Recently I have taken note of unfolding events within the State of New Hampshire regarding state defense attorneys attempts to dismiss dui cases as a result of faulty officer certification processes. Although each state may have their own distinct procedures by which to lawfully certify the admissibility of breath test results, the fundamental underpinnings behind the reliability of breath alcohol testing within dui cases nationwide rests with the proper certification of breath test machinery as well as the administrators of such testing.
While I cannot claim to be an authority on New Hampshire DUI law and procedure, I can assert that the problems being exposed within that state pertaining to the viability of dui prosecutions is not isolated to New Hampshire. Over the past few decades all states in one degree or another have not been immune to significant problems as related to public confidence in the credibility of breath or blood draw test results used to criminally convict good people being accused of drunk driving offenses.
Within Indiana, crime lab flaws as to the proper safeguarding of evidence related to alleged owi test results has been a significant concern among defense attorneys seeking reliable information with which to affirm alleged misconduct; misconduct able to preclude admissibility of flawed testing bac and/or blood draw results.
Thus far, although Indiana courts have acknowledged the reality that Indiana crime lab problems may carry the potential to cast aspersions upon evidence put forth within dui prosecutions, the courts have not found sufficient cause within which to overturn a sufficient number of case convictions to carry out true reform in this area.
Indiana is not alone in its reticence to confront exposed evidentiary flaws in the way alleged credible evidence is formulated if it means the invalidation of prior dui convictions.
I suspect that the most recent media attention devoted to the complete lack of police officer compliance to certification rules within New Hampshire will soon be swept under the rug in favor of the next target of media attention.
Failure to to pay more attention to such significant acts of malfeasance threatens the credibility of the way legal prosecutions are carried out within the State of New Hampshire and throughout the nation.
To cavalierly dismiss the notion that the amount of police officials referenced who neither cared to take the time to become certified and/or re certified to administer breath tests should be an unsettling reality to all Americans traveling the nations’s roadways each and every day.
As formerly stated, New Hampshire is not alone in representing the potential arrogance among law enforcement officials confident that failure to abide by the rules of certification requirements will be overlooked by political judges.
As such too many bad police officials become emboldened and empowered by a consistent lack of accountability on the part of judicial officers; primarily state court judges not wanting to offend police unions or appear soft on crime by dismissing dui cases due to lack of foundational requirements to prove bac impairment.
In this state I have thankfully not needed to confront such police misconduct on the scale exposed within New Hampshire. I am curious to know how such procedural misconduct could be permitted to continue unabated without the universal dismissal of dui cases within pre trial procedural motions as would be done by competent attorneys within Indiana.
In the state of Indiana, if a police office officer entrusted to perform dui arrests has not been certified and re certified to perform certified breath testing within specific times periods strictly governed by procedural rules, such test results can and should be excluded from case consideration.
As a result, the impact of case dismissals prompted by a lack of certified breath test results has served to compel compliance within this state, and I choose to believe most others, in ensuring that breath test results put forward within dui prosecutions carry the base level of credibility authenticated by the proper certification of breath test machinery and officers alike.
Thereafter, attacks on the credibility of the bac results can at a minimum focus on legal procedural issues apart from the mere certification of machinery and police officers that all accused of dui crimes have the right to expect.
As I am prone to do, I will be curious to follow the emerging developments within these most recent New Hampshire legal accounts and observe to what extent significant reform will be truly implemented.
Only by focusing attention on such misconduct can public pressure be exerted to effectuate true reform within such areas of criminal justice reform.
Unfortunately, the true impediment to such corrective action inevitably comes from political leaders who simply choose to believe that the general public is without true passion to act upon such issues.
In fact, in my experience It has been true that the general public has simply never been mobilized to protest in sufficient measure in areas of criminal justice reform if it means that drunk drivers could in any way prove to benefit from such reform.
However, it is incumbent upon all leaders of good conscience to communicate the message that an allowance for law enforcement misconduct is to permit the further erosion of the criminal justice system as we know it.
Although we as citizens may look upon such news reports in our capacities as innocent bystanders, it is not at all uncommon that the cross hairs of such legal misconduct may inevitably be trained upon you or someone you care for sometime in the future.
