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Prosecutor can’t grant use immunity to parents of injured infant

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The Indiana Supreme Court held Wednesday that a prosecutor can’t petition a court to compel a party to testify under the grant of use immunity when the party is the primary target of the investigation and has invoked his constitutional right against self-incrimination if no charges have been filed or a grand jury proceeding hasn’t been initiated.

The issue arose in In Re: Prosecutor's Subpoena Regarding S.H. and S.C.; S.H. v. State of Indiana, 73S01-1209-CR-563, in which the Shelby County Prosecutor’s Office was investigating multiple puncture wounds on the back of S.H.’s and S.C.’s newborn. S.C. gave birth to the child alone in their apartment; when S.H. returned and took the mother and child to the hospital, the staff saw the wounds. This led to an investigation and removal of the baby from her parents’ care.

The county prosecutor petitioned for subpoenas to compel the parents to testify. The day before they were set to testify, their attorney moved to quash the subpoenas under their constitutional rights against self-incrimination. The prosecutor then petitioned for grant of use immunity, which the trial court granted. The court also denied the parents’ motion to correct error, holding the authority to compel testimony through use immunity was implicit in the office of the prosecutor itself.

The Indiana Court of Appeals affirmed on other grounds, but the justices disagreed, reversing the trial court and sending the case back to Shelby Superior Court. Justice Mark Massa, writing for the court, held that the prosecutor had no statutory authority under I.C. 35-34-2 or 35-37-3 to request the grant of use immunity. These statutes allow a petition for grant of use immunity only when either a grand jury has been convened or the prosecutor has filed an indictment or information.

They also held that I.C. 33-39-1-4 doesn’t extend to a request for grant of use immunity. They rejected the state’s argument that In re Order for Indiana Bell Telephone to Disclose Records, 274 Ind. 131, 409 N.E.2d 1089 (1980), or any other precedent confers prosecutorial authority in the absence of express statutory language.

“We will not use Indiana Bell as a justification for a judicial expansion of that authority in contravention of the General Assembly’s express instructions. To do so would be an encroachment into the legislative purview incompatible with our constitutionally-mandated separation of powers,” he wrote.

“We also recognize that the General Assembly may have had good reason to restrict use immunity – a potent tool that permits courts to override an individual’s constitutional right against self-incrimination – to contexts in which there is substantial judicial oversight,” Massa continued. “Both grand jury proceedings and post-charge hearings and trials provide that oversight.”

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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