The Herald Bulletin, the local newspaper in Anderson, Indiana, has a story up today about a lawyer facing criminal charges for carrying a handgun into the local court house in his briefcase. The tale is unfortunate, but I bring it to your attention because of the paper’s system which permits comments from online viewers on news stories. This poor attorney is getting publicly reamed by his fellow residents. See for yourself.

One important tenet of the American criminal justice system is that individuals should not be punished for exercising their constitutional rights. To impose such a penalty, is to discourage the exercise of such rights, thereby depriving the right. The right to a trial by jury is such a right. The Sixth Amendment makes no bones about it:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

However, we who represent individuals charged with a crime will tell you that if you exercise this right, and are found guilty at a jury trial, the penalty you will face will generally be much more severe than what could be bargained for or otherwise obtained with a plea of guilty. This is justified by the claim that the increased penalty is not a punishment for exercising the right to trial by jury, but instead, the decreased penalty on a guilty plea is a “discount” of the expected penalty. To acknowledge guilt without a trial is seen as a mitigating factor, and the penalties suffered on a guilty plea are reduced accordingly.

I have met at least one judge who refused to impose a different sanction after a jury trial than other defendants received for similar offenses on a plea. After loosing a jury trial, the prosecutor asked for a year in jail for the conviction, and the judge imposed no jail time (suspended sentence) noting that this was the “standard” penalty imposed for the crime involved, and to increase the penalty for my client would penalize him for taking the case to a jury trial. But this is a rarity (he was a visiting judge and has since died in tragic circumstances).

Much more common was the result in the first jury trial I lost on a criminal case. The defendant faced a minor felony charge for theft. We tried the case and lost. The “standard” penalty for first time theft in that court was a reduction of the charge to a misdemeanor and maybe 30 days in the county jail. At sentencing, this is about what I requested, seeking to save my client from becoming a felon. The trial judge imposed the presumptive sentence on the felony charge: 1 and 1/2 years in prison.

Most judges will impose significantly harsher sentences after trial. The reason for this is clear, jury trials take a significant amount of the court’s time. You can fit an entire jury trial into a single day on a simple case, but most jury trials, even on misdemeanors, will take 2-3 days. A bench trial (trial to the judge) on a simple misdemeanor generally takes about an hour, by comparison, and most judges can knock out a guilty plea in about 10 minutes. In a busy misdemeanor court where the state is filing 75 - 100 cases each week, or more, you can easily see that the system would break down immediately if most cases were not worked out through a plea, or tried to the bench. Thus, there is a need to give people big incentives to avoid a jury trial.

I bring this issue up at this point because an attorney in Ohio has recently sued the Hamilton County Public Defender’s Office in federal court, claiming that, as less than 1% of the office’s misdemeanor cases go to jury trial, indigent defendants are suffering the loss of their right to trial by jury. This lawsuit comes on the heals of a study conducted by New York lawyer Paul Callan at the request of the local county commissioners concluded that the public defender’s office was overloaded and underfunded, putting indigent defendants at risk of wrongful conviction.

Robert Newman, the Cincinnati lawyer who filed the lawsuit in U.S. District Court was quoted as saying: “The Public Defender’s Office is acting in accordance with expediency rather than what’s best for its clients.”

Action yesterday in the Conner Prairie case that I have discussed here before. The Indianapolis Star reports today about a hearing in a Hamilton County court Monday. The Attorney General is seeking financial information about the living history museum operated by Earlham College. The college has sought to maintain control over the museum, and keep the state out of its private affairs:

Indiana law requires that information about the management of a public trust, including income and expenditures, be available to the public.

But Earlham officials believe those three gifts are endowments and therefore don’t fall under the state’s trust code. If the judge agrees, the school wouldn’t have to provide the accounting the code requires or comply with its other provisions.

In Indiana, unless the parents of a child have “joint legal custody,” the parent awarded custody of the child has the right to determine the religious upbringing of the child. This provision of law does not generally generate much controversy, but it is easy to imagine situations where it would. The Indiana Court of Appeals was recently asked to look over just such a sticky situation. The mother has custody, the father visitation rights. The mother is a Jehovah’s Witness, while the father is not, and the mother has chosen to bring the child up as a Jehovah’s Witness. Mother asked the court to impose limits on father’s activities with the child when the child was in his care, such as not celebrating Halloween, not engaging in giving or receiving gifts, and not having access with the child on Christmas eve or day. The trial court agreed and imposed the restrictions. The appellate court noted:

A non-custodial parent may not impose that parent’s own religious views on the child, and the custodial parent’s right to choose religious training is paramount so long as the training does not unreasonably interfere with the non-custodial parent’s right to parenting time. For instance, as long as the interference is reasonable, the non-custodial parent can be required to transport the child to religious events. However, when such interferences are unreasonable or when the custodial parent is using religion to interfere with the noncustodial parent’s parenting time, the court will not alter the parenting time schedule. We have explained that the custodial parent’s right to determine the child’s religious training can be limited only upon motion of the non-custodial parent demonstrating that the child’s physical health or emotional development would be significantly impaired unless the custodial parent’s rights were limited. [citations omitted]

This conflict arose out of a out-of-wedlock birth. In my experience, paternity cases are much more likely to generate these types of conflicts than marriages, people these days having different standards for marriage vs. “hooking up.” The court did not have a real issue because it came down on the side of the custodial parent, but there is a real issue with the process the court is following here. The Court sniffed over the limits emanating from the mother’s Jehovah’s Witness faith and determined them “reasonable.” Does the court really want to apply this reasonableness test to other faiths?

I noted earlier that pets are generally seen as just another item of personal property to be distributed in a divorce. A legal view that fails to account for the prominent role pets have come to play in the emotional lives of some people today. I think that there will come a time when pets are treated more like children and less like property in a divorce. I say this based on the strong feelings I have encountered about pets, not only from clients and parties, but also from judges, attorneys and others in the “system.”

I once was involved in a divorce where an angry spouse liquidated the bulk of the parties’ personal property (garage sales, flea markets, etc.), contrary to a restraining order. The trouble with this type of malfeasance is determining the penalty. Personal property never amounts to much in the way of value. Used stuff does not have much value in our society. The judge was predictably unmoved by the spouse’s misdeeds, until we got to the parties’ dog. The angry spouse took the dog to the pound while the divorce was pending. My client was crushed and we never could track the dog down. The judge was furious, calling the action cruel and heartless.

Keeping up with this trend, the Stark County Law Library Blawg (always an excellent site), points today to a story from Canada where a judge ordered the husband in a divorce to pay $200 per month to his divorcing wife for the upkeep of Crunchy, a St. Bernard. The article concludes:

But U.S. courts are increasingly ruling pets are more akin to children. American judges have begun to rule on joint custody, visitation rights and support payments.

The result is a whole new branch of litigation and legal websites dedicated to fighting for the rights of a pet in the event of a divorce.

I have not found too many court decision to back up these claims, and if the websites are out there, I would sure like to find them . . . .

The city of Muncie, Indiana runs a campground outside of town, and after complaints, the city sought to clean it up a little. One aspect the city wanted to remove was the flying of the Confederate flag by longtime users of the camp. The Indianapolis Star reports today:

The city created the ban on all flags except the American and POW/MIA flags at the Prairie Creek Reservoir campground in response to complaints that it has become a taxpayer-subsidized, semi-permanent trailer park nicknamed “Springerville” after the Jerry Springer television show.

One of the longtime users and flyers of the Confederate flag, Tommy Wallace (known as the “mayor” of “Springerville”) has now filed suit (with the help of the Indiana Civil Liberties Union) in US District Court in Indianapolis, asserting that the ban violates his First Amendment Right to freedom of speech. I think this ban will be short lived.

A worth noting comment for fellow Hoosiers:

From a Letter to the Editor from State Auditor Connie Nass (R): “One month ago, I reported that Indiana ended the 2004 fiscal year with a ‘Surplus’ of $505.2 million on June 30, 2004. I also pointed out that the ‘Surplus’ was truly a one-night-only event because it was not possible without the delay of payments to schools, colleges, universities and local governments and a $50 million no-interest loan from the Public Deposit Insurance Fund. Taking those factors into account, Indiana government’s ‘Surplus’ on June 30, 2004, was $256.9 million in the red. Figures are now available for the end of July, just one month into the fiscal year. Following a $505.2 million Surplus on June 30, the total balance in Indiana’s Surplus accounts on July 31, 2004, was a negative $1,024,289,235.18. That’s right, Indiana government’s operating accounts stand more than $1 billion in the hole. And that’s where Indiana government has ended each month since July 2001, with the exceptions of September 2001 and each June 30 thereafter, when through the use of payment delays, transfers, and loans Indiana government has propped up its bottom line for one-night only. By the way, don’t let anyone who hears these facts tell you it’s just ‘talking Indiana down.’ It is not. The ‘Surplus’ figure is a measure of Indiana government and its operating revenues and expenditures, not Indiana as a whole. It tells you how well those charged with running Indiana government handle your state government’s finances. Many Hoosier businesses are doing well. Others are not. That’s not what the ‘Surplus’ measures. The ‘Surplus’ measures how well Indiana State government is managing itself. You be the judge.”

Via Ed Feigenbaum at Indiana Daily Insight