Lawyers are often accused of being stodgy, and certainly most lawyers are slow to take up new technologies. The practice of law itself, however, is seldom static. Clients and opponents do things and end up in situations that no one heard of before. This requires your average lawyer to be fairly quick of mind to keep on top of things. The single biggest source of eccentricity in the practice of law is your local state legislature. I am not sure what happens to these seemingly rational people when they get to the state capital, but judging from the end product, I am often led to believe that they become babbling idiots.

The motivation of the Indiana legislature are hard to determine. Often the legislature is led to draft laws that benefit one group over others. Sometimes it appears that the legislature did not understand the law they passed. It appears that the easiest way to get something passed is to tear out a terrible story from a newspaper and collect the quick knee jerk vote.

One legislator, driving home, was offended when the driver of a car in front of him tossed out a lit cigarette. So angered, the next session saw the legislature pass this:

IC 35-45-3-3 Throwing burning material from a moving motor vehicle

Sec. 3. A person who throws from a moving motor vehicle:

(1) a lighted cigarette, cigar, or match; or

(2) other burning material; commits a Class A infraction.

The fact that littering was already a Class B Infraction, and most litterers (as well as most citizens) would be hard pressed to tell you the difference between a Class A and Class B infraction, did not keep this provision from adding another page to the already bloated Indiana Code.

The frustrating aspect of this is that the legislature ducks and dodges real issues confronting the state. Issues that would require true debate and consideration require the expenditure of time and political capital. Today I discovered that the Indiana Court of Appeals agrees with me:

When female partners in Indiana agree to conceive a child through artificial insemination, both partners are the legal parents, according to a groundbreaking decision this week by the Indiana Court of Appeals.

The court also chided state lawmakers for being slow to deal with advances in reproductive technology, urging the legislature to address the “current social reality” of unconventional families.

“No (legitimate) reason exists to provide the children born to lesbian parents through the use of reproductive technology with less security and protection than that given to children born to heterosexual parents through artificial insemination,” Judge Ezra H. Friedlander wrote in the ruling issued Wednesday.

“Our paramount concern should be with the effect of our laws on the reality of children’s lives,” according to the ruling, which was unanimous.

Many people will see this decision as activist judges continuing the erosion of traditional family values. In fact the Star quoted Micah Clark of the American Family Association of Indiana as saying “Once you go beyond a man and a woman, there is no stopping point. The court is creating a new family that the legislature never intended to exist.”

But this is off base. First, anyone with long term experience with Indiana appellate judges will tell you that “activist” is not a commonly used adjective. Second, the point the court is making is that technology and people are moving in new directions, and they will continue to come to the courts to resolve disputes that will result. Courts are stuck making ad hoc determinations because the legislature is stuck regulating “traditional” families.

Read the coverage from the Indianapolis Star here.

Read the case itself here.

Some aspects of the justice system offer endless amounts of consternation. Much frustration comes from the great amount of time the system takes from the original presentation of an issue to the final resolution. A client comes into the office and states that they have been harmed and want to be made whole. They want a remedy and they want it now. Their attorney will have to tell them that in most circumstances, litigation can take several months if not several years to reach a conclusion: Entering into litigation is not an emotional issue, it is practical.

If both sides of the case have the interests (and the money), the case can stretch from the trial court, to the court of appeals, to the state supreme court, and maybe beyond, with each step taking several months to complete. Reading reports of United States Supreme Court, you quickly discover that the issues at hand often occurred 4 or 5 years earlier.

There are exceptions, and a recent development in the Conner Prairie-Earlham College dispute ( Which I have covered before: see this link) reflects one of them. Often, the case in the trial court is premised on an initial legal determination that will structure the entire course of proceedings at that level. On appeal, if the appellate court finds that initial legal determination to be in error, the entire process at the trial court level, from discovery, through trial, will have been effectively wasted, and the parties may very well have to start the process over again.

There is a process, called an interlocutory appeal, whereby a party can present this initial legal determination to the court of appeals immediately. This is what the judge in the Earlham case has decided to permit:

“Earlham believes that the resolution of the key legal questions will either shorten or eliminate any need for further proceedings in the trial court with respect to the three stock gifts,” Earlham spokesman Lou Gerig said Monday.

Earlham and its attorneys contend the gifts of Eli Lilly and Co. stock worth an estimated $150 million were intended not only to fund Conner Prairie operations but also to benefit the college. They regard the gifts as restricted endowments that require no public accounting and no guarantee of exclusive use by Conner Prairie.

