ILNews

Recent changes impact state justice system

Michael W. Hoskins
September 30, 2009
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Justice in Question

National and state advocates pushing for wrongful conviction reforms judged that Indiana was behind other jurisdictions in strengthening its justice system, but they emphasized that ongoing discussions were a good starting point for the Hoosier legal community.

But within a day in mid-September, advocates turned to a new train of thought as the state moved forward on a significant piece of reform while the prosecutor in Indiana's largest county showed the legal process can triumph over a public cry for justice.

With those two instances, experts noted that Indiana is no longer "slightly behind" but rather on pace with many jurisdictions putting reforms in place to prevent systematic criminal justice errors from happening.

"It's amazing what one vote by a court can do," said Stephen Saloom, attorney and policy director for the non-profit Innocence Project in New York. "What we've seen is an indication of how seriously Indiana takes the reforms that can increase the accuracy of the entire criminal (justice) process. This definitely changes how your state is viewed nationally."

A week earlier, Saloom and other state and national advocates described Indiana as being slightly behind for how, up to that point, it had adopted reforms for preventing wrongful convictions and improving the criminal justice system overall. Of the causes that most often contribute to wrongful convictions – eyewitness misidentifications, invalidated or improper forensic science, false confessions or admissions, and bad information from informants or snitches – Indiana had implemented only one of the five key reforms believed to help address those issues: an automatic DNA-testing statute, Indiana Code 35-38-7, which has been in effect since July 2001.

Nationally, most states had adopted those automatic DNA-testing laws while other reforms were happening sporadically; a handful had implemented DNA preservation statutes, recorded policeinterrogation rules, and eyewitnessidentification reform policies. Some have even established "innocence" commissions to study broad-based criminal justice reforms in these areas.

After about five months of consideration, the Indiana Supreme Court on Sept. 15 added a new Rule of Evidence requiring that statements obtained during police interrogations must be recorded before they can be entered into evidence in felony cases.

A three-justice majority agreed to add Indiana Rule 617, which takes effect Jan. 1, 2011. The lag time will allow Marion County's law enforcement agencies to buy necessary equipment, train officers, and implement the new policies.

Noting how electronically recorded interrogations assist courts and can be used as a potent law-enforcement tool for guilt or innocence, the new rule specifically mandates that an audio-video recording be made within a jail, law enforcement agency station house, or facility owned and operated by law enforcement.

Seven exemptions are included:

  • Statements made as part of routine processing or booking
  • Statements made when the suspect does not agree to be electronically recorded
  • When there is an equipment malfunction
  • When the interrogation takes place in another jurisdiction
  • When law enforcement officers reasonably believe the crime under investigation isn't a felony
  • The statement made is spontaneous and not in response to a question
  • Substantial exigent circumstances exist that prevent the recording

Approving justices expect the recordings will lead to fewer factual disputes in court and reduce the number of motions to suppress evidence, as well as possibly leading to more guilty pleas.

"With the foregoing considerations in mind, the Court finds that the interests of justice and sound judicial administration will be served by the adoption of a new Rule of Evidence."

Dissenting were Chief Justice Randall T. Shepard and Justice Frank Sullivan, who highlighted the Indiana law enforcement community's integrity and existing practice as reasons not to amend the rule.

"There are states where bad conduct by police or prosecutors has led to repeated injustice in the criminal process," the chief justice wrote. "Indiana has not been such a place. My assessment of the honesty and professionalism of Indiana's public safety officers leads me to conclude that today's action is not warranted."

Justice Sullivan observed that many state police agencies have already taken this initiative on their own, so the rule isn't necessary.

Research cited by the majority noted that of more than 450 law enforcement agencies surveyed and currently recording interrogations, suspects' cooperation hasn't been impacted much with the recordings.

Stephen Johnson, executive director of the Indiana Prosecuting Attorneys Council, said the new rule will not save courts time but will simply shift arguments. Johnson said he's already received calls from prosecutors who plan to do their best in implementing the rule but see a variety of issues that will likely arise.

"No longer will the inquiry be whether a suspect was afforded his constitutional rights and gave a voluntary statement," he said. "It will be whether Rule 617 was complied with in every aspect in all felony cases."

More than 300 public comments came into the court's Committee on Rules of Practice and Procedure during the March 30 to April 30 comment period. Of those, 89 comments came from law enforcement officers, 80 from the general public, 36 from prosecutors, 27 from public defenders, 61 from other attorneys, five from judges, and five from other judicial officers.

The court committee conducted several hearings on the topic and voted 5-1 not to recommend the new rule, but the divided court agreed the move was necessary.

"This is wonderful news," said attorney and law professor Fran Watson, who leads the wrongful conviction clinic at Indiana University School of Law – Indianapolis. "It's good to see that Indiana is moving forward in favor of recording these police interrogations, and this is a step toward assuring justice in the system."

Indiana Public Defender Council director Larry Landis was also pleased with the court's decision, adding the new rule largely mirrors what had been proposed.

"There's nothing like seeing or hearing the questioning, rather than having a judge or jury listen to someone describe what was said at a later time," he said. "This increases the quality of evidence overall, and it's a very significant and important step in protecting our system."

Just as important is a decision also made Sept. 15 by Marion County Prosecutor Carl Brizzi, who announced that the man accused of killing seven people in the 2006 Hamilton Avenue slayings – the city's worst mass killing in history – wouldn't face the death penalty. Brizzi said he made the decision to pursue life imprisonment without parole in part because of concerns about evidence that prosecutors have against the accused killer, Desmond Turner.

"I think this is the right decision, given the evidence that would be admissible at trial," Brizzi told media outside the court. "Our ultimate goal is to see that Mr. Turner spends the rest of his life in prison and is never free to hurt anyone else again. I think this decision will achieve that goal."

The bench trial before Marion Superior Judge Robert Altice is set to begin Oct. 12.

Hearing that news, combined with the Indiana Supreme Court's rule on recorded interrogations, gave wrongful conviction advocates positive notes to talk about.

"This is a brave decision that will not be popular with many people, but it tells of how prosecutors are being a lot more courageous and honest about the limitations that are out there," McAuliffe said. "That balances safety versus trying to prove something with a death sentence, despite the evidence. It hasn't happened as much as it should, but it did (now), and that's what we're seeing more of. We're admitting as a system that we've got some problems, but there's a way to go about justice honestly and efficiently."

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  1. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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