As I have stated many times elsewhere, one of the many unique challenges in being a statewide lawyer within any legal endeavor is the reality that each and every county may have different policy stances as to legal punishment. Although the framework of the law operating in may very well be the same as all other counties within the state, the practical imposition of potential pre trial settlement options within that legal framework may differ significantly.
Within the Wayne County Superior Court 3 in Richmond, Indiana, Judge Dolehanty has put in place a program of options that serve as a base level of what the court will accept in the resolution of first offense dui cases. Under the heading of the “OWIP” program (Operating While Intoxicated Program) a very rigid criteria of obligations must be imposed upon a first time dui offender should that individual choose any and all means by which to avoid the imposition of jail time.
No matter where the individual arrested for a dui resides, the Defendant’s age or the individualized circumstances of the person sentenced, in order to participate within the program the Defendant sentenced must participate treatment on a weekly basis within Richmond, Indiana. This reality can prove quite an obstacle for out of county, much less out of state individuals who have no practical means by which to travel to Richmond on a weekly basis.
Over the course of three months participating individuals must attend at least two hours of treatment once a week within the approved Richmond facility. Should the treatment be completed successfully the period of probation formerly imposed can be terminated. Unfortunately, until such time as probation has been terminated (many times at least 180 days) the individual’s driving privileges would remain suspended. As a result, in order to reasonably be in position to consider this particular program in Richmond an individual, a) must be able to secure transportation to and from the Richmond alcohol treatment facility once a week, b) reside close enough to the Wayne County area to be able to participate in the program, c) be willing to endure a license suspension for what could amount to six months or more depending upon the time it takes within which to seek early termination of probation upon successful completion of the OWIP requirements.
For those seeking the best alternatives where participation in the Wayne County OWIP program is not feasible, there are significant pros and cons to pre trial settlement alternatives for the Richmond dui offender.
In the present best case scenario, those first time offenders who choose to put themselves in position to reinstate driving privileges far earlier than those within the OWIP program can choose to spend seven days within the Wayne County jail. Thereafter, the individual stands a good chance to avoid any remaining probationary terms altogether and as formerly stated can receive reinstatement of his or her driver’s license far quicker.
There is no, “correct” answer as to which option if more advantageous when navigating dui cases at the present time within Richmond Indiana. For some, the prospect of being able to eliminate probation (usually one year in most cases for a first time dui offense) in return for at least 7 days in jail is one of great benefit not usually available within other county jurisdictions. To others, the prospect of doing any time in jail is one to be avoided at all costs no matter how intrusive an impediment the OWIP program may be or other terms of probation may become.
As an attorney it is always my aim to seek as little ambiguity as possible as to the obligations to be imposed against one of my clients toward the successful satisfaction of any term of probation. As I have counseled to those I have helped in Richmond, it is always somewhat of a risk to leave an assessment as to satisfactory performance on probation to third parties. No matter how unreasonable such third party alcohol treatment obligations may become, neither myself, prosecutor or judge typically has much say as to adjusting the recommendations of these treatment professionals, no matter how onerous or unreasonable they may become.
The lesson to be learned is that the practice of dui defense no matter the county is always a fluid process. Different county judges even within the same county may very well have divergent policy stances toward the punishment of dui offenses. As a result, whether we choose to agree with those policy positions or not, it is incumbent upon all attorneys who endeavor to practice dui defense at the highest level to fully recognize all settlement options tailored to the relevant legal jurisdiction at hand.
The present unique standards for settlement of dui cases within Wayne County are but one of many examples illustrating the need to recognize that though laws may be the same, the successful defense of a client is often predicated upon a keen understanding as to how laws are applied within the legal venue one is working within.
Within the Indiana legislature the economic burdens of an out of control prison and jail population has become the only restraint to present criminal sentencing laws. While compassion and reason may offer the best rationale for why Indiana’s criminal punishments should offer varied alternatives to incarceration, conservative sensibilities simply do not wish for prison housing costs to reach into the pockets of eligible voters.
For years, legislators vexed with how to find creative solutions to economic problems would routinely turn to criminal legislation as a convenient and mindless means by which to justify their legislative seat. Increasing criminal sentences for all crimes has become a bipartisan exercise both on the state and national level and has thus far carried little political risk.
Without giving too much thought to the long term consequences, Indiana lawmakers have ironically incurred an unforseen political penalty they had been avoiding by causing for the increased expense of a burgeoning prison population.
