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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT