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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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