Constituents who observe the liberalization of Marijuana laws nationwide and reported cases of single mothers incarcerated for drug possession offenses have begun to make their displeasure known. While I believe many in this conservative state have been spurred to action by the notion that the present penal liabilities may require additional tax obligations to Indiana voters, the increased attention to reforming our criminal laws is a needed development nonetheless.
The day of reckoning has now arrived for Indiana lawmakers where the pendulum has swung from the priority of erring on the side of incarceration to that of alternative forms of punishment. As an attorney, I harbor no illusions that lawmakers desire for rehabilitation has become the foremost priority directed toward those subject to punishment. However, within this window of opportunity myself and other Indiana lawyers eagerly await enactment of proposed new laws that will allow us to succeed in getting the rehabilitative assistance that many of our clients have needed.
A meaningful dialogue in the area of criminal rehabilitation for certain classes of offenders has been scuttled for far too long. As a result worthwhile legislation has been denied in the interest of sending messages to the general public that drug or dui offenses can best be deterred through get tough incarceration.
Not unlike many Indiana legislators stance on the present initiatives in Washington and Colorado to enact comprehensive Marijuana law reform, more “liberal” solutions to societal ills without the real threat of meaningful incarceration will continue to fall on deaf ears.
Let us hope that a more engaged majority in the Indiana legislature will utilize this opportunity to further the cause of expansive therapeutic sentencing options for those with serious alcohol or drug addictions that can negatively impact society at large.
Although the reported alterations of law tend to be focused upon felony punishment in Indiana, any solutions that can more specifically allow for a broader range of sentencing options for those convicted of crimes can only be a positive if considered with a more rehabilitative mindset. The one size fits all approach to the sentencing of criminal defendants in Indiana in place for over four decades has simply not been responsive to the realities of what is causing many of the criminal prosecutions and arrests throughout the state.
While there is certainly a time and place for the deterrent of incarceration for convicted offenders, for my clients accused of dui and drug offenses it is almost always the case that it is the rehabilitation through customized treatment that is in the best interests of the sentenced defendant and in turn the general public.
Of concern amongst the legal changes on the horizon are the possible efforts of lawmakers alarmed at losing the punitive potential of prison to seek alternative forms of “quasi-punishment.” Such sanctioning that in my view are more with the goal of punitive deterrence than the actual and logical benefit to reducing crime in Indiana.
For example, within the context of drug or dui cases, renewed mandates for unreliable reporting instruments connected to vehicles and within the home immediately come to mind. Manipulative efforts to compel the impoverished to pay for the punitive tools of private industry at the expense of dependent children or potential educational job training efforts.
As new laws are advanced I will be eager to share how I will be in position to best maximize application of emerging legislation to the defense criminal of prosecutions throughout Indiana.
As local governmental entities throughout Indiana attempt to garner additional sources of revenue, it is inevitably the area of traffic enforcement that fits the bill for many small communities lacking alternative sources of potential income.
However, unlike the past, even an uptick in fines and costs associated with more traffic offense citations and/or arrests has not often kept pace with the need for more revenue to serve the needs of these smaller communities throughout Indiana.
If past is prologue I believe an expected potential issue to be quashed in this state will be yet another reconsideration of manipulating civil forfeiture laws to allow for the seizure of vehicles allegedly used to commit the offense of drunk driving.
New York City Mayor Rudy Guliani became instrumental in implementing such policies dealing with drunk driving offenses committed within the confines of New York City several years ago. Guliani reasoned that it was not enough to merely go after those prosecuted for such offenses with harsh criminal penalties. Rather, Guliani whether for future political aspirations or moral certitude announced his get tough approach on dui would include the confiscation of vehicles used in the commission of dui offenses.
Those unfamiliar with the practice of impounding vehicles following a dui arrest were outraged to discover that not only were they in the crosshairs of criminal penalties but also the “civil” sanction of a potential loss of a motor vehicle. Countless appeals on numerous grounds had followed the practice in one form or another resting upon the government’s unlawful search and seizure of private property.
