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In re D.M., 45A05-0905-JV-239

5th Dist., 06-10-09, Ind.App. 907 N.E.2d 582

Attorney: Elizabeth G. Tegarden

Holding: In expedited interlocutory appeal pursuant to Appellate Rule 14.1, Indiana Department of Child Services (IDCS) challenged trial court’s modified dispositional order placing D.M., a juvenile adjudicated to be delinquent, in an out-of-state shelter care facility against the recommendation of IDCS. Court affirmed trial court’s finding that IDCS’s recommendation to place D.M. in Indiana residential treatment facility was “unreasonable based on the facts and circumstances of the case, and/or are contrary to the welfare or the best interests of the child.” I.C. 31-37-19-3 provides that a trial court may not place a delinquent child in a home or facility that is not a secure detention facility and is located outside Indiana unless court makes written findings, based on clear and convincing evidence, that the “out-of-state placement is appropriate because there is not a comparable facility with adequate services located in Indiana….”

Here, clear and convincing evidence supported trial court’s findings that: 1) Nevada facility offers vocational, educational and athletic services more compatible to meet D.M.’s needs; 2) facility offers family counseling through satellite conferences which is needed for success and progress of D.M. D.M.’s probation officer testified that IDCS’s placement recommendation was more expensive and not comparable to Nevada’s facility. D.M. and his mother both testified that they preferred Nevada facility, as they felt it would better address D.M.’s academic and athletic needs. IDCS failed to specifically identify how trial court’s findings lack supporting evidence, or how these findings, in turn, do not support trial court’s ultimate decision to place D.M. in Nevada facility. Held, judgment affirmed.

Friday, July 31st, 2009 | Posted in Uncategorized | No Comments »

Vermont v. Brillon, 08-88

03-09-09, U.S.

Holding: The Vermont Supreme Court erred in finding that a three-year delay between charges and trial violated the Sixth Amendment. Some of the facts a court should weigh when determining whether there has been a speedy trial violation are the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. When considering the reason for a delay, assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. Because the attorney is the defendant’s agent when acting, or failing to act, in furtherance of the litigation, delay caused by the defendant’s counsel is also charged against the defendant. Assigned counsel are generally not state actors for purposes of a speedy-trial claim. The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic breakdown in the public defender system could be charged to the State. Moreover, time gaps resulting from the trial court’s failure to appoint replacement counsel with dispatch may be attributable to the State.

Here, it took three years to bring Defendant to trial after being charged. During this time, at least six different attorneys were appointed to represent Defendant. The Vermont Supreme Court found the delay during the representation by the first two public defenders was attributable to Defendant who “fired” the first attorney and threatened to kill the second. However, the Vermont Supreme Court found that most of the delay after the first two attorneys was caused by the subsequent public defenders failing to move the case forward. The Vermont Supreme Court made a fundamental error in attributing to the State delays caused by the failure of several assigned counsel to move the case forward and in failing adequately to take into account the role of Defendant’s disruptive behavior in the overall balance. The period of each counsel’s representation should not have been treated discretely. Absent Defendant’s deliberate efforts to force the withdrawal of his first two public defenders, no speedy-trial issue would have arisen. Thus, the effect of the earlier events should have been factored into the court’s analysis of subsequent delay. Moreover, the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in this case. Held, judgment of Vermont Supreme Court reversed; Breyer and Stevens, JJ., dissenting on basis that cert. was granted improvidently because the Vermont Supreme Court’s decision could be read attributing the delays to the defender general’s office for not properly assigning counsel rather than to counsel for failing to move the case forward.

Monday, April 27th, 2009 | Posted in Uncategorized | No Comments »

People vs. Hector Espino, NA076620

March 18, 2009

Attorney Jennifer Friedman

A California Judge made an oral ruling that LCN (Low Count Number) DNA analysis results were inadmissible due to the fact that there is no general acceptance in the scientific community as to the procedures to be employed, the interpretation of results, and the statistics that can be applied to such results. The Judge noted that DNA analysis as a whole could be compromised if the accuracy of LCN DNA analysis was prematurely adopted.

(LCN DNA analysis is used where the sample of DNA material is too small to be analyzed using more traditional methods. It involves the multiplication of available DNA to create enough copies to be analyzed).

Wednesday, March 25th, 2009 | Posted in Uncategorized | No Comments »

Amos v. State, 49A02-0803-CR-229

2nd Dist., 11-25-08, Ind.App.

Attorney: Ellen O’Connor

Holding: Trial court did not abuse its discretion in admitting a victim’s statement under the present sense impression hearsay exception. Indiana Rule of Evidence 803(1) allows into evidence a statement that describes or explains the event or condition during or immediately after its occurrence if it is based upon the declarant’s perception of the event. Here, the victim’s sister testified that while she was talking on the phone with the victim, the victim put her on hold and answered another call. Upon the victim returning to the conversation, the sister asked “who was that” to which the victim responded “Amos,” who is the Defendant. The sister then asked “what did he want” to which the victim responded he said “he wanted some money” and if she did not give him money, he was going to kill her. The victim was describing to her sister an event, i.e., a cell phone conversation between herself and Defendant, immediately after the event. Moreover, the victim perceived the event. Thus, the victim’s statements were admissible as a present sense impression. Even if the victim’s statements at the end of the conversation that she was not going to let anyone in her home that night were inadmissible hearsay, their admission was harmless being that there was other evidence of forced entry. Held, judgment affirmed; Crone, J., concurring on basis that Defendant did not object to the victim’s statements at trial and thus waived any error.

Wednesday, February 25th, 2009 | Posted in Uncategorized | No Comments »