Link, from the Indianapolis Star.

Coverage from the local paper can be found here.

I have discussed earlier in this space the great difficulty facing a community when the state seeks the death penalty in a criminal case. In the case I discussed earlier, the state dropped the death penalty under a plea after the county had to borrow $500,000.00 from the road repair fund to finance the prosecution.

Now another local county is facing a financial crisis due to a death penalty case:

Madison County’s fiscal problems could have an impact on the death penalty case filed earlier this year against Fredrick Baer, accused of slashing the throats of a Lapel mother and her daughter.

Baer’s attorney, Doug Long, filed a motion to dismiss the death sentence request against Baer in Madison Superior Court 1 because the county has not been paying claims submitted by the defense team.

The financial impact on these cases can be seen in comments of the prosecutor:

Madison County Prosecutor Rodney Cummings said the financial situation is a concern.

“Unfortunately, we have to consider it,” Cummings said. “I don’t think we should determine if a person should be executed based on whether or not we can afford it.”

Cummings has not requested the death penalty in other cases because the outcome was in question.

“We can’t take the risk of wasting $500,000,” he said. “I have given some thought to this. We need to hear from the people who manage the money whether or not to go forward

Full story from the Anderson Herald Bulletin.

The Munster Times of Indiana reported yesterday about a group of local government officials trying to deal with the trend of people coming in and using a scanner to take away copies of government documents. Link.

Now the documents in question are accessible to the public. You can walk in and view them for free, but if you want a copy they will charge you a fee. The government officials were noting that people coming in with portable scanners were taking away copies without having to pay. Most of the officials quoted in the article were inclined to impose a fee for scanning the documents, and one official was outraged that the scanning would be permitted.

Now I understand the need for the copying charge: the government has to maintain a copier and incurs expenses in making copies. Plus, copying documents for the public takes the time of busy government staff. I often think the $1.00 per page charge (or more) is outrageous, but I understand the fee. What I do not understand is if I can view a document for free, what is the justification for charging for a scan of the document?

Fee aside, Commissioner John Fladeland said he had no idea people could come in and scan documents.

“I can’t get used to the idea of someone coming into the department to scan,” he said. “No one should be able to do that whether it’s in a controlled environment or not. I don’t think anyone should be allowed to come into the department and scan documents.”

Who does he think these documents belong to? Who does this guy work for?

Thanks to the Indiana Law Blog for the link.

I have discussed the recent trend of states posting the names, pictures and location of people convicted of sex-related offenses on the Internet in the past. Now the trend has moved on to “deadbeat dads” in Indiana thanks to the Indiana Family and Social Services Administration: They have now posted their “most wanted list” on the net. Link. Thanks to the Indiana Law Blog for the pointer. I say “deadbeat dads,” but obviously moms can fall behind in their support payments, but so far, everyone posted is male.

Be sure to check the list before deciding to have a child with someone . . . .

Representing people charged with criminal offenses is often an unpopular vocation. Often, you will be the only one standing by someone who is hated by the public, the police, and even the justice system itself. You will be challenged and questioned about your motives, and even your friends and family will at times wonder why you represent “a guy like that.”

There is often a lot of pressure on criminal defense attorneys to “back off.” Despite the oath we all took to zealously represent all of our clients, people get offended when you stand up for who they believe to be the wrong guy.

Thomas William Mote II, 28, was sent to the Orange County Jail by Circuit Judge Richard Conrad.

That’s the story from the Tallahassee Democrat. Mote is a public defender who started a criminal trial this week and ended up drawing a 10 day term in jail for direct contempt of court. Apparently he saw it coming because he told his father earlier “I’m taking my toothbrush to work. I know this judge is out to do something.” I have to have respect for a person who takes their job so seriously, that they are willing to risk their own liberty and wellbeing to do the job well.

Thank to Skelley for the link (Arbitrary and Capricious).

From the Star:

Woodward, who had been staying with friends in Bloomington, went out drinking with them Saturday night and then told them he wanted to drive home to Indianapolis, police said. One of the friends tried to take Woodward’s car keys but grabbed the wrong ones, according to police.

Woodward got in his car and started backing out of the driveway, but his friend’s car was blocking his way. The friend then retrieved a 9 mm handgun and shot out both left-side tires on Woodward’s car, police said.

While I am on the subject, here are a couple of good links on OWI:

True Believer: Breaking OWI news around the country.

DUIBlog: A defense attorney’s perspective on the state of the law in OWI. Lots of good stuff from the other side of the fence.