Despite vigorous challenges, appeals to the practice of vehicle impoundment remained unsuccessful so long as the practice constituted a valid public policy interest reasonably related to public safety. As a result, governmental authorities in New York City, armed with the green light of appellate review, have used the lower standard of evidence to prevail within a civil court (preponderance of evidence) to enrich the coffers of its local municipalities through the sale of privately seized vehicles during the course of dui prosecutions.
The practice has continued unabated. Despite public outcry and media attention devoted years ago to the practice of dui vehicle impoundment, the attention waned following the events of 9/11.
Riding the crest of a public more willing to submit to a greater infringement of civil liberties following 9/11, the alarm of expanded efforts to seize the private property of individuals accused of a crime has subsided.
Since Guliani’s measures to highlight a get tough approach on drunk driving, it has been left to local political entities and law enforcement as to whether to attempt such an impoundment policy elsewhere.
Former Marion County (Indianapolis) Prosecutor Scott Newman initially flirted with the idea of vehicle impoundment within dui cases. However, I suspect the broader sensibilities of the local community here in Indiana were not as readily willing to accept such a governmental practice in this part of the country.
I must say that in the years since Guliani’s measures, I have been heartened by the fact that political grandstanding has thus far not resulted in a wave of prosecutorial directives aimed at seizing the vehicles of motorists accused of drunk driving. Although specific localities outside of Indianapolis have also considered the practice, I remain convinced that the area of criminal forfeiture is best directed at the intended purpose of these laws originally intended to confiscate the unlawful proceeds of drug dealing activity.
Although formerly upheld within respective appellate court review, I believe it to be an unwarranted application of the civil forfeiture statutes to encompass the realm of drunk driving arrests as an intended target of the civil forfeiture law statutes. Creative application of such laws by politically motivated prosecutors to ensnare good working people otherwise productive to the workings of society cannot be abridged in the future as related to drunk driving prosecutions. Let us be ever vigilant to be mindful of the lessons learned by the policies handed down within New York City as a lesson we do not wish to befall the citizens of Indiana when and if needed sources of revenue continue to arise during the course of a faulty economy.
Periodically Indiana law enforcement authorities ramp up efforts on college campuses within Indiana to address the proliferation of underage drinking. However, through the years there has frequently been little coordination between respective Indiana colleges as to the resources, effort and/or attention that will be devoted to these issues. Depending upon the particular educational institution, the allowance for alcohol or other disorderly type of criminal offense to go undetected varied from location and time of year. From the perspective of a defense attorney, this reality would often dictate the expected focus of my attention toward the legal protection of those within some institutions more than others.
For example, during the homecoming season at Indiana University, I can almost predict like clockwork the amount of calls I will be receiving from students and/or their concerned parents as to all alcohol or drug related offenses during this fateful time period. Unlike the above referenced predictability of alcohol/drug related arrests dependent upon time and location, a recently announced initiative of the Indiana State Excise Police is attempting to coordinate alcohol apprehension and enforcement efforts among all state colleges deemed worthy of a more intensified focus. Labeled the “Intensified College Enforcement Program,” the new initiative has initially been directed at the student populations on the campuses of seven Indiana universities including, Ball State, Butler, Purdue, Indiana State University, Notre Dame, DePauw and Indiana University.
This intensified enforcement program has been pitched as a way to alter the behavior of college students or those frequenting college campuses as the behavior relates to underage drinking and its potential criminal prosecution. Originally begun at Depauw, Purdue and Indiana University in February, the program has predictably expanded to the other named institutions. Such programs are extremely fertile ground for the efforts at law enforcement as a major source of revenue stemming from the arrest or summonsing of large numbers of youth within a limited area. As many citations for court involve the ticketing of individuals ordered to appear in criminal court, administrative paperwork efforts at processing those charged have been eliminated allowing for police to focus on issuing as many citations as available time and resources allow.
Law enforcement authorities have stated that they will not know the success of such a program for a few years down the road. I would suggest that due to the ambiguous nature of how success is defined, the general public will learn relatively little as to the benefits of such efforts. For example, if arrests or citations are down, the programs in question will be lauded. If statewide revenue is needed, law enforcement will step up to fill the void with statistics indicating a rise in whatever category of youth related criminal misconduct is required.
In this fall season please be aware of these law enforcement efforts specifically as related to enforcement on the aforementioned college campuses. From an initial inquiry as to alcohol related consumption it is inevitable that the pursuit of youth who are tailed getting into vehicles will surely follow. It is then that we will learn of law enforcement’s upcoming follow up program dealing with the apprehension of drunk drivers on the campuses of these same college institutions.
