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7th Circuit blasts lawyers in reinstating malicious prosecution suit

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A man wrongly prosecuted, convicted and imprisoned for the arson of Frankton High School more than 10 year ago was ultimately freed, but the 7th Circuit Court of Appeals Tuesday blistered attorneys in a subsequent malicious prosecution lawsuit who successfully argued in the U.S. District Court for dismissal of the man's federal complaint.

The panel reversed and remanded in Billy Julian v. Sam Hanna, et. al., 13-1203, reinstating his 42 U.S.C. § 1983 malicious prosecution suit.

In 2003, Billy Julian was convicted of arson and other crimes related to the 2001 fire at the Madison County school, and he was sentenced to 15 years in prison. During post-conviction relief, he was able to prove that a key witness who claimed he met Julian at the school before the fire actually had been on home detention and could not have been at the scene without triggering an ankle monitor, which hadn’t happened.

Julian was released in 2006, but the state sought to retry him, scheduling a retrial in 2007 while Julian was considering suing Madison County sheriff’s officer Sam Hanna and others. “The defendants threatened Julian in an effort to deter him from filing a suit for malicious prosecution,” Judge Richard Posner wrote for the panel.

The suit also names as a defendant current Frankton Police Chief David Huffman, who was a town officer at the time of Julian’s arrest. Hanna now serves as police chief in Elwood, also in Madison County.

“On the advice of lawyers whom he consulted he decided to defer filing such a suit until the judgment in his retrial ... but the trial date kept getting rescheduled.  ... In  July (2010) the state dismissed all the charges against Julian. He filed this suit in November 2011.”

The panel ruled that District Judge Tanya Walton Pratt of the Southern District of Indiana in Indianapolis wrongly dismissed Julian’s complaint with prejudice in a ruling that agreed with defendants who argued Julian’s suit was untimely. “But she was mistaken,” Posner wrote. “Under both state and federal law a malicious prosecution claim does not accrue until the criminal proceeding that gave rise to it ends in the claimant’s favor.”

Julian’s claim therefore was timely, the panel held in an opinion that also took to task arguments proffered by the defense. The defense argued Julian had remedies in state court for false arrest and false imprisonment, but the panel held these were inadequate remedies because the state held out the possibility of retrying him for years.

“After being released from prison in May 2006, Julian remained in limbo for more than four years. Limbo is not as bad as hell, but it’s sufficiently bad that it can’t be written off completely,” Posner wrote. “Yet that is what the defendants ask us to do: recognize no remedy for malicious prosecution by Indiana public officers, leaving the defendant remediless if he manages to avoid jail or prison for any of the time for which he’s maliciously prosecuted.”

“Defense counsel exceeded the bounds of responsible advocacy by arguing … that because the absolute immunity from suits against state officers for malicious prosecution was decreed by the Indiana legislature, it satisfies due process — ‘legislative due process’ — and therefore bars this suit,” Posner wrote. “Were that correct it would mean that the Indiana legislature, provided only that it complied with its procedures governing legislative enactment, could with impunity strip residents of Indiana of all their federal and state constitutional rights.

“In holding that Indiana’s failure to provide an adequate remedy for malicious prosecution by public officers opens the door to federal malicious prosecution suits against such officers, we don’t mean to belittle the state’s interest in limiting officers’ liability,” the panel held, noting several states have enacted caps in such cases.

“A qualified immunity would not protect the deliberately wrongful (indeed outrageous) conduct alleged in Julian’s complaint.”
 

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  • Better
    And here is yet more commentary, from respected lawyer Gary Welch, on the crisis of justice in this legal banana republic: "that's not the case in this county and this state where two forms of justice exist: one for the ruling elites where the law is always a moving target and another for the rest of us serfs where the law is always firmly written in stone" Read in context at: http://www.advanceindiana.com/
  • Responsible journalism?
    It seems that the comments section of this website is managed so that comments that the PTB do not want to see highlighted are buried. Sad.
  • 7th got this one right
    As a fourth generation Indiana lawyer, three of which before me were from Madison County, I think the 7th Circuit got this one right. Reprisal and revenge are a big deal in Madison County so I won't name names. You saw what Hanna and his boys were trying o do here. My advice: Stay they hell AWAY from there, keep your kids the hell AWAY from there, and if you ever have a brush with the law up there, hire local counsel, but research who it is first to make sure they're connected properly.
  • SOS
    The Seventh Circuit gets it that there are massive injustices in the Indiana system. Indiana's sense of justice often fails to rise above third world status. Check out Loubser v. Thacker, which was actually a case against the Hoosier court system of former Chief Justice Randall Shepard, http://caselaw.findlaw.com/us-7th-circuit/1353347.html In Loubser, as here, the Seventh seemed incredulous as to what goes on in the courts of Indiana. Judge Pratt should not be caught up in the shell games that render justice much injustice, but in this case she was. We need a bevy of new "sheriffs" in Indiana, and the Seventh seems to get that. "Outrageous" they said. Sounds like a billion dollars in damages, plaintiff. Make them pay for their injustice system.
  • Right on!
    Good to know the 7th Circuit slapped down corrupt government officials, mean attorneys, and unjust judges.

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  1. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  2. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  3. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

  4. OK so I'll make this as short as I can. I got a call that my daughter was smoking in the bathroom only her and one other girl was questioned mind you four others left before them anyways they proceeded to interrogate my daughter about smoking and all this time I nor my parents got a phone call,they proceeded to go through her belongings and also pretty much striped searched my daughter including from what my mother said they looked at her Brest without my consent. I am furious also a couple months ago my son hurt his foot and I was never called and it got worse during the day but the way some of the teachers have been treating my kids they are not comfortable going to them because they feel like they are mean or don't care. This is unacceptable in my mind i should be able to send my kids to school without worry but now I worry how the adults there are treating them. I have a lot more but I wanted to know do I have any attempt at a lawsuit because like I said there is more that's just some of what my kids are going through. Please respond. Sincerely concerned single parent

  5. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

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