Judge Margret Robb, Patricia Riley, and Elaine Brown affirmed the convictions and determined the prosecutor’s late disclosure didn’t impair Childress’ right to a fair trial.

But most notably, the panel pointed out the nuances and intricacies in the litigation process allowing the kind of late disclosure that happened in this case.

The judges noted how the general discovery principles call for a court to strive for truth, fairness, and judicial efficiency, and that Indiana caselaw reinforces that a defendant must generally object at trial to the admission of discovery not timely disclosed. If that objection is overruled, then caselaw dictates the defendant should seek a continuance, and that continuance and evidentiary issue can be reviewed on appeal. State cases that have led to that holding are Berry v. State, 715 N.E. 2d 864, 866 (Ind. 1999) and Armstrong v. State, 499 N.E.2d 189, 191 (Ind. 1986).

“We agree with Childress’s implicit argument that this rule regrettably rewards attorneys who do not prepare by allowing admission of their untimely-produced discovery,” Judge Robb wrote for the majority. “Neither does this rule penalize the attorney who has failed to adequately investigate and prepare his or her own case or witnesses, preparation which would have led to an earlier detection of the evidence that should have been disclosed earlier. Nevertheless, we observe the wisdom of the rule as it contemplates and provides a remedy where the late disclosure has been intentional or impairs a defendant’s right to a fair trial. While the rule does not advance the practice of law toward promoting justice, it appears to allow sufficiently adequate protection of defendants’ rights to the extent courts genuinely consider whether late disclosure has impaired a defendant’s right to a fair trial. Further, we are not vested with the authority to amend this rule.”

In this case, the judges found that Childress could have requested a continuance or he could have more importantly adjusted his trial strategy going forward to counter the state’s late introduction of the sweatshirt. All of the “unfair circumstances” here could have been avoided, the panel found.

“Although we admonish the State for its failure to prepare its case to timely disclose the evidence, the late disclosure did not impair Childress’s right to a fair trial and we decline to reverse Childress’s convictions,” Judge Robb wrote.
 

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  1. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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