CHANGE OF VENUE

CHANGE OF VENUE

A LAW STUDIES TEXTBOOK INCLUDING THE TRUE STORY OF AN INDIANA

TRIAL FOR TRIPLE MURDER

2014 STUDENT EDITION INCLUDING OUTLINE AND DISCUSSION TOPICS

John R Berger

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Copyright 2008 by John R. Berger. jrb11129@yahoo.com

All rights reserved. This book or parts thereof may not be reproduced in any form without permission of the author.

Published 2014 by Lake James Press20 Lane 200H Lake JamesAngola IN 46703

NOTE: The page references below may not be correct due to scribd formatting. However, by downloading and selecting DOC, it should download in MS Works, the page references should be correct, and the document can be saved, edited, selected and printed.

The entire materials in this textbook are available as a Survey of Law course in MS PowerPoint with narration as a free MOOC (Massive Open Online Course). To access the course go to or click on the following link http://www.coursesites.com/s/_LAW-INTRODUCTIONThen click on Content. Then click on Change of Venue PowerPoint. Then click on Browse as a Guest to view and listen to the entire course.

THE AUTHOR: John R. Berger is a graduate of Harvard Law School (JD 1953), Hillsdale College (BS Summa Cum Laude 1950), and a retired Circuit Court Judge and Professor of Law, Tri-State University. He is the author of a non fiction novel, The Red Gas Can, based upon the triple murder trial described in Change of Venue, and his autobiography, The Bubbles Rise. These books including Change of Venue are available in paperback at Amazon.

JOHN R. BERGERJANUARY 1, 2014

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In memory of Susanna

Ellen

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Author’s Note

This is a textbook to be used in introductory legal studies courses. The book contains a student outline and discussion topics including sources of law, constitutional development, state and federal courts, criminal and juvenile law and procedure, and an introduction to civil, probate, domestic relations, labor, antitrust, and administrative law. Actual Indiana statutes are reproduced to facilitate and teach research. Problems, Questions, and a Test Bank, all with answers, are included.

A primary emphasis of this book is upon criminal law, criminal and trial procedure, and constitutional law. An actual murder case over which I presided as the trial judge is set forth beginning at the scene of the crime and continuing through the investigation, pretrial procedure, trial, appeal, and Supreme Court opinion.

Even though portions of this book rely upon Indiana law, most state criminal law and procedure are similar, and I think that the materials in this book would be appropriate as an introductory course for legal studies students generally.

The facts set forth in these materials are based upon actual facts. They are taken from trial documents, the official trial transcript, interviews with the persons directly concerned including investigating officers, jurors and attorneys, research and my memory. I have simplified or modified some of the materials but the basic facts are accurate. I have changed the names of the victims, and some non police witnesses to provide privacy.

This is the tragic story of William, Elizabeth Ann and Jenny Harold who were brutally murdered in the early morning of January 20, 1974, and of the trial of the accused, David James Roberts. Interwoven are important legal and constitutional issues.

This is also my story as a young man, student, lawyer and judge. I was the judge for the Roberts trial and it was the first murder trial involving the death penalty over which I presided. I have included Notes at the end of the book which set forth additional or tangential facts which the reader may find interesting and informative.

Follow the criminal proceedings, read the trial evidence as it unfolds, assume you were on the jury, and decide the guilt or innocence of David James Roberts. Will you agree with the jury decision?

John R. Berger Angola, Indiana January 1, 2014.

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STEUBEN COUNTY COURTHOUSE AND CIVIL WAR MONUMENT

Angola, Indiana

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JOHN R. BERGER

Judge, Steuben Circuit Court

January 1, 1971

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CONTENTS

PROLOGUE 17

PART ONE: STEUBEN COUNTY AND THE CIRCUIT COURT

1. Steuben County 252. Steuben County Courthouse 273. The Judge 294. The Circuit Court 33

PART TWO: THE TRIAL

5. The Grand Jury 376. Preliminary Hearing 407. Bail Hearing 428. Change of Venue Hearing 449. Arraignment 4610. Omnibus Hearing 4811. Jury Selection-1 5112. Jury Selection-2 5613. The Trial-Preliminary Instructions 5814. The Trial-The State's Evidence Day 1 6115. The Trial-The State's Evidence Day 2 7716. The Trial-The State's Evidence Day 3 8617. The Trial-The State's Evidence Day 4 9318. The Trial-The State's Evidence Day 5 10519. The Trial-The Defense Evidence Day 6 11220. The Trial-Closing Statements and Final Instructions 114 21. The Trial-Duty of Jury 12022. The Trial-Jury Deliberations 12423. The Trial-The Verdicts 12824. Indianapolis, Indiana 13025. Roberts' Criminal Record 13126. The Trial Phase Two 133

PART THREE: THE APPEAL

27. Motion to Correct Errors 14328. Judicial Review 14729. Cruel and Unusual Punishments 14930. Indiana Supreme Court Decision 15231. Northwest of Indianapolis 15432. America’s Most Wanted Television Show 156

EPILOGUE 159

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AUTHOR'S COMMENTS 161BIBLIOGRAPHY 167 NOTES 169APPENDIX: STUDENT OUTLINE AND DISCUSSION TOPICS 188ADDITIONAL READINGS 194 and 305STATE AND FEDERAL COURTS 198THE CHEROKEES 200DIVISIONS OF AN INDIANA CIRCUIT COURT 201ADDITIONAL BIBLIOGRAPHY 206UNITED STATES CONSTITUTION 207INDIANA CONSTITUTION: http://www.in.gov/legislative/ic/code/const/

INDIANA CODE PROVISIONS AND ADDITIONAL MATERIALS: Indiana Offenses and Sentences 213 IC 35-42 Offenses Against the Person 215 IC 35-43 Offenses Against Property 230 IC 35-50 Sentences: General Provisions 242 IC 35-50 Death and Felony Sentences 243 IC 35-50-2-9 Death Penalty Sentencing Procedure 245 IC 35-50-3 Misdemeanor Sentences 249 IC 35-33 Arrest 250 IC 35-33 Arrest Warrants 254 IC 12-26 Involuntary Detention of Mentally Ill 255 IC 35-33 Search and Seizure 257 IC 35-33 Probable Cause-Initial Hearing 260 IC 35-33 Bail 263 IC 35-44-3-6 Failure to Appear 266 IC 35-41-2 Basis of Liability: Aiding-Intoxication-Attempt-Conspiracy 267 IC 35-41-3 Defenses: Self defense-Intoxication-Insanity- Mistake-Duress-Entrapment 268 IC 35-36-2 Affirmative Insanity Defense 273 IC 35-41-4 Burden of Proof and Bars to Prosecution 276 Jury Verdicts for Murder 277 Indiana Criminal Procedure Outline 278 IC 35-41 Definitions 280 IC 31-37 Juvenile Law 281 Indiana Juvenile Procedure and Waiver Checklist 293 Federal Administrative Agencies 295 Labor Law 297 Antitrust Law 299 DNA Statutes 300 The Right to Bear Arms Article 305 Sterilization Petition 309 Questions 309 Problems 311 Test Bank 314 Questions with Answers 326 Problems with Answers 330 Test Bank with Answers 334 NOTE: The entire Indiana Code can be found at http://iga.in.gov/legislative/laws/2014/ic/The Code has 36 Titles. Title 33: Courts and Court Officers. Title 34: Civil Law and Procedure. Title 35: Criminal Law and Procedure. Title 9: Motor Vehicles Operation. Title 31: Juvenile Law. A citation to the code is IC 35-41-3-16 (Title 35-Article 41-Chapter 3-Section 16).

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“Whoever intentionally takes

the life of another with malice

aforethought shall be guilty of

the crime of murder.”

The definition of

murder under English common

law.

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PROLOGUE

New Whiteland, Indiana

It was about 4:30 a.m. on a cold and dark Sunday morning, January 20, 1974, in New Whiteland, a small middle class white residential community located in Johnson County fourteen miles south of Indianapolis, Indiana, when a passing car noticed smoke arising from the small suburban ranch home of William and Elizabeth Ann Harold located on 915 Pine Drive. Within five minutes the local volunteer fire department had arrived.

Upon entering the front door, the firefighters were met by a surge of fire coming from the middle section of the house. The house was fairly airtight and therefore the fire had not spread to the front and was mostly contained to a small den or TV room in the middle of the house. In ten minutes the fire was brought under control and extinguished. When the firefighters first arrived they observed through a back bedroom window a baby bed. They broke the window, entered the bedroom and found the Harold’s one year old daughter, Jenny, in her small bed still alive but unconscious. She died on the way to the hospital from smoke inhalation. Her first birthday was three days before.

The firefighters then searched the rest of the house. In the small den the burned bodies of William and Elizabeth Ann were found. They were 25 and 23 years of age.

Fortunately, their four year old daughter, Marie, was spending the night with her uncle.

The Investigation

The state fire marshal’s office, state and local police thoroughly examined the Harold home for evidence as to the cause of the fire and the perpetrator of the crimes. There was no evidence of forced entry. The front door was open when firefighters and police arrived. It was determined that the fire was caused by gasoline igniting. A red five gallon gas can was found in the den. No evidence, other than the red gas can, was found at the house to indicate who committed these crimes. Harold family members described the Harolds as a loving young couple who had been high school sweethearts. They were married shortly after graduation from high school. They were wonderful parents. They had two daughters, Jenny and Marie.

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The neighborhood was canvassed by the police and forty one neighbors were interviewed. No one had seen any visitors, salesmen or delivery persons in the afternoon or evening of the murders. Investigators canvassed all service stations within the New Whiteland and Indianapolis areas to determine if possible the source of the red five gallon gas can. Investigators determined from several witnesses that on the late afternoon prior to the murders at about 5:30 p.m. at a gas station at the corner of 16 th and Meridian Streets in Indianapolis a black male in his late 20s, driving a 1970 tan or gold Buick Riviera, borrowed a five gallon red gas can with “$5 DEPOSIT ON THIS CAN” in yellow crayon on the side and had it filled with gasoline. One of the black employees stated to the investigator that he was the one who had sold the gas and delivered the gas can. It was the same gas can found at the scene of the murders. After further thorough investigation, preliminary murder charges were filed and an arrest warrant issued for David James Roberts. Roberts was arrested and held without bail.

David James Roberts

When arrested Roberts lived in Indianapolis. He was African-American. He was 29 years old, 6’3’’ tall, 195 lbs., had a light brown complexion, black hair, brown eyes, mustache and slight afro haircut. He had a tattoo “Carlos”. He appeared to be well educated and was very articulate. He was attractive in appearance.

David James Roberts was born in Englewood, New Jersey, on January 25, 1944, and lived there for four years. His parents were African-American. He had three brothers and three sisters ages 19-37. He had a deceased father and sister. His mother, sisters and brothers all lived in the Chicago, Illinois, area. He attended grade school in Boston, Massachusetts and in New York State and attended high school in St. Paul, Minnesota. He did not have any attendance problems and got along well with his teachers. He moved to the Chicago area in 1960. His father was self employed in the trucking business transporting frozen foods. He owned trucks and heavy equipment. He was very successful in this business until in the early 1950s when he developed diabetes and was unable to drive a truck or heavy equipment. Roberts worked with his father in Chicago until his father died in 1965 and the business was dissolved. Roberts later moved to Indianapolis and attended Indiana-Purdue University in Indianapolis for three years. He enjoyed his college courses and received good grades. In 1972 Roberts married Maryanne Duly. They had one child, Christopher, age 2. Roberts classified his marriage as a good one. Roberts had worked in a steel mill and as a quality control inspector for Detroit Diesel in Indianapolis. He had speaking engagements at educational institutions in regard to penal reform. Roberts enjoyed fishing and reading all types of books, especially law and literature.

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Roberts was born a Catholic and has attended church in the past. He stated that he believed in God.

Later the Johnson County Grand Jury issued Indictments for murder and arson against Roberts. He was formally arrested again and after several preliminary hearings before the judge of the Johnson Circuit Court, the case of State of Indiana v. David James Roberts was transferred for trial to the Steuben Circuit Court, Angola, Steuben County, Indiana. I was the Circuit Court judge and the case would be tried before me and heard by a Steuben County jury.

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DAVID JAMES ROBERTS

1974

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PART ONE

STEUBEN COUNTY AND THE

CIRCUIT COURT

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1

Steuben County, Indiana

September 29, 1974

Steuben County is located in the far northeastern corner of Indiana. The history of Indiana 1

and its settlement were important ingredients in the selection of Steuben County as the Roberts trial venue. Indiana was first settled in the southern part of the state by people of southern origin using water routes, primarily the Ohio River. They came from Virginia, Kentucky, North Carolina, Tennessee and Maryland. They brought with them their southern white heritage and opinions concerning African-Americans. By 1850 most settlers lived in the south half of Indiana. Beginning in about 1830, settlers from Ohio, Pennsylvania, New York and other northeastern states began to immigrate into the northeastern part of Indiana including Steuben County. Their heritage was northern with little prior contact with African-Americans. In the first quarter of the 1800s there were few settlers in the northern part and many Miami Indians. The Miami by treaty were removed to the Kansas Territory by 1846.

The first permanent settler in Steuben County was Gideon Langdon who built his log cabin in Jackson Township in 1831. Shortly thereafter other settlers began coming to Steuben County, primarily as part of the western migration of English Protestants from eastern states and New England. Early settlements included Jackson Prairie, Vermont Settlement and Nipcondish (Pleasant Lake). Steuben County was created in 1837 and named for Baron Frederick von Steuben, a Continental officer in the Revolutionary War.

At the time of the trial, Steuben County had a population of about 26,000. There was one city, Angola2, with a population of about 5,000 and a beautiful 1917 Civil War Memorial Monument located in a large circle park in the center of the city. The monument is 85 feet tall and honored the 1,278 soldiers from Steuben County that served in the war of whom 280 never came home. Angola had no stop lights. There were also several small towns in Steuben County. The county had a small industrial and commercial base, a large farm population, a small college, 101 beautiful glacier lakes which provided many recreational opportunities, and beautiful Pokagon State Park and Potawatomi Inn. There was only one black family residing in Steuben County. The county had a scenic small lake called Fox Lake with all African-American summer residents. They were mostly professionals from the Toledo area. They were warmly accepted by the community and were about the only African-Americans with whom Steuben County residents had become acquainted.

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From this mix of merchants, a small group of professionals, farmers, blue collar small factory workers, public school teachers, and college professors and employees a jury would be selected. As would be expected, the jury as finally selected did not have any African-American members. Even though there were not any African-Americans in the jury pool, because of the northern heritage of most Steuben County residents and their limited exposure to African-Americans, prosecution and defense counsel thought that they could select a jury that was not biased against African-Americans. Steuben County was a compromise as defense counsel wanted the case venued to an urban area and the prosecutor would not agree.

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2

Steuben County Courthouse

Shortly after the Civil War, in 1867-1868, Freeborn Patterson designed and built the present brick courthouse in Angola for Steuben County. He built it in the style of Faneuil Hall in Boston, a building famous for its role as a meeting place for patriots during the American Revolution. The court house is distinctive for its arched windows set in tall sunken panels, for its raking cornice carried by pairs of brackets, and for its curved wooden staircase. The construction cost was $26,392.00. The courthouse was built on mostly donated land at the southeast corner of the public circle and its high cupola can be seen for many miles. The courthouse was enlarged in 1937 by adding to the south side at a cost of about $31,000.00. The courthouse was two stories high with a rustic basement. The first floor contained the offices of the County Clerk of Court, County Recorder, County Assessor and County Treasurer. The basement contained retired files and the Goodale Abstract Office. The large circuit courtroom with a high ceiling and large arched windows, the judge’s chambers, the court reporter’s and bailiff’s offices, and the probation officer’s office occupied the entire second floor. Access was by means of two large beautiful wood staircases, one on each side of the entrance hall. Originally there was a balcony overlooking the courtroom which was accessed by a small rickety winding staircase. The balcony had been closed and walled off for many years and was used as a storage area for old furniture and miscellaneous retired court files. When I was judge there was no courthouse security as there is today. A few years ago someone in Oklahoma who was involved in a divorce action was not completely pleased with the judge’s decision and shot His Honor dead in the courtroom. Immediately every courthouse in the nation had to have armed security. Not to be left behind, the Steuben County Commissioners since then have provided funds for two deputy sheriffs Monday through Friday from 7:30 a.m. until 5 p.m. to man the courthouse door, complete with walk through and hand held wand sensors.3

A cost comparison analysis would indicate that it would be a lot cheaper to not have security and lose a judge now and then.

On the wall of a hallway outside the court room hung a photograph of a 1918 all male jury that had deliberated the fate of Nora Coleman, a woman accused of murdering her mother. Old records of the case were found which included the Coroner’s Report and an Affidavit by the defendant’s husband.

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The Coroner’s Report stated that the deceased “had succumbed to her death from being shot in the head.” It stated the cause of death as follows: “I find that the deceased came to her death as the result of being shot in the head with gun shot charge entering just above right ear and lodging in the skull.” These were the complete findings of cause of death. It is interesting to compare this report to the detailed many paged coroner’s reports of modern times. In 1918 they did not elaborate on the obvious. The Affidavit of the husband stated, “I, Word Coleman, being duly sworn make statement as follows: About 4 o’clock a.m., Feb 7, 1918, my wife awoke me at which time she fixed fires and came to bed. She said to me that I would not need to be bothered with mother any more for she had took the gun up there and shot her. When I asked her why she did it she said so she would not keep harrissing (sic) me. She gave no other reason.”

She was a good wife. She kept the house warm and took care of a bothersome mother-in-law.

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3

The Judge

A trial judge’s legal training, prior law practice and judicial experience are very important in formulating a judge’s thoughts and decisions. However, a judge’s background, life experiences including military service and being a husband and father, compassion, courtesy, and an ability to keep an open mind without bias are vital components in a judge’s decisions.

I was born to loving parents in Cincinnati, Ohio, on January 11, 1929. I had an older sister and brother, Peggy and George. I was named John after my father and great grandfather. We lived in a small house on one of the hills overlooking downtown Cincinnati.4

I attended grade school at Annunciation Catholic School, a converted church building with four classrooms near my home. Two grades were in each room presided over by a stern and loving Franciscan Sister. Father Kelly was the pastor of the adjoining church and each Monday

morning quizzed the faithful children on their knowledge of the Catechism. They had spent many hours each week memorizing the answers to the questions contained therein. I still remember the first question and answer: Question: “Who made you?” Correct answer: “God made me.”

Three years of high school then followed at Cincinnati Country Day School, a private school for boys, grades 1-12. There were twelve students in my junior year class and there were no seniors. The classes were rigorous and included Latin, French, Spanish, grammar and the classics.

After my junior year in high school, the WWII draft was still in full swing. I was seventeen. In order to attend college before being drafted, I enrolled after my junior year in high school at Hillsdale College, a small liberal arts college in Hillsdale, Michigan, under a wartime early enrollment program. I was teased later in life for practicing law when I did not even have a high school diploma.

I majored in physics at Hillsdale and was deferred from the draft and Korea.5 Upon graduation, I received the University of Michigan Horace Rackham Graduate School of Science scholarship for two years of graduate study in physics. The scholarship was tempting but prompted by excellent courses in constitutional history and business law at Hillsdale College, I decided to become a lawyer. I did not accept the scholarship to the great surprise and joy of the alternate, and to the chagrin of my father who would now have to pay tuition, room and board.

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Thus started my legal pursuit.

I applied to only one law school, Harvard Law School. I was accepted and in early September of 1950, with some trepidation, at the age of twenty-one headed east on US Highway 20 in my new bright red 1950 Ford convertible (a graduation present from my parents) toward Cambridge, Massachusetts, and to the unknown.

Law school consisted of three years of concentrated studies including the core courses of criminal law, torts, contracts, property law, domestic relations, commercial transactions, civil law and procedure, administrative law, constitutional law, taxation and jurisprudence. The 1950-1951 first year law class consisted of about five hundred students including for the first time twelve women. Classes were held six days a week. Classes were divided into four sections of 125 students. Each section attended class together in 150 seat stadium type classrooms. This was a new experience for me as I had twelve students in each class at Cincinnati Country Day School and usually twenty at Hillsdale College. While at law school I took a tour of Faneuil Hall located in adjoining Boston, never dreaming that one day I would be a judge presiding in a courthouse that was an exact replica. After three years of rigorous study, I was graduated from Harvard Law School with a Doctor of Jurisprudence degree in 1953.6 During the summer of 1953, I took and passed the two day Indiana bar examination and was admitted to the Indiana and Federal bar in November of 1953.7

The Korean War was still ongoing in the summer of 1953 and I was drafted into the Army as a Private at the age of twenty-four.8 Since I had an undergraduate degree in physics and a Doctorate of Law degree, the Army decided that I should be taught to assemble bridges and would make a perfect Field Engineer. I was assigned to Fort Leonard Wood, Missouri, for sixteen weeks of basic and advanced training.9 An armistice had been signed at Panmunjom on July 27, 1953 which effectively ended the fighting and, after basic, I was assigned as a field radio repair instructor at Fort Monmouth, New Jersey for the remainder of my two year active duty requirement. The armistice still stands and, because South Korea never has agreed to the armistice, South Korea and North Korea are still technically at war. I am very thankful that, because of the armistice, I was not sent to the front lines of Korea. After active duty I was required to be in the Ready Army Reserve for six additional years during which period I was subject to active duty call up upon 24 hour notice. I was almost called up for service during the Berlin Airlift. I received an Honorable Discharge from the Army in December, 1961. I am very proud to have served my country.

The Berger family had spent summers at Lake James in Steuben County since 1936 and in 1946 my parents moved permanently to adjoining Jimmerson Lake. After release from Army active duty I lived with them until my marriage in 1962 to Susanna Ellen Lemley, an attractive and vivacious Angola first grade teacher. Susanna and I built a home near my parents on

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Jimmerson Lake. Susanna and I have two children, Susan Elizabeth (1966) and John Christopher (1969).

I decided to start my law career in the small community of Angola rather than in a metropolitan area. I have never regretted this decision. In January of 1956, at the age of twenty-six, I joined two local attorneys, Donald Trennepohl, a graduate of Indiana University Law School, and Wilson Shoup, a graduate of Georgetown University Law School, to form the legal partnership of Trennepohl, Berger & Shoup (we flipped a coin to determine the name sequence). The partnership continued for 15 years until I was elected judge of the Steuben Circuit Court.10

My election for judge of the Steuben Circuit Court was hotly contested. Indiana circuit court judges are elected on a partisan basis with a primary and general election.

Up until 1970, no doubt by virtue of the traditional egalitarian view, Indiana circuit judges were not required to be lawyers and admitted to the bar. In 1970, Article VII of the 1851 Indiana Constitution was amended to provide that all circuit court judges “shall have been duly admitted to practice law by the Supreme Court of Indiana.”

I had to first run in the Republican primary against Olin Dygert, a friendly, fatherly and well respected local Steuben County constitutional lawyer. I won the primary by 87 votes. In the general election I ran against the incumbent democrat judge, Judge Louis Sisler, who had been appointed by a democrat governor two years before to fill a vacancy. The vacancy was created when the Steuben Circuit judge, Roger DeBruler, was appointed to the Indiana Supreme Court in September of 1968.

Running against the incumbent is never an easy task. Further problems with my campaign arose because I was perceived by some as an outsider (not having been born in Steuben County) and because others were not sure that a Harvard graduate would be able to relate to the common man. I ran a vigorous campaign. I sent out three thousand letters and posted signs on about every telephone pole in Steuben County. I went to almost every farm house (sometimes a barn or milking shed) in the county asking for votes. I went to many pot lucks and gave brief presentations as to my many abilities. At one potluck in the basement of the R.E.M.C. an aspiring J. Danforth Quayle, later to be Vice-President, was present and making his pitch to be elected to Congress. His assistant at the potluck was Dan Coats, later to be a Senator and Ambassador to Germany. I won by a narrow margin.11 Both Dans went on to worldly challenges and I stayed home to

serve my community. I am reminded of one of my favorite poems, The Vision of Sir Launfal, by James Russell Lowell:

The little bird sits at his door in the sun,

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Atilt like a blossom among the leaves, And lets his illuminated being o’errun With the deluge of summer it receives; His mate feels the eggs beneath her wings, And the heart in her dumb breast flutters and sings; He sings to the wide world, and she to her nest,- In the nice ear of Nature, which song is the best? On January 1, 1971, in the old high ceiling county courtroom, I was sworn in as judge of the Steuben Circuit Court by the clerk of court before a small group of friends, court personnel and my loving wife and two small children. The elderly bailiff, James Jackson, and court reporter, Iona Crain, presented me with a beautiful walnut engraved gavel which I cherish to this day.

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The Circuit Court

Each of the 92 counties in Indiana is served by a Circuit Court.

Originally, several counties were served by a single judge who presided over the courts of all counties in the circuit. He would go “on circuit” and thus the name circuit judge. The first circuit court that served Steuben County was established in 1839. Originally Steuben County and DeKalb County to the south were served by one circuit judge. Then Steuben County and LaGrange County to the west were served by one circuit judge. This was the situation until about 1950 when Steuben and LaGrange were separated and each had its own circuit court judge.

When I became judge, the court system in Steuben County consisted of the Steuben Circuit Court and two lower courts, a Justice of the Peace Court in the Town of Fremont and an Angola City Court, both of which had jurisdiction limited to traffic violations and small claims. Upon request by either party, a decision of these courts could be appealed and tried de-novo in the Steuben Circuit Court. The circuit court had unlimited general jurisdiction of all matters and was the basic trial court in Indiana. There were five divisions of the circuit court consisting of criminal, civil, juvenile, domestic relations (divorce) and probate (wills, trusts and the administration thereof). All divisions were interchangeable and administered at the same time by the judge of the Steuben Circuit Court.12 There was only one judge and I was the judge. My court personnel consisted of a Court Reporter, Iona Crain, who reported all evidence, testimony and court actions by shorthand or on an old tape recorder, a Bailiff, James Jackson, who acted as a receptionist and was in charge of the court room and juries, and a Probation Officer who usually was a minister and was part time. I immediately elevated the probation office to full time and appointed Thomas Hanselman, a former Steuben County Sheriff, as Probation Officer. Judgments of the circuit court could be appealed to the Indiana Court of Appeals or in appropriate matters, to the Indiana Supreme Court. All murder convictions, sentences and judgments were appealed directly to the Indiana Supreme Court. Many people think that if an accused is found guilty that he or she can appeal to a “higher court” and get a new trial before an appellate court. This concept is wrong. A defendant gets only one chance to have a trial and that is before the circuit court. An appellate court cannot substitute its opinion of the facts for that of the jury and trial court. No new evidence is presented before an appellate court. The appellate court will only review the evidence presented at the trial court. The appellate court will review whether the trial court evidence favorable to the State is sufficient to sustain a verdict of guilty and only if it does not, will it reverse the conviction. A guilty verdict by a jury will be overturned only if “no reasonable person could have reached that decision”. Rarely is a verdict reversed on this basis.

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The appellate court primarily rules on errors of law that the trial judge may have made. Examples of errors of law are an improper jury instruction given by the judge, or the judge allowing improper evidence or testimony over proper objection to be introduced by counsel. The Appellate Court must find a serious and prejudicial error of law made by the trial judge in order to reverse a guilty verdict. Therefore, David James Roberts realistically would get only one chance to defend himself against the charges brought against him. He would have to seek a not guilty verdict from the Steuben Circuit Court jury.

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PART TWO

THE TRIAL

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5

The Grand Jury

Johnson Circuit Court

March 15, 1974

Indiana law provided that a felony criminal charge could be commenced in two ways. The prosecuting attorney of the county where the crime occurred could file a charging Information setting forth the crime and the person charged, or a grand jury could issue an Indictment setting forth the crime and the person charged. Both would be filed in the circuit court of the county where the crime occurred. A grand jury in Indiana consists of six members. It is convened by the circuit judge either by the judge deciding to convene a grand jury or at the request of the prosecuting attorney. The grand jury in secret hears and examines evidence presented by the prosecuting attorney concerning crimes to determine whether an Indictment should issue charging a defendant (called a Target under present Indiana law) with a crime. If an Indictment is issued it is called “A True Bill.” If the grand jury decides that an Indictment should not be issued it is “Not a True Bill”, which was originally called an “Ignoramus” (We know of no facts) in England. Even though the jurors have the right to call witnesses, in practice the prosecutor decides which crimes to present and which witnesses to call. In this way, the prosecutor may shape the proceedings to almost ensure an Indictment being issued or to suggest that the grand jury decline to indict. The proceedings are usually ex parte and the defendant has no knowledge thereof. Any member of the grand jury also has the right to request his fellow jurors to commence an investigation as to any offense. A grand jury in issuing an Indictment does not determine the guilt of a defendant. It merely finds that from the evidence presented to them that the defendant probably committed the crime. An Indictment and an Information are merely methods to officially charge a defendant with a crime. Whether the defendant is guilty (beyond a reasonable doubt) will be up to a judge or jury. At trial, the jury is instructed by the judge that the filing of an Information or Indictment is no evidence of guilt. When I was judge a grand jury was required by law to annually examine the condition and management of all county, city and town jails and file a written report with the judge. The inmates always knew when the grand jury was in session as the meals were measurably better.

Often the grand jury option is used by a prosecuting attorney when the prosecutor does not want the sole responsibility for charges being filed or not being filed. This usually occurs when the facts present a circumstantial case or may have racial overtones as in the Roberts case. The Roberts case was commenced by Grand Jury Indictment.

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All federal prosecutions for felonies can only be commenced by grand jury indictment (16 to 23 members) pursuant to the Fifth Amendment. The Founding Fathers wanted to protect the people from arbitrary authority of the government to commence a criminal prosecution. The grand jury would represent the people and protect their interests. Charges could not be brought unless the people sitting on a grand jury decided that charges should be brought. This Fifth Amendment grand jury requirement is not binding upon the states.

Indiana in the 1816 Constitution adopted the requirement of a grand jury for felony prosecutions based upon the same theory to protect the people from arbitrary government action. However, grand juries were increasingly commencing investigations on their own and imposing their views as to proper public order and public virtue, and issuing Indictments based thereon. Their deliberations were in secret and ex parte. As a result of this practice and the rise of Jacksonian individualism, there was great pressure to repeal the Constitutional grand jury requirement. All things done in private were suspect. A compromise was agreed upon and the new 1851 Indiana Constitution provided that the grand jury procedure would remain but that the legislature could provide additional methods to commence a criminal prosecution. The legislature did so and provided that a criminal prosecution could also be brought by the prosecuting attorney by Information. The traditional right of a grand jury to investigate crimes and file Indictments on their own was abrogated by the Indiana legislature in 1981. Henceforth, no Indictment could be filed with the court unless the prosecuting attorney approved. Traditionally there were two types of first degree murder. The first type was knowingly or intentionally taking the life of a human being with premeditation and malice. This was the law at the time of the Roberts trial. Indiana no longer requires premeditation or malice as an element of murder, and adds to the definition of murder knowingly or intentionally killing a fetus that has the ability to live outside the mother’s womb. The second was taking the life of another person which resulted from the commission of a felony (a serious crime). Intent to kill, malice and premeditation was not required. This is called “felony murder.” Indiana still has felony murder. Since the crimes were committed in Johnson County, the facts and circumstances of the crimes were submitted to a six member Johnson Circuit Court grand jury. After hearing the evidence presented by Joe Van Valer, prosecuting attorney of Johnson County, Indiana, the county where New Whiteland is located, the grand jury issued its unanimous Indictment against David James Roberts in six counts:

Count I: Murder in the First Degree by intentionally taking the life of William Harold with premeditation and malice; Count II: Murder in the First Degree by taking the life of William Harold while in the commission of burglary; (felony murder)

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Count III: Murder in the First Degree by intentionally taking the life of Elizabeth Ann Harold with premeditation and malice; Count IV: Murder in the First Degree by taking the life of Elizabeth Ann Harold while in the commission of burglary; (felony murder) Count V: Murder in the First Degree by taking the life of Jenny Lynn Harold while in the commission of Arson; (felony murder) and Count VI: committing First Degree Arson by willfully and maliciously burning a dwelling house.

Under Indiana law at that time Counts I, II, III, IV and V were punishable by life imprisonment. If however Counts II, IV or V were committed by a person with a prior unrelated conviction of robbery, then the penalty was death. Count VI was punishable by an indeterminate sentence of five to twenty years, the exact length to be determined by the Indiana Department of Corrections.

The six count Indictment was filed in the Johnson Circuit Court in Franklin, Indiana, and approved by the prosecuting attorney and judge. The judge issued a formal arrest warrant for David James Roberts to be held without bail which was served upon Roberts. Roberts was already being held on preliminary charges in the Johnson County jail.

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6

Preliminary Hearing

Johnson Circuit Court

March 26, 1974

On March 26, 1974, Roberts, shackled and in the custody of two deputy sheriffs, appeared before Judge Robert Young of the Johnson Circuit Court in Franklin, Indiana, for a preliminary hearing. Joe Van Valer, prosecuting attorney, was present. There were only three other persons in the courtroom. Two appeared to be curious attorneys and one appeared to be a reporter.

Roberts was advised of the charges against him, the possible penalties, and his constitutional rights including the right to be represented by an attorney at no expense to him if he could not afford to employ an attorney. Roberts asked that an attorney be appointed for him and the judge, after an examination of his assets and income, determined that Roberts did not have assets or income available to him to afford engaging private counsel and that pauper counsel should be appointed. The judge then appointed Tom Jones, a Franklin defense attorney, to represent Roberts. The judge then told Roberts that the matter would be set for formal arraignment after he had a chance to confer with his attorney. At the arraignment Roberts would be again advised of his constitutional rights and asked to enter his plea-guilty or not guilty. Roberts then stood up and asked if he could address the court. The judge gave him permission. “Your Honor, a terrible mistake has been made in charging me with any crime. I am innocent. There cannot possibly be any evidence implicating me in these horrible crimes. Please release me without posting bond on my personal recognizance. Let me return to my family and job.”

The judge wondered where Roberts had learned the term “personal recognizance” (it was a legal term that meant his personal promise to return to court when asked). The judge patiently explained to Roberts that the court could not release him. With a charge of murder the law required that he be held without bail. He should talk to his attorney, Tom Jones, before he discussed this matter with anyone. Judge Young then remanded Roberts to the custody of the Johnson County Sheriff to be held without bail.

The prosecutor, Joe Van Valer and defense counsel, Tom Jones, were in their 30s, experienced in criminal cases, well educated, intelligent and always well prepared.

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Tom Jones had never served as defense counsel in a case where the death sentence was involved. Under present Indiana Criminal Trial Rules, he would not have been qualified to serve as defense attorney for Roberts. Now, when a death sentence is sought, the judge must appoint two attorneys to represent the defendant, a lead counsel and co-counsel. They must have at least five and three years criminal litigation experience, five and three years felony jury trial experience, one attorney must have been counsel in at least one case in which the death penalty was sought, and both must have completed at least twelve hours of special training in defense of capital cases within the previous two years.

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7

Bail Hearing

Johnson Circuit Court

September 16, 1974

Even though the Eighth Amendment to the U.S. Constitution prohibits excessive bail, this prohibition has been interpreted not to require bail when the charge is murder. The Indiana Constitution provides that there shall be no bail for murder “where the proof is evident, or the presumption strong.” This concept was incorporated in the original 1816 Indiana Constitution and reaffirmed in the 1851 Constitution. Therefore under Indiana law, if a defendant was being held in prison on a charge of murder no bail was available unless the proof of guilt was not evident or the presumption of guilt was not strong. A defendant could challenge his imprisonment without bail by filing a Petition for Writ of Habeas Corpus and To Be Let to Bail with the circuit court asking for an evidentiary hearing. At such a hearing under the Indiana practice at that time, the defendant had the burden of proving that the evidence of guilt against him was not evident nor the presumption of guilt strong. If a defendant can sustain this burden, the court must set a reasonable bail amount and upon posting sufficient bond, the defendant must be released from custody. This practice was codified as of 1981. So much for the presumption of innocence. How does a defendant prove that his guilt is not evident or the presumption of guilt is not strong? The defendant has to call the state’s witnesses and ask them “What evidence do you have against me?” On June 25, 2013, the Indiana Supreme Court in a 3-2 decision (Fry v. State of Indiana) decided wisely that placing the burden of proof upon the defendant was unconstitutional and that henceforth the burden would be upon the prosecuting attorney to prove that the evidence of guilt was evident or that the presumption of guilt was strong. The proof must be by a preponderance of the evidence (more likely than not). Often an experienced criminal defense attorney would file such a petition to be able to find out what evidence the prosecutor had against the defendant with no real expectation of being able to obtain release of the defendant from jail on bail. Roberts through his attorney, Tom Jones, filed such a petition and a hearing date before the Johnson Circuit Court was set. Tom Jones did not expect to be able to obtain bail for Roberts but took advantage of the procedure to obtain what amounted to a free deposition, an examination under oath, of the prosecutor’s witnesses. Roberts surprisingly was confident that the judge would set bail and allow him to post bond and be released.

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The hearing was held September 16, 1974. David James Roberts, Joe Van Valer, prosecuting attorney, and Tom Jones, defense counsel, were present at the hearing before Judge Robert Young. At the hearing witnesses were presented and questioned by defense counsel and the prosecuting attorney. Surprisingly, the actual five gallon gas can which was found at the scene was neither introduced into evidence by the prosecuting attorney nor identified by either of the next two witnesses even though the can was available. The gas can was in the trunk of an officer’s car but never brought into the court room. Richard Roman, an employee of Renkite Shell Station, Indianapolis, was called upon to testify concerning a red gas can and gas purchase. He testified that he had in fact sold gas and delivered a red five gallon gas can to a black male in his late twenties at about 5:30 p.m. on the afternoon before the murders. He was then asked if he could identify and, if so, point to the person who had purchased the gas and received the gas can. Richard Roman nervously looked around the courtroom and directly at Roberts. Richard hesitated and then stated to the judge that he did not see anyone in the courtroom who looked like the gas purchaser or the person who received the gas can. The prosecutor, Joe Van Valer, was stunned as the police had told him that Richard Roman had previously told the police that Roberts was that person. William Hardy next testified. He was another gas station employee at Renkite Shell and was a witness to the gas purchase and can delivery. He also had previously told the police that Roberts was that person. He was asked if he could identify Roberts as the person who had received the gas can. William Hardy gave the same response as Richard Roman. Neither identified Roberts!

Judge Young asked the prosecutor if he had any further evidence to introduce. The prosecutor did not offer any further evidence and Judge Young thereupon found that the evidence of guilt was not clear and convincing, that Roberts did not pose an eminent risk of flight to avoid prosecution, and set bail at $10,000.00.

Roberts was not surprised. He had said all along that they had the wrong man. Tom Jones told Roberts that he would meet with Joe Van Valer and discuss a dismissal. The prosecution obviously had no case.

Roberts immediately posted a $10,000.00 bond and was released from custody.

The prosecutor would not dismiss the case. The prosecutor was up for election in November in a hotly contested prosecutor’s race. How would it look to the Johnson County voters if the prosecutor dismissed triple murder charges approved by six honorable Johnson County grand jurors?

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Change of Venue Hearing

Johnson Circuit Court

September 17, 1974

Indiana law provides that in a criminal matter a defendant can request a change of venue to transfer a case to another Indiana county. Such a transfer is discretionary with the trial judge and can be granted if the judge believes that the defendant cannot receive a fair jury trial in the county where the crime was committed because of prejudicial pretrial publicity. The Harold murders and Roberts subsequent arrest received complete and repeated coverage in the Indianapolis newspapers, which were widely circulated in Johnson County, as well as the local Johnson County newspaper. On September 17, 1974, one day after the bail hearing, Tom Jones filed a Motion to Change Venue from the County with the Johnson Circuit Court contending that such publicity was highly prejudicial to Roberts and that the defendant could not obtain a fair and impartial jury in Johnson County. At the hearing many newspaper articles were presented to the judge and the motion was granted. It is not surprising that the change of venue was granted as the docket is always overwhelming in the circuit court of a non metropolitan county with only one judge. A two or three week jury trial would wreck havoc with the court calendar. Also, the case was certainly inflammatory and was the type of case that a judge does not hesitate to transfer. Counsel were instructed by the judge to try and agree on an appropriate county to which the case would be transferred for further proceedings and trial and if they could not agree, the judge would name three counties from which the parties would alternately strike. Counsel agreed that a county far removed from the metropolitan Indianapolis area would be best. After talking with several attorneys in Angola, the county seat of Steuben County, 120 miles northeast of Indianapolis, concerning the demographic of Steuben County and the competence and experience of the Steuben Circuit Court judge, counsel agreed that the case be transferred to the Steuben Circuit Court, Angola, Indiana, the Honorable John R. Berger presiding. Pursuant to the agreement, the case was so transferred. I was the sole judge of the Steuben Circuit Court. I was first made aware of a criminal case being transferred to Steuben County when, during a coffee break at Bassett’s Restaurant across the street from the courthouse, two local attorneys reported to me that they had been contacted by Franklin attorneys concerning the circuit judge and the community. The local attorneys said it was a high profile murder case with a black defendant. They wanted to know if I knew anything about it. I didn’t.

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I wondered why the defense agreed to transfer the trial of an African-American to Steuben County rather than to an urban area with a large African-American population. The jury in Steuben County would undoubtedly be all white. This concerned me very much.

Although a judge to whom a case will be transferred cannot refuse a transfer to the court, usually the transferring judge will contact the judge of the court where the case will be transferred and obtain consent. This was not done in the Roberts case, probably because Judge Young knew there would be reluctance to accept transfer if the facts of the case were known. When the case file was received and filed in the Steuben Circuit Court on September 23, 1974, I knew that the case would be a tremendous challenge especially since the State was

seeking the death penalty. State of Indiana v. David James Roberts was the only murder trial involving the death penalty over which I presided as judge. A search of the docket of the Steuben Circuit Court reveals that from its inception in 1839 until the present,

except for the Roberts case, there has not been a murder case tried where the death sentence was requested.

I had no way of knowing the physical, mental and emotional strain that there would be upon me and my family.

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9

Arraignment

Steuben Circuit Court

October 21, 1974

On October 21, 1974, David James Roberts, Joe Van Valer, the prosecuting attorney of Johnson County, and Tom Jones, defense counsel, appeared before me as judge of the Steuben Circuit Court in the old court house in Angola for formal arraignment.

Just before the arrival of Roberts and Jones, I was looking out the window of my second story chambers and noticed the arrival by car of two young men with brief cases dressed in suits with ties. I noted to the court reporter and bailiff that two of the attorneys in the Roberts case had arrived. It was only when the men appeared in court and after introductions that I realized that one of the men was the defendant, Roberts. Roberts’ appearance, demeanor, intelligence and communication skills were well above average. He was always dressed in a suit and tie.

After the trial, one of the jurors told me that when the jurors were first present they wondered where the defendant was. At the defense table were defense counsel Tom Jones and David James Roberts. They thought that Roberts was another defense attorney!

When all were present in the courtroom, upon motion, I gave Craig Benson, the Steuben County prosecutor, permission to assist Joe Van Valer in the prosecution, and appointed Steuben County attorney Albert Friend as co-counsel for the defense to assist Tom Jones. Local co-counsel is especially helpful in the selection of local jurors. They also present a local presence which makes a venued cause more familiar and acceptable to the jury.

I then read to Roberts the Indictments and explained the statutes under which the Indictments were drawn including the possible penalties (life imprisonment and death). I further explained in detail the defendant’s constitutional rights including the right to be presented with witnesses against him before an impartial judge or jury, the right to call witnesses on his behalf, the right to a speedy trial, the right not to be compelled to be a witness against himself and the right to a jury trial before twelve jurors selected from Steuben County. I also explained that a judge or jury must find the defendant guilty of a crime beyond a reasonable doubt before he can be convicted of any crime and if there is a jury trial, the jury must be unanimous in its decision before a conviction or acquittal. Roberts then told me that he fully

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understood the charges against him and his rights, entered a plea of “not guilty” to all charges and requested that all matters be tried by jury. The jury trial request was automatically granted and bail previously set by the Johnson Circuit Court was continued without objection. I set the matter for an Omnibus Hearing.

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10

Omnibus Hearing

Steuben Circuit Court

March 11, 1975

At an omnibus hearing the attorneys exchange the names and addresses of prospective witnesses with the substance of their testimony, and a list of proposed documentary and forensic evidence. Also, any motions are considered by the judge. At this time the requirement of an omnibus hearing was fairly new. Previously, the prosecutor and defense counsel did not know prior to trial what witnesses or other evidence would be introduced. This made it especially difficult to prepare a defense. We used to call it “trial by ambush.”

Joe Van Valer had lost his bid in November for reelection as prosecutor of Johnson County. Charles Gantz, an accomplished Franklin attorney in his mid thirties had defeated Van Valer. In spite of the disastrous bail hearing, Charles Gantz had refused to dismiss the Roberts case and was preparing for trial. Mr. Gantz was convinced that Roberts was guilty.

The hearing was held March 11, 1975. At the hearing the newly elected prosecuting attorney of Johnson County, Charles Gantz, submitted a list of forty five prospective witnesses. Defense counsel, Tom Jones, submitted a list of eight. Defense counsel did not know at that time whether the defendant would be testifying.

I submitted for approval or objection twenty-three Preliminary Instructions which I would read to the jury at the commencement of the trial explaining the charges of murder, arson, burglary, the possible penalties, the presumption of innocence, the definition of malice and premeditation, and the fact that each juror must be convinced beyond a reasonable doubt as to the guilt of defendant before he could return a guilty verdict. The instructions were approved.

Both the prosecutor and defense counsel filed Motions in Limine. Such motions if granted would forbid counsel or any witness from mentioning certain facts at the trial.

Defense counsel had indicated that the defense had evidence that Buddy Harold, a prospective witness for the prosecution and the brother of William Harold, had embezzled funds as Executor of the Harold estates and as Guardian for the surviving Harold child, Marie, and that such evidence would be offered to impeach his testimony. Evidence that a witness is a thief can be

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considered by the jury as evidence that the witness is not truthful in his testimony. The prosecutor wanted any such evidence excluded unless, after a hearing out of the presence of the jury, I found any such evidence credible. The defense filed motions to exclude any evidence or testimony of previous charges against Roberts. I will discuss these motions later. I granted all motions. The defendant also filed Notice of Alibi which stated that defendant intended to introduce evidence that he was in fact at the Fall Creek Y.M.C.A. the evening and morning of the murders. This notice gives the prosecutor an opportunity to investigate the alleged alibi prior to trial. Tom Jones requested that I authorize the employment of an arson cause and reconstruction expert at a cost of between $900.00 and $1200.00. I granted the request.

I spent considerable time preparing for the trial. Such preparation consisted mainly of anticipating what witnesses might testify and what objections might be made by counsel to proposed questions. Also possible objections to the introduction of any other evidence needed to be considered. If necessary the judge needed to research the law in advance of trial as to a proper ruling on any objections. In the heat of a fast paced murder trial the judge must be able to rule immediately (and correctly) on all objections. A judge cannot recess the trial to do research every time there is an objection. An incorrect ruling on the admission or exclusion of evidence could result in an appellate court reversal and new trial. Also adding to the pressure upon the trial judge in a jurisdiction where there is only one judge, is the fact that the judge, in addition to presiding over the trial, must also be available to conduct other matters within the court’s jurisdiction. The judge must conduct arraignments for new criminal cases, approve new criminal cases and order warrants to be issued, hold juvenile hearings, make emergency orders in divorce and custody matters, and hold temporary mental commitment hearings.

I also did considerable research in regard to recent United States Supreme Court decisions as to the death sentence and to the qualification of jurors in respect thereto. The constitutionality of the death sentence per se had been presented to the United States Supreme Court many times. It had consistently been upheld. However, certain aspects of the imposition of the death sentence had also been considered.

The United States Supreme Court on June 29, 1972, three years before the Roberts trial, in

Furman v. Georgia had decided that the Georgia and Texas criminal statutes allowing juries, after they had heard the evidence, to decide guilt and impose the death sentence without being given any guidelines as to under what circumstances they could impose the death sentence rather than a life imprisonment sentence was unconstitutional. Any such practice or law violated the Eighth Amendment which prohibited cruel and unusual punishments and was incorporated

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by the Fourteenth Amendment. Defendant Furman, an African-American, had been surprised by a homeowner during an attempted burglary. He tried to flee, tripped, fell and accidentally discharged his gun killing the homeowner. The jury had sentenced him to death. Indiana’s murder and death penalty criminal statutes, together with 39 other states statutes, were similar to Georgia’s and therefore became unconstitutional by virtue of the Furman decision.

The Attorney General of Indiana, Theodore Sendak, had filed a brief amicus curiae (a friend of the court) with the Supreme Court in the Furman case urging that the Georgia and Texas statutes be upheld. This was Indiana taxpayers’ money being spent on a lost cause.

On May 1, 1973, the Indiana Legislature, following the lead of many other state legislatures, quickly passed a new murder and death penalty statute which was intended to avoid the Furman case. The new Indiana law mandated the death sentence in certain circumstances (killing a human being while perpetrating or attempting to perpetrate arson or burglary by a person who has a prior unrelated felony conviction of robbery) and therefore, the legislature reasoned, guidelines were not necessary. The death sentence was mandatory and therefore a jury would have no discretion. No need to provide guidelines. Roberts would be tried under this new 1973 statute. If Roberts was found guilty by the jury of murder as charged, and if Roberts had a prior robbery conviction, the jury by law would have to sentence Roberts to death!

In anticipation of a large number of prospective jurors being challenged and excused at trial, I issued a venire to the sheriff of Steuben County to summon forty prospective jurors to appear for trial on July 1, 1975 at 8 a.m.

The jurors selected for a particular trial were chosen from a pool of prospective jurors selected by the Steuben County Jury Commissioners. The two Jury Commissioners are appointed by the Circuit Court judge. Their function at the time of the Roberts trial was to meet every three months to select a number of prospective jurors from a list of property owners in Steuben County. In the smaller counties, the jury commissioners knew most of the property owners and were very selective in the jurors that they chose. This process was later modified to include voting lists to create a more representative list of jurors. The jury pool is now selected at random from the voting lists by a jury administrator appointed by the judge. No longer are prospective jurors selected by jury commissioners who knew them and their qualifications to be jurors.

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11

Jury Selection

Steuben Circuit Court

July 1, 1975

The right to trial by jury developed as part of the English common law. The first English jurors were selected if possible from among persons who had witnessed the crime. How better to arrive at a fair and just verdict! Jurors usually did not take very long to arrive at a verdict. To insure promptness, no food or beverages were served to the jurors.

Traditionally jurors were “white property owning men.” Qualification to be a juror was often tied to the right to vote. The original federal Constitution did not specify who was eligible to vote-this was left to the states to decide. In the debates by the delegates to the 1850 Indiana Constitutional Convention a resolution was offered to grant “universal suffrage.” One delegate stated, “According to our general understanding of the right of universal suffrage, I have no objection to the proposed resolution but if it be the intention of the mover of the resolution to extend the right of suffrage to females and Negroes, I am against it. ‘All free white males over the age of twenty-one years’-I understand this language to be the measure of universal suffrage.” What “universal suffrage” meant in Indiana in 1851 was clearly set forth in the 1851 Indiana Constitution. Article 2, Section 2 states “Every white male citizen of the United States of age of twenty-one years and upwards—shall be entitled to vote.” Section 5 states “No Negro or Mulatto shall have the right to suffrage.”

The XV Amendment of the United States Constitution had granted the right to vote to male Negroes in 1870. In a delayed response thereto, in 1881 Article 2 of the Indiana Constitution was amended to delete the requirement of “white” and Article 5 was repealed. Male Negroes were thus granted the right to vote by Indiana law. The 1880 Indiana census listed “White, 1,938,798; Colored, 39,503, including 29 Chinese and 246 Indians and Half-Breeds.” Even though granted the right to vote, jury commissioners in examining the list of property owners and their perceived qualifications to serve as jurors would not select Negroes to serve as jurors for many years.

Women were granted the right to vote by the XIX Amendment of the United States Constitution in 1920 and by the Indiana Constitution in 1921. Even after the passage of these amendments women were still often excluded from jury service on the grounds that their primary duty was to take care of their homes and families. Even if women could vote, strong male

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prejudice (male jury commissioners) continued to dictate that they should not be chosen as the “raw material women might hear in the course of a criminal trial would shock their delicate sensibilities.” It was not until 1936, fifteen years after the Indiana Constitution specifically allowed women to vote, that the first women jurors served in Steuben County.

Although the common law of England was initially incorporated by Indiana courts, several basic changes were made including the qualifications of jurors. Jurisprudence in the United States has adopted the rigorous rule that jurors must not have any prior knowledge of the facts and must not have formed any opinions in regard to the facts or the guilt or innocence of the defendant. In order to obtain such jurors, prospective jurors are questioned as to their qualifications before being selected to serve as a juror. The process of examination is called voir dire, a French phrase meaning “to speak the truth.” On July 1, 1975, at 9 a.m., with the defendant, all attorneys and forty prospective jurors present, the bailiff intoned, “All rise, the Honorable John R. Berger, presiding” and I entered the courtroom from a door behind my bench. Traditionally the judge’s bench and chair were raised about two steps. About twenty feet in front of the judge’s bench were two large desks facing me. One was on the left for defense counsel, his assistant and the defendant, and one was on the right for the prosecutor, his assistant and the chief investigating officer. The twelve seat jury box was to the right at a right angle to the judge’s bench. The witness box was just to the right of the bench. All testimony and proceedings would be taped or written in shorthand by the court reporter who sat just to the left of the bench in her own box.

Historically under the common law, a jury consisted of twelve members. The Constitution provides in the VI Amendment that all persons charged with a crime shall be granted an impartial jury trial. The Constitution does not specify how many members there must be on an impartial jury. The United States Supreme court decided in 1970 that a six member criminal jury for non capital crimes pursuant to a Florida statute was constitutional. Since then many states have passed legislation permitting less than a twelve member jury for certain crimes. Indiana in 1981 passed legislation requiring a twelve member jury for serious felonies and a six member jury for lesser felonies (Class D) and misdemeanors. A misdemeanor is usually classified as a crime providing for a sentence of one year imprisonment or less.

The voir dire examination in the Roberts case then began before a crowded and hushed courtroom. With considerable apprehension and a quiet prayer, I was about to embark upon my greatest test as a judge.

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I welcomed the prospective jurors. I then introduced myself, all attorneys, the defendant and the chief investigating officer. I explained briefly the charges, the possible penalties and the procedure that would follow. First a jury of twelve with one alternate would be selected by voir dire examination. Those not chosen to be jurors would be excused. Then preliminary instructions will be given by me to the jury as to the charges against the defendant and the law which the jury should apply. The jury will then hear opening statements by the prosecutor and defense counsel. The presentation of evidence will then be made, first by the prosecutor and then by the defense. At the close of the evidence, the prosecutor and defense counsel will make closing arguments and I will give the jury final instructions. The jury will then retire to deliberate. During the trial, except for the time the jurors are in court, the jurors will be allowed to separate and carry out their normal lives.

Twelve of the prospective jurors were first seated in the twelve seat jury box and questioned. In some courts, the judge asks all of the questions. I took the traditional approach and allowed the attorneys to ask the questions. The questions were addressed to the initial twelve but all other prospective jurors were instructed by me to listen to the questions. If a juror was excused, another prospective juror was called forth and took the vacant seat in the jury box to be questioned.

Many courts now submit to prospective jurors several weeks prior to trial a jury questionnaire which must be answered under oath. These questionnaires contain basic questions concerning biographical background, prior experience with the law, law enforcement or the court system, ability to serve as a juror, and knowledge of the case and of any prospective witnesses. Some questionnaires are over fifty pages long and subject to presentation and argument before the judge prior to being agreed upon and submitted to the prospective jurors. The attorneys have the opportunity to examine the answers prior to trial to assist them in determining whether to accept or challenge a juror. The use of the questionnaire does not replace voir dire examination by the attorneys at trial but rather supplements and shortens the voir dire.

The 1994 O.J. Simpson questionnaire was seventy-five pages long and contained three hundred and two questions. It included the following questions. “Please state your personal belief regarding each statement. Answer the following four questions by stating: Strongly agree? Agree? Strongly disagree? Disagree? No opinion?1. If the prosecution goes to the trouble of bringing someone to trial, the person is probably guilty.2. The testimony of law enforcement officers is not entitled to any greater or lesser weight merely because they are law enforcement officers.3. Regardless of what the law says, a defendant in a criminal trial should be required to prove his or her innocence.4. A defendant in a criminal trial should testify or produce some evidence to prove that he or she is not guilty.

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5. How big a problem do you think racial discrimination against African-Americans is in Southern California. Serious? Somewhat serious? Not too serious? Not at all?6. Have you ever experienced fear of an African-American? Explain.7. How would you feel if a close family member married an African-American? Favor? Would not approve? Would oppose it? Explain. 8. What is your view concerning the reliability of the DNA analysis to accurately identify a person as the source of blood or hair found at a crime scene? Very reliable? Not very reliable? Somewhat reliable? Unreliable? Don’t know?”

It would be interesting to know how the trial jurors under oath answered this last question as they found him not guilty in spite of the DNA evidence of his blood found at the scene which excluded only one out of one hundred and seventy million as a match.

The procedure for voir dire was to allow alternately the prosecuting attorney and defense counsel to question jurors as to their backgrounds and qualifications. By statute, jurors must be a voter, freeholder, householder, or spouse of a householder. Also, ferryman, policeman, fireman, veterinarians and dentists and those over 65 could be excused from jury service upon request. Grand jury qualifications were more restrictive by Indiana statute. A grand juror could not be insane or in the habit of becoming intoxicated but a regular (petit) juror could! The voir dire examination of jurors by the attorneys provides an excellent opportunity for the attorneys by their questions to stress certain aspects of their case. Roberts’ attorney explained to each juror the doctrine of defendant’s presumption of innocence that followed throughout the trial, and the rule that before conviction a juror must be convinced beyond a reasonable doubt that the defendant is guilty of the crime charged. Each juror was asked if he or she understood the doctrines and if he or she would be willing to accept and apply it. He asked this of all jurors and therefore it was emphasized over and over again. Unlimited challenges to a juror by counsel “for cause” are permitted, examples of which are: the juror is related to a victim or a prospective witness or had an opinion as to guilt. Also, in a murder case, each party had 20 “peremptory challenges” without cause. No explanation need be given to have a juror excused if peremptorily challenged. Peremptory challenges are made by counsel to try and shape the jury to favor their client. In some well funded high profile cases, jury consultants are hired to advise counsel as to which jurors to accept or excuse. In the Roberts case, defense counsel tried to eliminate women, educated, older, middle and upper class jurors. The prosecutor tried to retain such jurors. If this case had been tried in a metropolitan area with a large black population, perhaps peremptory challenges might have been used by the prosecutor to challenge black jurors. A later United States Supreme Court case declared unconstitutional the use of peremptory challenges for the sole purpose of excluding blacks.

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The prospective imposition of the death sentence raised close questions concerning what views a juror could hold concerning such a sentence and not be subject to a challenge for cause. If a juror stated that he or she could never vote for a death sentence, he or she would be excused for cause. If however, a juror was generally opposed to the death sentence, this would not of itself be justification for a challenge for cause. A juror would be qualified if such a juror stated that he or she could possibly vote for the death sentence under a certain set of circumstances even though generally opposed. In the Roberts case there were several prospective jurors who were of this opinion and were not excused by me for cause. Even though not excused for cause, the prosecutor peremptorily challenged them.

In a death sentence case, the typical jury questionnaire asks questions concerning the above beliefs and often asks: “Are you in favor of the death penalty as a punishment for crime? Explain. Do you believe that the death penalty serves any legitimate purpose in our society? Yes? No? If so, what purpose: Punishment? Retribution? Deterrence? Prevention?”

The possibility of a death sentence also posed another problem in selecting a juror. Steuben County residents had rarely been exposed to a person accused of murder. They had never been asked to decide whether a person should be put to death. Several prospective jurors stated that they were not opposed to the death penalty but they could not make a decision that could lead to a death sentence. I excused such jurors for cause.

After a long day of voir dire examination, twelve prospective jurors were accepted by the defense. The cause was continued for further voir dire until the next morning. All prospective jurors were admonished by me to not discuss the case with any one and not to read any articles or listen to any radio or television reports. The jurors were then allowed to separate and directed to return to court at 9 a.m. the next morning, July 2.

During the entire voir dire examination, no questions were asked of the jurors by defense counsel as to a juror’s opinion of African-Americans and if the juror could render a fair verdict when an African-American was the defendant and a white woman was the victim. Only the general question, “Is there any reason why you as a juror could not render a fair and impartial verdict” was asked.

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Jury Selection

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Steuben Circuit Court

July 2 and November 5, 1975

On the next day, July 2, 1975, before the jury assembled, defense counsel called to my

attention an article published the previous day in the Fort Wayne Journal Gazette, a newspaper widely circulated and read in Steuben County.

The article described the trial about to begin in Angola and set forth in detail certain previous unrelated charges against Roberts. Such information would not be admissible at the trial and if read by any juror would be highly prejudicial to the defendant. Defense counsel then made a motion that the entire jury panel be dismissed. I questioned the prospective jurors as to whether any of them had read any article about the trial, and received answers from two jurors that they

had read the article in the Journal Gazette. Since I had admonished the jurors not to read any articles, I was not certain that the responses of the other jurors that they had not read any articles were accurate. It would have been difficult for a juror to admit that the judge’s admonishment was ignored. Because of this uncertainty and to eliminate any possibility of a tainted juror, I dismissed the entire panel. The cause was reset for trial on November 5, 1975.

On November 5, 1975, again with an overflow courtroom, forty prospective new jurors assembled and voir dire examination began. After two days of voir dire, twelve jurors with one alternate were accepted by both the prosecution and the defense. The jury then took an oath to “well and truly try and determine this cause at issue and now on trial and return a true verdict according to the law and the evidence as it is presented to you during this trial, so help you God.”

The jury consisted of three women and nine men. The alternate was a woman. Each party seemed satisfied that it would be a fair and impartial jury (and maybe by their skillful use of peremptory challenges decide in their favor). After selection of the thirteen jurors and jurors being peremptorily or for cause challenged and excused, only six remained of the original forty prospective jurors. The selected jurors were admonished, excused for the day and ordered to return at 9 a.m. on November 10. If more jurors had been needed, the law provided that a judge could order the sheriff to go to any public place (the street in front of the courthouse) and select more prospective jurors from among the previously happy shoppers. They would have to immediately appear before the judge for jury service. This law has now been changed and no longer can the judge order bystanders to be jurors.

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13

The Trial-Preliminary Instructions

Steuben Circuit Court

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November 10, 1975

On November 10, 1975, the courtroom was again filled to capacity with others standing outside the large courtroom doors waiting for a vacant spectator seat. Security was high at all times when Roberts was present including four deputy sheriffs. Roberts’ two brothers and several friends were present throughout the trial. They were thoroughly searched by the deputy sheriffs before being allowed to enter the courtroom. One brother was overheard saying, “He won’t be in jail much longer.” No other Roberts’ family members attended the trial. William Harold’s three brothers and Elizabeth Harold’s sister attended the entire trial. However, since the Harold brothers would be witnesses, they could not be in the courtroom until after they had testified. The Harold’s parents did not attend the trial. All members of the Harold family, except Elizabeth’s sister, were also searched before entering the courtroom. Charles Gantz and his supporting staff, prosecution witnesses, and involved police officers stayed during the entire trial at the new Holiday Inn five miles north of Angola near the Indiana Toll Road Angola exit. Tom Jones and David James Roberts stayed at the nearby Cedar Lodge, a small modest family owned (American) motel. The defense budget was limited by Judge Young and the Johnson County Commissioners who had to approve all defense expenditures.

Iona Crain, the court reporter, who lived in a house in the woods near the courthouse, remembers being so frightened during the trial that she kept all her blinds closed at night at her house. I welcomed the jurors and commenced by reading to the jurors the Preliminary Instructions which included the murder and arson charges, and the fact that as to certain murder charges a second phase of the trial may be held to determine if the death sentence should be imposed. I explained that the trial would be bifurcated to accomplish this. That meant that there would be two phases in the trial. The first would be the presentation of evidence as to the guilt or innocence of the accused on all counts. The second, in the event of a finding of guilt by the jurors on counts II, IV or V, would also be heard later by the same jury in order to decide if the death penalty would be imposed. At the death penalty hearing, the jury could consider additional evidence and statements of counsel.

The bifurcation procedure was not set forth in Indiana law at the time of the Roberts trial. I adopted this procedure however to keep certain evidence that may have been very prejudicial to the defendant that was admissible in the second life or death determination phase separate from the guilt or innocence phase of the trial.

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I also read preliminary instructions to the jurors concerning the Presumption of Innocence-Burden of Proof, Reasonable Doubt, and Credibility of Witnesses-Weighing Evidence as follows:

PRESUMPTION OF INNOCENCE – BURDEN OF PROOF Under the law of this State you must presume that the defendant is innocent. You must continue to believe he is innocent throughout the trial, unless the State proves that the defendant is guilty, beyond a reasonable doubt, of every essential element of the crimes charged. Since the defendant is presumed to be innocent he is not required to present any evidence to prove his innocence, or to prove or explain anything. If, at the conclusion of the trial, there remains in your mind a reasonable doubt concerning the defendant’s guilt, you must find him not guilty.

REASONABLE DOUBT A “reasonable doubt” is a fair, actual and logical doubt that arises in your mind after an impartial consideration of all of the evidence and circumstances in this case. It should be a doubt based upon reason and common sense and not a doubt based upon imagination or speculation. If, after considering all of the evidence, you have reached such a firm belief in the guilt of the defendant that you would feel safe to act upon that conviction, without hesitation, in a matter of the highest concern and importance to you, when you are not required to act at all, then you will have reached that degree of certainty which excludes reasonable doubt and authorizes conviction. The rule of law which requires proof beyond a reasonable doubt applies to each juror individually. Each of you must refuse to vote for conviction unless you are convinced beyond a reasonable doubt of the defendant’s guilt. Your verdict must be unanimous.

CREDIBILITY OF WITNESSES-WEIGHING EVIDENCE You are the exclusive judges of the evidence, the credibility of any witness and the weight to be given to the testimony of each witness. In considering the testimony of any witness, you may take into account his or her ability and opportunity to observe; the memory, manner and conduct of the witness while testifying; any interest, bias or prejudice the witness may have; any relationship with other witnesses or interested parties; and the reasonableness of the testimony of the witness considered in the light of all of the evidence in this case. You should attempt to fit the evidence to the presumption that the defendant is innocent and the theory that every witness is telling the truth. You should not disregard the testimony of any witness without a reason and without careful consideration. However, if you find that the testimony of a witness is so unreasonable as to be unworthy of belief, or if you find so much conflict between the testimony of witnesses that you cannot believe all of them, then you must determine which of the witnesses you will believe and which of them you will disbelieve. In weighing the testimony to determine what or whom you will believe, you should use your own knowledge, experience and common sense gained from day to day living. You may find that the number of witnesses who testify to a particular fact, or one side or the other, or the

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quantity of evidence on a particular point does not control your determination of the truth. You should give the greatest weight to that evidence which convinces you most strongly of its truthfulness.