One of the great dangers that exists within our present political system is the significant role raising money has played in the ability for a candidate to be elected. The disproportionate amount of time elected officials must devote to raising campaign monies for a re election bid is both unproductive to society and unsavory for many otherwise qualified individuals who remove themselves from consideration.
Most attention in this area has been spent focused on presidential and congressional elections. However, a more insidious localized threat to the very fabric of our criminal justice system is prone to attack when prosecutors and/or judges become beholden to the campaign dollar in order to preserve their employment.
Recently in Indianapolis the building blocks toward a potential federal prosecution mounted against former Marion County Prosecutor Carl Brizzi are being built piece by piece based upon a circumstantial assessment of his actions as prosecutor; actions that many have surmised were motivated more by financial gain than the interests of justice.
Over the past few months the common thread in the Brizzi investigation has been the role money has played in explaining the decision making process of this former prosecutor.
The first shoe to drop was the plea deal reached by a former Indianapolis defense attorney who has handled numerous cases within Marion County. The attorney will ostensibly be required to testify under oath as to how former prosecutor Brizzi was able to land a sweetheart financial deal from this gentlemen whereby prosecutor Brizzi would acquire a one half ownership interest in an Elkhart office building slated for lease to a governmental agency. The ownership stake was of particular interest to federal prosecutors due to the alleged reports indicating that Brizzi was required to put none of his own money into the deal so as to secure a fifty percent ownership interest in the office building.
What former prosecutor Brizzi was expected to offer in return for this attorney’s largesse is no doubt one of the pending central themes focused on by prosecutors during this purported pending investigation. However, as weeks have gone by since reports of the above referenced plea deal, many local Indianapolis pundits had begun to question the potential strengths of any criminal allegations to be mounted against the former prosecutor.
The absolute requirement that public confidence be extended to our justice system is such that a federal prosecutor must tread very carefully before publicly impugning the integrity and ethical conduct of a former elected prosecutor. In the weeks that have passed many have questioned whether Brizzi was to escape further scrutiny in the interests of preserved public confidence or in fact nearing the precipice of an announced prosecution to be furthered against him.
This week the answer seems to be the latter with the publicly declared plea deal now reached between prosecutors and Brizzi’s former Chief of Staff, David Weyser.
Following a familiar pattern, alleged financial considerations in securing re election for Brizzi in Marion County and an election run for prosecutor by Weyser in Hamilton County have lead to scrutiny of a modified sentence of a convicted killer.
It is reported that Weyser’s plea will in effect speak to a quid pro quo for the murderer’s bid for a modification of sentence in return for thousands of dollars from the convicted defendant’s father earmarked for Brizzi and Weyser’s respective election campaigns.
As a defense attorney what is of great interest to me within these reported developments is the willingness for Weyser to admit guilt for conduct that is otherwise defensible political fund raising activity or arguably the immune discretionary conduct of a deputy prosecutor. By way of speculation, it will be curious to discover the evidentiary link that prosecutors have up their sleeve sufficient to dissuade Weyser from mounting a legal defense in challenging bribery allegations.
In many such bids for modification, it is extremely difficult for law enforcement to establish firm evidentiary footing by which to prove beyond a reasonable doubt that a prosecutor’s actions to modify a sentence were prompted by financial payment.
Weyser’s willingness to admit guilt in the modification episode does not speak favorably to Brizzi’s future likelihood of escaping a public prosecution. Through the successful prosecution of those within Brizzi’s inner circle, U.S. Attorney Joe Hogsett has deliberately begun to assemble further pieces to connect this evidentiary puzzle against Brizzi should witness testimony allow.
Irrespective of whether this prosecutor faces criminal prosecution in deliberating the merits and motivations of his decisions as prosecutor, the prospect of a looming indictment of a publicly elected prosecutor is one none of us should savor.
Although there may be short term glee among many who believe such a prosecution demonstrates that true justice for all is not just a platitude, the long term damage to our public confidence and institutions entrusted to administer justice may be irreparably damaged.
