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Touched by controversy

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In the history of court controversies, a recent ruling by the Indiana Supreme Court has created public outcry and calls for change in ways that few others do.

But it’s not alone.

The courts have faced a handful of issues through the years pitting judges against public opinion, from a federal ruling on school desegregation in the 1970s to the governor criticizing a ruling that struck down the state’s voter ID law as unconstitutional in 2009. Trial and appellate judges once faced common law liens on their property from people upset about particular decisions, and the judiciary has stood up to attacks from lawmakers and residents who’ve taken issue with a holding that’s seen as “unpopular.”

What’s most rare, though, is the heated response that leads to calls for judges and justices to be removed from the bench, and it’s in those moments where the legal community can test the strengths and find the failings in the Hoosier judiciary.

“Sometimes, these things create their own vortexes of controversy,” Court of Appeals Judge John Baker said, referring to his own experience handling a controversial case in the early 1980s. “That can spin out of control very quickly for a judge or the entire court.”

He knows first-hand.

Baby Doe

While still on the Monroe Superior bench in 1982, Judge Baker took on what became known as the “Baby Doe” case involving a Bloomington baby who lived for only five days with Down syndrome and serious internal birth defects that prevented him from eating or drinking normally. The parents decided against surgery, but the hospital wanted court intervention to keep the baby alive – a parental authority issue that had never been addressed anywhere in the country. Judge Baker decided the government shouldn’t interfere with the parents’ choice based on the medical advice, and the hospital counsel failed to convince the Indiana Supreme Court to intervene.
 

courts-15col.jpg Protesters gathered at the Indiana Statehouse on May 25 to protest an Indiana Supreme Court ruling. Justice Steven David wrote the majority opinion focusing on the common law right to resist police entry into a home, leading some to call for his removal from the bench.(IL Photo/ Eric Learned)

Pro-lifers accused the judiciary of condemning the baby to die, while hundreds of calls came to judicial and state offices. Protests were staged at the Indiana Statehouse rallying for Baby Doe’s right to life. Some called Judge Baker a “baby killer,” and he considered moving his family out of Bloomington because of threats. Others labeled the baby’s death “infanticide” and accused the courts of being part of a conspiracy to further a master race and devalue the sanctity of life.

Opposition faded, but it came back in 1984 when then-Chief Justice Richard Givan faced a retention vote. A Lafayette group launched a statewide campaign with newspaper ads to oust him from the appellate post saying, “Remember Baby Doe, Retire Judge Givan.”

Though his retention number dipped slightly from the norm, the chief justice won that retention vote by a 3-1 margin.

That was the first time public reaction had led to a recall effort under the state’s retention system, but it wouldn’t be the last.

Pivarnik-Shepard

About five years later, a state justice made public accusations about one of his colleagues shortly before a retention election. That cast a cloud on the judiciary and became what some describe as the ugliest chapter in Indiana Supreme Court history. At the time, some in the legal community wondered if the court and system overall could survive the controversy.

Justice Alfred Pivarnik had lost his bid to replace outgoing Chief Justice Givan in 1987, and the Judicial Nominating Commission chose a young Justice Randall T. Shepard for that top post, even though he’d only been on the appellate bench for about 18 months.

More than a year went by and just 12 days before Chief Justice Shepard faced his first retention vote in November 1988, Justice Pivarnik publicly challenged the chief justice selection. He accused the chief justice of having a drinking problem, a history of drug use, and a “personal social problem” that Justice Pivarnik later elaborated on as homosexuality. He later alleged the governor and chief justice had covered up an investigation when Chief Justice Shepard was initially interviewed for the state bench, even though investigators and state police found no proof and had dismissed the issues. Justice Pivarnik also alleged that the chief justice often voted with partisan views when deciding high court cases.

Former Chief Justice Givan joined with Justice Pivarnik and raised questions about Chief Justice Shepard leading up to the retention vote, but the legal community supported the new chief justice and many criticized the other two justices for damaging the court’s integrity with the unsubstantiated public claims rather than addressing personality differences internally.

Chief Justice Shepard won retention, and Justice Pivarnik refused to resign despite calls that he do so. The Indiana State Bar Association in late 1988 filed a formal misconduct complaint questioning whether Justice Pivarnik and former Chief Justice Givan’s statements had violated judicial canons, and although it was ultimately dismissed without any action, it revealed a hole in state law on how justices would handle those actions if three of the five had to step aside. The court developed a plan to deal with that rare possibility, and the whole Pivarnik-Shepard controversy motivated lawmakers to change state law and open up the Judicial Nominating Commission interview process that had historically been closed.

Those on the court and in the state’s legal community worried the incident would leave the court unable to function, but instead that situation ushered in a new era of professionalism for the judiciary.

Following the Pivarnik-Shepard issue, the Indiana courts wouldn’t see another anti-retention effort of that caliber until this year.

Barnes

On May 12, a split Supreme Court issued a ruling in Richard L. Barnes v. State, No. 82S05-1007-CR-343, holding that a person must use the civil court process for redress against unlawful police action instead of trying to resist in any way. Justice Steven David wrote the decision, becoming the focal point for the public outcry that has followed.


courts03-15col.jpg (IL Photo/ Eric Learned)

National media attention zeroed in on Indiana criticizing the broad ruling, and in the week following that decision the state police were called to investigate potential threats made to the court by phone and email.

A “Stand Up for your Fourth Amendment Rights” rally drew about 300 people to the front steps of the Indiana Statehouse to protest the decision, and dozens made signs or banners displaying messages such as “Justice David is an Enemy of the Constitution” while others waved American flags and copies of the U.S. Constitution. A political action committee and a Facebook page have been created with the goal of recalling Justice David, who was appointed to the court last fall and will face an initial retention vote in 2012.

What happens next depends on the case and how long the public outcry continues.

Indiana University Maurer School of Law professor Charlie Geyh, a national expert on judicial independence, said the initial reaction could play into the final result, depending on what the court does next.

“Judges make tough decisions and this is a result of them having to make one of those on a tough issue,” he said. “If I was a member of the majority, I’d think long and hard about changing views even slightly because it might look like you’re caving because of the public response. Judicial independence could take a shot in the face even if it didn’t factor in, but it looks like it did. That puts this whole notion of rehearing in a more precarious position.”•

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  • Remember a guy named Hamilton?
    Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

    - The Federalist Papers
  • Judicial Independence? Or infallibility?
    I wonder if the editors and writers for Indiana Lawyer have ever stopped to consider that when the public responds negatively to a judge's decision, it might be because the decision is actually wrong. Judicial independence should not be interpreted as judicial infallibility. Perhaps some in the legal community need to learn the difference.
  • King John was "independent" too
    In Barnes they are taking common law rights away and the public righteously has condemned this judicial activism and abrogation of civil liberties.
  • overlooked statute must be a factor on rehearing
    It is indeed to be expected that the Justices in the Barnes majority will be reluctant to look as if they are "caving" to public pressure. However, the fact that a pertinent statute was overlooked requires reexamination of the cause, regardless of appearances.

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

  2. 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.

  3. 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

  4. 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.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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