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Supreme Court addresses protective orders

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The Indiana Supreme Court released two opinions today regarding the service of protective orders to respondents.

In Richard Joslyn v State of Indiana, No. 49S04-1102-CR-85, the Supreme Court held that a “minor defect in the service of a protective order was cured by (Richard) Joslyn’s statements to police and his testimony at trial.” Because of this, the court affirmed Joslyn’s convictions of Class C felony stalking and four counts of Class A misdemeanor invasion of privacy, which were all based on violations of the protective order.

In Jeffrey Tharp v. State of Indiana, No. 49S02-1005-CR-256, the court reversed Jeffrey Tharp’s conviction of invasion of privacy. In that case, the court wrote that “proof of knowledge must be beyond a reasonable doubt. The evidence of oral notice in this case, however, is insufficient to sustain Tharp’s conviction.”

Joslyn claimed he was not properly served with his protective order that had been filed by Stephanie Livingston. A deputy with the Marion County Sheriff’s Department served Joslyn with a copy of the protective order by attaching it to a door at his home. However, under Indiana Trial Rule 4.1 (B), a copy of the order was also to be sent via first class mail. There was no indication this took place.

But at trial, the court admitted a recording and transcript of Joslyn's statement to police where he stated he knew there was a restraining order and that he found it at his residence, even if he was somewhat unclear regarding the date the order was received. The incidents in question, including a note left on the front porch of the home where Livingston was staying, four broken windows to Livingston’s friend’s vehicle, and Joslyn hiding in the crawl space where Livingston lived, took place after the protective order was served.

“We agree with the Court of Appeals that Joslyn’s admission of receipt is sufficient to sustain his convictions,” wrote Chief Justice Randall T. Shepard. “As the court noted, the purpose of the Indiana Civil Protection Order Act is to promote the protection and safety of all victims of domestic violence and prevent future incidents. It would run contrary to this purpose if we were to embrace Joslyn’s contention that a defendant does not violate the criminal code because of some defect in civil process even where the court had in fact issued a protective order and the defendant in fact knew it had done so.”

Chief Justice Shepard also addressed the importance of protective orders to prevent domestic violence in the Joslyn opinion.

“The declared legislative intent that these provisions in the Code be interpreted in a way that will ‘promote the: protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and [the] prevention of future domestic and family violence,’” he wrote. “Joslyn’s proposed rule that one who acknowledges actual receipt at his home but not an additional copy by mail commits no violation would have real world implications placing far too many Hoosiers at risk of becoming a domestic violence statistic.”

In Tharp, however, it was not as clear as to whether the respondent was aware of the protective order against him.

When officers pulled Tharp’s car over during a traffic stop Feb. 16, 2009, they found the woman who filed a protection order against him on Oct. 1, 2008, Lisa Pitzer, and her daughter, among the passengers in the vehicle.

When officers ran Tharp’s information through a computer records check, they learned about the protective order, as well as the existence of an active warrant for Tharp for operating a vehicle while intoxicated, and that his license was suspended.

On Feb. 18, 2009, Pitzer filed a request for dismissal of the protective order and the court granted her request the same day.

At trial, Tharp denied he was ever served with the order or that Pitzer ever told him about it, and he denied that he told the officers that he was aware of the order. A return of service for the order indicated the service attempt had failed because he had moved.

In her testimony, Pitzer said she had told Tharp about the order when they got back together, a few months after she filed the order in October 2008. She also testified that she told him prior to the February 2009 traffic stop, but that she also thought she had the order dismissed prior to that time.

“…was there substantial evidence of probative value from which a finder of fact could find beyond a reasonable doubt that Tharp knowingly violated a protective order? We conclude that the mixed messages from Pitzer are oral notice of the type that is insufficient for a conviction. Put another way, the evidence is insufficient that Tharp received adequate notice of the protective order,” Chief Justice Shepard wrote.
 

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  1. 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

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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