So as to prevent future financial entanglements from even potentially playing a role in the administration of justice, true campaign reform must be debated. Such reform will not only enable society to benefit from the most able potential leaders, but will allow for deliberate attention to the administration of justice and not the continued pre occupation with funding a continued assault of negative campaign commercials unleashed upon the voting public.
Recent revelations concerning the methods and tactics by which police in Carmel set out to arrrest employees of a local massage parlor in Hamilton County has raised concerns.
The undercover officer leading the investigation as to whether a professed Chinese massage facility in question was legitimate and not a front for a sex trade operation is reported to have allowed one of the woman targets of his investigation to fondle his genitals on numerous occassions.
The Carmel Police Department, and not the anonymous officer, quickly responded that this activity was a legitimate means by which to illicit trust among women potentially victimized into forced sexual labor. Such trust gained through such sexual contact is stated to be essential in determining whether higher ranking pimps were illegally enslaving woman in the sex trade through facilities such as the one under investigation.
The anonymous officer participating in the sexual act(s) alleged was lauded by the department as a hero who in no way welcomed sexual contact but viewed the activity as a needed cost of a thorough and comprehensive police investigation.
In may be somewhat alarming for citizens to discover that at the present time in Indiana, there exists no legal prohibitions on undercover law enforcement officials allowing themselves to accept the sexual initiation of investigated individuals so long as the activity has been couched as one in the course of a police undercover sting investigation.
From personal experience in defense of those prosecuted as a result of such sexual sting operations, I can thankfully report that instances of actual sexual contact between the investigator and investigatee are in the minority.
However, in several notable cases I have fought egregious practices of sexual participation on the part of law enforcement toward the ultimate arrest and prosecution of a client. More often than not such a targeted individual has been further victimized by arresting officers who have used the cover of a police investigation to further their own sexual gratification.
In many instances the woman targeted for such prosecutions are in no way affiliated with some international sexual cartel, but often single mothers working locally and in need of financial support for a family where they see little alternatives elsewhere.
Without fail such cases are usually favorably settled when it dawns on such police officers and their departments that it will be my intention to expose their investigative tactics to the public review of a jury and local media. However, although such legal strategies have been successful, I believe it is time for there to be more teeth behind curtailing the potential for such unethical police conduct beyond mere public shaming and/or embarrassment.
For cynics or even those typically firmly in the corner of law enforcement, there is a fine line between lawful police conduct in this area and a a potentially drawn out investigation motivated by an investigator’s own sexual gratification.
It is precisely this difficulty in determining an officer’s subjective intent that has lead many police departments to clearly spell out the rules of engagement sort to speak in the area of sexual sting operations.
Absent such clear and communicated policy standards, the general public must be left to simply trust that their tax dollars are not being spent to further the sexual desires of investigators couched as a means of accepted police procedure.
Under Indiana law there is no need for consumated sexual contact to be evidenced in order to further a prostitution related conviction. Once an agreement and exchange of currency has been proven, most reputable police procedure will enable investigators to halt further action toward the intended sexual contact.
Ironically, police operations that allow initated sexual contact to continue after a provable agreement has been made are in effect perpetrating the victimization of woman they so sanctimoniously claim to be protecting.
I believe the time has come in Indiana and elsewhere for laws to be enacted to prevent the continued unsavory perception of police activity such cases represent. At the very least it should be the requirement of all police departments to enact codified police dictates in regard to detailed policies for how sexual stings will be conducted. In so doing, civil liabilty can more readily attach against police departments who stray from such approved guidelines; rules that will no longer enable unethical officers from furthering their own sexual desires through the means of arbitrary and subjective police practice.
All too frequently news accounts of sordid personal dealings have caused otherwise valued and responsible public officials to have government employment terminated. In recent months the city of Carmel has experienced the discomfort of two of its hired consultant’s personal activities with woman being held to scrutiny.
In the first matter resolved earlier this year, the city’s arts director had his government advising contract terminated due to an actual conviction in Marion County for soliciting a prostitute. Irrespective of one’s feelings as to whether this individual’s years of valued assistance to the Carmel community should have insulated this one time mistake from termination, a reasoned argument can be made that continued government expenditures paid to such an individual was not warranted.
Although my personal belief is that it is society as a whole who will suffer due to the termination of this otherwise talented individual who grew the Central Indiana arts presence to places it had not before reached; it is clearly within a local municipality’s rights to terminate taxpayer funded employment as a result of a violation of law, no matter how minor.