I have to admit, my concept of county law libraries has been formed by exposure to a very limited sample. In most counties, the library is seldom more than a small room in the courthouse where you can generally find the Indiana code and cases. My local library, here in Wayne County, is actually one of the most extensive I have seen. Or, at least it used to be. When I got out of law school, the local library had four rooms with all the regional reporters, all the federal reporters, plus the Indiana and US Codes, plus all the A.L.R’s, and lots of other secondary material. Recently, most of the book subscriptions have been terminated, leaving the bulk of the library with little more than decaying pulp. The replacement is a pair of computer terminals with Westlaw access, but not full access, just the federal and Indiana materials are on the plan.

I seldom use county law libraries, typically only when I am in trial and need to check on something fast.

I do not know what is going on in Stark County, Ohio. Maybe every county in Ohio has a well run and well funded law library, or maybe the folks in Canton are just made of different stuff. Whatever the cause, I am truly impressed by the Stark County Law Library. Introduced to me through its excellent blog. I check the blog daily, and I am often rewarded with relevant and needed links and insight.

Yesterday, they pointed me to Child Support Guidelines.com, a great site where different guidelines from around the nation are compiled, and links to online calculators are provided. This is a great help to those trying to figure out where to file a divorce.

Today was no exception. They linked to a Kansas City Star piece by Edward Humes of The Orange County Register on the current status of fingerprint identification. The piece focuses on Simon Cole, a social sciences professor at the University of California, Irvine, who has been a driving force behind the move to reexamine this “science:”

Cole’s consuming interest in fingerprint evidence developed five years ago, the inadvertent consequence of a study he conducted at Rutgers University in New Jersey. He had been investigating why jurors, lawyers and judges found fingerprint examiners with only a few months of training so overwhelmingly credible, while DNA experts with far more impressive training were being picked apart on the stand. “I found that you just couldn’t do that with fingerprint examiners,” Cole recalls. “They were essentially unassailable.”

At the time, Cole chalked this up to the clever way fingerprint images are used in court: The experts would show jurors blow-ups of the fingerprints and point out similarities between a crime-scene “latent” print and an inked fingerprint from a defendant. When these similarities proved hard for a layperson to perceive - as they often are - Cole found that fingerprint examiners were adept at explaining this away by asserting that only a trained expert could make such determinations.

“It was a Catch-22,” Cole says. “Whether you see a similarity or not, the fingerprint examiner has an explanation for why it’s a match.”

. . . .

Several recent fingerprint blunders seem to bolster Cole’s position. Richard Jackson of Upper Darby, Pa., was sentenced to life without parole and served two years before his lawyers convinced a judge that local police had mistakenly matched his fingerprints to the killer’s. A re-examination exonerated him, but two of the three police experts who made the error and verified one another’s erroneous matches are still doing fingerprint analysis.

In Boston, Stephan Cowans was released earlier this year after serving seven years in prison for shooting a police officer. He was convicted based on fingerprint evidence that had been reviewed by at least two police analysts. Later, DNA testing exonerated him. A re-examination of the fingerprint once again showed there was no match, despite the verification procedures.

The Cowans case was soon followed by the arrest of attorney Mayfield in connection with the Madrid bombing, after three senior FBI examiners, the most highly trained fingerprint experts in the country, mistakenly declared his prints a match to the bomb suspect’s partial, blurred latent print.

The error was compounded when a nationally renowned fingerprint expert hired by the defense also found that Mayfield’s prints matched the bomber’s. The match, then, was verified four times - incorrectly.

The error might never have been detected at all if the bombing occurred in this country, Cole argues.

Link (requires free subscription).

Whatever your political leanings, this particular electoral season has offered a lot to be upset about. With all the lawsuits, lawyers rushing around getting ready for a fight, political games, claims and counter claims, the entire process looks like a mess. My general response is that this is just politics and politics is messy. But in the midsts of this, I wonder if this country’s political system ever were to fall apart, would the beginning of its decline look any different than this.

Excellent coverage of the election issues brewing in Indiana can be found over at the Indiana Law Blog.

Jim Kunstler has achieved a good degree of reflection in a post today on his site, and it is worth a read:

Our worship of technology (and cluelessness about its diminishing returns) has led us to ‘fix’ a voting system that wasn’t broken, and that will lead us to election results that we do not trust — to be arbitrated by lawyers. Shakespeare was onto something essential about politics when he has a character in Henry VI say, “First. . . kill all the lawyers.”