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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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