When determining criminal punishment the interests of society are always a factor that a judge must take into account in preserving the long term best interests of the communities in which we live.
I submit for lower level first offense cases of a personal nature (solicitation) it is in fact society as a whole whose long term interests are not served when a disproportionate adverse effect on a local community can result from the decision to terminate such a man for a relatively minor offense. On such occasions one’s own personal relationship with a spouse and/or family will likely cause far more pain and anguish than the pronouncement of criminal punishment by a presiding judge.
Nonetheless, my personal views on that matter non withstanding, it is difficult for me to make an impassioned argument as to why the City of Carmel was not well within its right to terminate government employment based upon such personal conduct where said conduct results in a public criminal conviction.
As political officials, government actors must always make decisions reflective of what they believe is the consensus of the local citizenry for whom they represent. Where a more liberal community might give such a valued public servant a pass, a more conservative community, in this case Carmel, chose not to.
Refreshingly, the city of Carmel has thus far chosen a different path in regard to the continued employment of a former Marion County auditor now employed as a financial advisor to the city.
News reports have not been kind to this gentlemen in the wake of a criminal arrest where he was the purported victim of a robbery; a robbery allegedly formulated at the behest of a 21 year old companion more than half his age he had formerly met online.
Reports have circulated that this individual met his young friend as a result of his use of a “sugar daddy” website. Promoted as a means in which elder gentlemen can be in the company of young woman with the implicit understanding that financial offerings will be provided, this public official who I will not publicly name has become victimized not only by his physical attackers but by solacious media reports as to his questioned personal relationship with the young woman in question.
With the declared statement that this individual’s employment with Carmel will not be discontinued based upon merely unsavory speculation, I applaud the city council of this city who up to this point has taken what I believe to be the correct enunciated response.
Whether a principled position or the fear of wrongful termination litigation motivated the city’s present position is unclear. However, where one’s personal dealings are not unlawful, continued government employment should be predicated upon competency for one’s delegated civic responsibilities and not the moral judgement of politically elected public officials.
The best defense to a driving prosecution is to prevent an arrest at all. As parents, understanding the mindset of those in our care can often go a long way toward preventing needless entanglements with the law.
In my capacity as a defense lawyer, I often must counsel parents with children facing juvenile or adult charges. On such occasions it is often imperative that all involved understand that those responsible for legal punishment are not often looking to extend the benefit of the doubt to one arrested or under questioning.
As a result, when I set about to prepare a juvenile or young adult for an experience in court or before a legal official, a large part of my job is to attempt to adjust their mindset as to the appreciable dangers of certain behaviors; especially in regard to teen driving activity.
If accurate, a recent report sponsored by Liberty Mutual Insurance provides alarming statistics as to the extent to which teen motorists may be disregarding potential dangers on our nation’s public streets.
In the study of over one thousand teens, nearly one in four admitted to dui, whether under the influence of prescribed medication, drugs or alcohol. In the, “it can’t happen to me,” society in which we live, a sizeable minority allegedly not only believe they are not a danger to others in such a condition, but reportedly state that the ingestion of Marijuana, alcohol or other drugs may actually improve their own driving activity.
As an experienced defense lawyer I tend to view such reports with suspicion. It is simply too convenient for groups such as the Mothers Against Drunk Driving as well as the interests of insurance companies to ratchet up the fear factor of parents as to the need for protective insurance coverage to fortify themselves against the irresponsible teen drivers lurking in their midst.
While it is certainly true that many teen drivers are in fact often naïve as to the hazards posed by drugs and alcohol, most others appreciate the notion of driver safety and ways to responsibly prevent accidents.
However, there is little doubt based upon personal experience that there does exist a significant minority of teens who are wholly unprepared to meet the challenge of legal questioning should confronted with a teen driving arrest.
A teen driver’s personal belief’s non withstanding, it is simply never advisable to put forth the notion or mindset to law enforcement officials that dui in any form can be an acceptable risk being responsibly undertaken. To present an aloof attitude to law enforcement if questioned is to invite further questioning before either a juvenile case probation officer or a prosecutor.
Most notably in juvenile court, a parent or legal guardian can be held legally responsible for failure to properly teach and hold responsible those in their care. Should a juvenile not appreciate the consequence of unlawful behavior it may actually become a parent who could find themself in the crosshairs of a prosecutorial investigation. More commonly in juvenile court, parental participation may be ordered so as to facilitate the learning process of teen driving safety in conjunction with more stringent legal consequences.
In sum, as a parent please be mindful that all youths at one time or another are likely to be faced with external pressures that may subject them to criminal investigation. Should such be the case, please be pro active before needing to meet such a challenge by not only working to prevent a teen’s lawful detention, but also informing our youth as to how to properly present oneself before a law enforcement official should the need arise in the future. In so doing, your teen will be best served as one who fully appreciates the potential dangers a dui can cause to others in society at large.
Many well versed clients have often questioned me as to whether prolonging pre trial proceedings will serve their legal interests within an Indiana criminal courtroom. The theory being that in time, witness memory or availability may be called into question and/or a police officer may not be able to appear as a witness. As a result, a necessary court date could be missed providing legal leverage for a favorable outcome whether through agreement or case dismissal.
Speaking as a defense lawyer in Indiana I understand these thoughts, especially when media reports highlight the seemingly bizarre case rulings and resolutions from more populous jurisdictions such as those within California, Florida or New York.
Most recently I have read a terrific article shared by lawyers Michael Stewart & K. Lawson Wellington highlighting the almost comical degree to which a defense attorney in New York City has been able to use delay to benefit his clients without repercussion for many years. I have linked this article on my google plus page for review.
I can only theorize as to the reasons why other legal jurisdictions harbor an allowance for recurring delays in criminal case proceedings such that cases seemingly go on for an indefinite duration. I submit that for those challenging criminal accusations within such urban locations, the phrase, “justice delayed is justice denied,” could not be further from the truth.
In point of fact, delay can often serve the interests of the accused within a criminal case. For one able and willing to prolong legal proceedings, witness memory and or zeal to participate can often wane over time. Prosecutors burdened with tracking down such individuals while contending with a backlog of prosecutions are often in a weak position when considering the likelihood of a successful prosecution. Coupled with city jails often filled to capacity, experienced counsel can maneuver clients toward beneficial resolutions hard for defense lawyers to dictate in less congested courtroom jurisdictions.
Within these more populous urban environments attorneys quite justifiably serve their clients interests in manipulating the above referenced realities to their client’s advantage. Whether through a most favorable reduction in charges to case dismissals due to the inevitable non appearance of an essential state witness, judicial allowance for delay is one taken advantage of by many a skilled defense lawyer practicing within backlogged court jurisdictions.
One can do no more than speculate as to why this allowance for delay often exists in courts outside of Indiana. To cite but one example as highlighted within the New York Times article, in cities such as New York, issues such as unpredictable traffic congestion can often allow an attorney to cite an inability to arrive on court on time as a means by which to continue legal proceedings.
Not unlike the trickle down effect of how actual traffic congestion is created on our roadways, these delays create court traffic that must be diverted to different time slots when an attorney is unable to attend hearings due to elements outside of his or her control. In turn, judges on their own motions must continue future legal proceedings due to outside influences not necessarily attributable to the delay of the defense.
Relative to the court systems present within New York, Los Angeles, Miami, Chicago or other densely populated cities, Indiana does not generally have these issues with court congestion. Even within Indiana’s largest city of Indianapolis, court congestion and jail overcrowding, although not ideal, have never grown to the epidemic proportions present elsewhere.
As such, prosecutors in rural Indiana frequently have more of an upper hand when it comes to dictating the terms of pre trial resolutions as attorneys are in no way given the wide latitude for delay present in urban jurisdictions.
Without the onset of recurrent court ordered delays due to case congestion, prosecutors are able to establish deadlines for the acceptance of pre trial agreements with the knowledge that judges in Indiana can actually commence trials on their slotted dates.
Witnesses and police officers are more readily corralled with the reality that true repercussion can result from non appearance for a court date that will in fact proceed as scheduled.
Each case and circumstance is different when assessing the costs and benefits of a delayed prosecution. A lawyer must always remember that both the liberty and finances of a client are at stake when defending a criminal case. Understanding legal procedure and time elements within the courtroom at hand is an essential component to properly advising a client whether appearing in New York City or Bloomington Indiana.