ILNews

Recent changes impact state justice system

Michael W. Hoskins
September 30, 2009
Back to TopCommentsE-mailPrintBookmark and Share
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."

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT