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Signs of dissent in retention vote

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“We hold that there is no right to reasonably resist unlawful entry by police officers.”

retention2-1col.jpg

Those words written by Justice Steven David in the 3-2 majority opinion in Richard L. Barnes v. State of Indiana last year created a groundswell of opposition and protests at the Statehouse. For some, the bitterness has lingered as an outspoken, albeit unorganized, effort to remove David in a retention vote on Nov. 6.

Retention1-15col.jpg Printed signs opposing the retention of Indiana Supreme Court Justice Steven David are connected with a website maintained by the Indianapolis Tea Party (top), while some angered by his opinion in Barnes v. State of Indiana have made their own signs to express displeasure. (Photos submitted)

David said in an interview that the Barnes decision had been mischaracterized, that the court had revisited its decision, and that coupled with a subsequent state law that said a right to reasonably resist unlawful arrest does exist, the original decision was “not relevant anymore.”

“It’s important to look at a person’s body of work rather than one decision,” said David, who noted taking part in more than 150 Indiana Supreme Court decisions since his appointment in October 2010, more than 30 of which he wrote.

“If somebody feels strongly that they don’t like the decision, I would defend until my death their right to have that opinion,” he said. “As painful as that may be personally, that is who we are” as a country.

Opposition to David’s retention has raised the profile of judicial retention questions this election season. David recently took the unusual step of setting up a website, justicestevendavid.com, after the Judicial Qualification Commission authorized it. Appellate judges typically may not campaign unless they face active, organized opposition.

Despite the opposition, history is on David’s side. Since Indiana adopted a merit system for appellate judges in 1970, none has lost a retention question. In recent years, votes in favor of retention typically have exceeded 70 percent.

Those against David’s retention include tea party and libertarian activists. There are Facebook pages against retention. Pamphlets urging “no” votes have circulated at gun shows. Printed yard signs with the slogan “This is My House” urge a vote against retention and advertise a website that redirects to a site for the Indianapolis Tea Party, where the Barnes decision is discussed at length. Emails to the contacts provided on that site were returned as undeliverable.

James Bratten of Evansville is Indiana coordinator for Tea Party Patriots, an affiliation of about 3,500 groups nationwide. “We stand on the Fourth

Amendment,” he said. “We would have to make a decision to come down on the side of the Constitution and not on the side of the judge.

david David

“There are lines you do not cross and there are places you don’t go,” he said. “People don’t like judicial activism.”

Indianapolis blogger Roberta X describes her politics as “libertarian verging on anarcho-capitalist,” and wrote that David’s Barnes ruling “spits in the face of the Fourth Amendment,” and the ruling merits his removal.

But Valparaiso University School of Law Professor Bruce Berner, who has written extensively on Fourth Amendment issues, said efforts to remove David as a result of the Barnes decision overreact. He said the case isn’t really a Fourth Amendment case, but rather one that tested a person’s right to “self-help” when an agent of the state conducts an unlawful search.

Barnes, he said, put Indiana in line with roughly 40 other states that follow the Model Penal Code, and that someone who is subject to unlawful search and seizure has redress in court, including award of attorney fees.

“These are highly charged situations,” he said of resisting searches. At least one party, and often both parties, are armed. “The citizen very often does not have access to the information the police officer has access to.”

Meanwhile, a former Valpo student of Berner’s, Justice Robert Rucker, the lone Democratic appointee on the court, also is on the retention ballot and coincidentally wrote the dissent in the original Barnes case in which Justice Brent Dickson concurred. Rucker wrote, “It is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection.”

Rucker’s choice

For several months, Rucker, the second-most-senior justice, deliberated whether he would stand for retention. As the deadline neared in July, he said he even changed his mind on the day he formally decided he would seek reappointment to a term that would run close to the mandatory retirement age of 75.

“I guess I’m what one might call an old-school traditionalist. I’ve always been of the notion that when you turn 65, you retire,” Rucker said in an interview. Turns out he wasn’t ready for that and wasn’t quite sure how he’d fill his days.

“There’s really nothing I like doing better than what I do right now for five days a week,” he said. “I couldn’t figure out a good reason not to serve.”

Also in Rucker’s consideration was the transition on the court. Had he retired, four of five justices would have had less than two-and-a-half years experience on the high court. He was concerned about a potential shortage of institutional knowledge.

judges-facts.jpg“Things like that are pretty important,” he said.

Appeal to voters

While appellate judges typically can’t mount campaigns for retention, Court of Appeals judges have found ways to get their work known.

Judge Nancy Vaidik is the only judge on the court whose name will appear on the retention ballot statewide. She said she’s made an effort to hear more cases on the road through the Appeals on Wheels program.

“We do feel it’s very important for people to make informed decisions regarding their votes,” Vaidik said. “The few things we can do, we try to do.”

Vaidik said she also visits with editorial boards of newspapers that have broad reach.

Judge John Baker, on the ballot in the COA First District, said the Appeals on Wheels program gives judges an opportunity to hear cases in their districts.

“We let those standing for retention raise their hand first for those only if it’s in the district where they’re running,” Baker said.

The experience of other states where big money has influenced judicial elections should make Hoosiers grateful the judiciary remains independent through a merit and retention system, he added.

“Do we want (judges) to be politicians in robes? I think not,” Baker said. “People vote yes unless they have a reason not to.”

Judge Paul Mathias agreed Appeals on Wheels is among the best ways for COA judges to show people in person the work of the court. “During a retention year, I try especially hard to organize my schedule so that I can satisfy oral argument requests from the Third District.”

Baker, Mathias and Vaidik also pointed to the Indiana state court administration retention website, which provides information on appellate judges, and their opinions.

“Sometimes citizens judge a judge on the basis of a single opinion as it is reported by the media, but the full body of a judge’s work is far more important,” Mathias said.

Court of Appeals Judge Michael Barnes is also on the ballot in the Third District.•
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  • oops
    Rucker, not Riker
  • Uphold the Constitution
    I thought every Justice sworn in swears to "uphold the Constitution" ... There's a reason it's the JUDICIAL branch---judges are supposed to judge. Legislative branch is for the house/senate. Duh, didn't every 3rd grader learn that? Apparently Justice Steven David didn't learn that. Hats off to Justice Riker!
    • fox/henhouse
      So, people who have been subjected to an illegal search can seek "redress in court"? In which one arm of the government will pass judgement on another? And when that judgement is that the police "followed procedure", what redress is then available for the damages, the emotional upset, the dead pets? I don't care whether procedures were followed in a illegal act; I do not see a major difference between a gang of thieves or a gang of police performing an armed, illegal entry. Except the police are better armed and can escape punishment even if identified.
    • BS
      Does anyone in government or the judicial system have enough brains to translate unlawful? If not I will help you, unlawful means illegal, violation of law! So are we reasonably supposed to expect the police that are supposed to enforce the law, break the law perform unlawful seaches. Read enough about law and you will believe as I do and that most of it since the framing of the constitution was written bny morons!!!

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    1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

    2. This guy sounds like the classic molester/manipulator.

    3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

    4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

    5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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