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The Trial-The State’s Evidence Day 1

November 10, 1975

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After I read the preliminary instructions to the jury, Charles Gantz and Tom Jones made opening statements to the jury. Opening statements are used by attorneys to ingratiate themselves with the jurors and to set forth their case. The prosecutor goes first and then defense counsel. Charles Gantz carefully described the crimes charged and the possible penalties including death. He outlined the witnesses that he would call and the testimony that he expected to elicit. He described the exhibits that he would offer into evidence and their relevancy. He stated that the jurors represented the conscience of the community and, even though it would be a most difficult task for them, he was convinced that, after hearing all of the evidence, the jury would do their duty and find David James Roberts guilty of all charges.

Tom Jones gave a brief statement reminding the jury that, as the judge had instructed, they must presume that the defendant did not commit any crime and that they should not form any opinions as to guilt or innocence until they had heard all of the evidence. He stated that the defendant did not have to prove his innocence and that the entire burden was upon the prosecution to prove the guilt of defendant beyond a reasonable doubt. He stated that, after they had heard all of the evidence, he believed strongly that they would not find Roberts guilty of any charged crime.

In a criminal trial, the prosecutor presents the state’s evidence, subject to cross examination, first. Next the defense counsel presents evidence subject to cross examination. The prosecutor then may present evidence in rebuttal. Upon motion of counsel, all prospective witnesses, except the chief investigating officer, Lt. Robert Allen, were separated from the courtroom and admonished by me to not discuss their testimony with anyone until after the trial. The purpose of separation of witnesses is to prevent a prospective witness from hearing any prior or future proposed testimony and possibly altering their testimony to comply with the other testimony.

The jurors had been instructed by me as to the law and had heard the opening statements of the prosecution and defense. It was now time for them to hear the evidence. In the first phase of the trial the prosecution had to present evidence to convince the jury beyond a reasonable doubt that the defendant had: Intentionally killed William and Elizabeth Ann Harold with malice (ill will) and premeditation (intended to kill in advance of the killing) which required a life sentence and/or Killed William and Elizabeth Ann Harold while committing Burglary (breaking and entering a dwelling with intent to commit Murder or Arson) which required a life sentence and under certain circumstances (to be determined in phase two of the trial) a death sentence and/or Caused the death of Jenny Harold as a result of Arson (intentionally and maliciously burning any part of a house) which required a life sentence and under certain circumstances (to be determined in phase two of the trial) a death sentence and/or

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Committed Arson.

When any witness was called to testify, I would have the witness stand before me and the bench, and raise his or her right hand. I would also raise my right hand, look directly into the eyes of the witness and say, “Do you swear or affirm that the testimony that you are about to give in this matter is the truth, the whole truth and nothing but the truth, so help you God or you do so affirm?” Upon an “I do” from the witness I would ask the witness to be seated in the witness box (the stand). During the first phase of the trial the prosecutor presented forty-five witnesses. The actual testimony of each witness or a summary thereof is presented below.

Prior to trial I had no knowledge of the facts in this case. I knew the charges that had been filed and the fact that there had been a bail hearing at which the prosecutor had failed to present sufficient evidence to have Roberts held without bail. Other than that, I was just like a thirteenth juror about to hear the evidence. The State’s first witness was Gary Harter.

DIRECT EXAMINATION BY MR. GANTZ:Q. Please state your name.A. Gary Harter.Q. How old are you?A. Twenty-six.Q. Where did you live on January 19th, 1974?A. In New Whiteland, Indiana.Q. Calling your attention to the evening of January 19th, 1974, did you have occasion to be in the vicinity of Pine Drive in New Whiteland.A. Yes.Q. Please describe what you did and saw that night and early the next morning.A. Well, I had been out with my girlfriend, who is now my wife, and we had been to a show. I took her home, which was at 719 Pine Drive, and we watched TV for a while. I left and came back to her house at about 1 a.m. and we watched TV some more. I left at about 4:30 in the morning to go home. When I was driving by the Harold house I noticed smoke coming from the house. I contacted a friend of mine, Deputy Adams, who was cruising in the neighborhood. I told him there was a house on fire on Pine and he said “Okay” and went on. He must have notified the fire department ‘cause they showed up a few minutes later.Q. Then what did you do or see?A. We both ended up at the Harold house. We went up and looked around the house, and beat on the windows, to see if anybody was in there, and couldn’t find anybody. We couldn’t hear nobody or see anything through the windows.

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Q. Well, now at the time you left your girlfriend’s house, who is now your wife, could that have been earlier than 4:30?MR. JONES: I am going to object to that, Your Honor. This is his witness. He can’t impeach him as to his testimony.THE COURT: It’s overruled. You may answer.A. Not much before that.Q. Did you see flames when you first saw the house?A. Yeah, very small flames coming out the side window.That’s all I have from this witness.MR. JONES: I have no questions.MR. GANTZ: At this time Your Honor, we would call Charles Long to the stand.

DIRECT EXAMINATION BY MR. GANTZ:Q. Please state your name and address.A. My name is Charles Long and I live in New Whiteland.Q. What is your occupation, sir?A. Assistant Fire Chief of the New Whiteland Volunteer Fire Department.Q. And what are your duties?A. I direct men at the fire and investigate fires.Q. Did you have reason to investigate a fire on the 20th day of January, 1974, at 915 Pine Street in New Whiteland, Indiana, belonging to William and Elizabeth Ann Harold?A. Yes.Q. Can you relate to the court and to the jury what you did?A. When we first got to the scene the fire was going and we-I later went to the hospital with the baby that we removed from the house.Q. When did you arrive at the scene, sir?A. Approximately 4:38 on the morning of the 20th.Q. Okay, and what did you do upon arrival?A. I was directing the fire trucks and laying out and connecting the hoses.Q. What observations did you make?A. There were flames showing from the front window of the house.Q. Where were the flames?A. They were coming from the top of the window of the middle room which was used as a den or television room.Q. What did you do next?A. When the fire equipment arrived I was at the ambulance and when they brought the baby up from behind the house we put the baby in the ambulance and I went with the baby in the ambulance to the Johnson County Hospital.Q. Do you know if the baby was alive or dead when you were in the ambulance?MR JONES: Now show our objection to that, Your Honor, unless there is some foundation for such an opinion. I think the cause of death requires an expert opinion.

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MR. GANTZ: I did not ask for the cause of death. I asked if the baby was dead.THE COURT: I think you could ask the witness if she had any symptoms of life or death.Q. Well, were there any such symptoms?A. I could not say because I was not in the back of the ambulance with the baby.Q. Was the baby crying or moving?A. No.Q. What did you do next?A. I returned to the scene of the fire at about 5:00 o’clock and entered the room where the two bodies were. It was the den. Q. What did you see then?A. The body of a male victim laying face down on the floor, feet next to the door, his head toward the television set in the corner. There was a gas can sitting right next to his shoulder. The body of the female person laying crossways of the room with her feet on the couch face down.Q. Were the bodies clothed or not clothed?A. The female body appeared not to be clothed. The male body looked like it had clothes on the underneath side and they had been burnt off the top-or the back side, I mean. There was burned clothing piled on top of each body.Q. Did you observe anything else in the room?A. Yes. There had been a fire burning in various places in the room and around the door and out into the hallway. The chair and couch was also burned pretty badly.Q. Did you observe other fire damage in the house?A. Yes. There was fire damage to the wall outside the den, to the hallway leading to the kitchen, and toward the living room. There was fire damage to the rug running out to the living room and in the living room. There was a lot of heat damage and the drapes in the front room had caught fire and burned. There was smoke and heat damage which caused peeling of wallpaper and this sort of thing in other rooms in the house.Q. Did you observe any clocks?A. There was a clock in the hallway that leads to the kitchen. The cord on that clock had burned in two. The clock was stopped at approximately four o’clock.MR GANTZ: No further questions.

CROSS EXAMINATION BY MR JONES:Q. Mr. Long did you observe a bathroom in the residence?A. Yes.Q. Isn’t it a fact, Mr. Long, that in that bathroom there was a bath tub filled to bath level with water?A. There was water in the tub, I’m not sure of the exact depth of it, sir.Q. And the female body was nude?A. Yes, sir, as far as I know.MR. JONES: No further questions.

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MR. GANTZ: No redirect examination.

The State will call John Lasiter.

DIRECT EXAMINATION BY MR. GANTZ:Q. Please state your name, residence and occupation.A. I am John Lasiter. I live in Johnson County and am a Deputy Sheriff of Johnson County. My rank is Detective Lieutenant. Q. Did you have occasion to investigate a fire on the morning of January 20, 1974, at the Harold residence on 915 Pine Drive in New Whiteland, Indiana?A. Yes, sir.Q. What time did you arrive at the scene and what did you do?A. I arrived at approximately 5:05 a.m. Shortly after I arrived the draperies in the living room re-ignited and was extinguished by the fire department. I entered the house and went to the family room or den where I visually viewed two bodies. The male body was lying parallel to the south wall of the room. The female body was lying parallel and at right angle to the west wall with one leg on the couch. There was burned clothing over the top of the female body. The female was naked. There was debris from the room over most of the male body. Q. Did you know the subjects that were dead in that house?A. I knew them by name at that time-knew who lived there.Q. What further observations did you make concerning the den or TV room?A. The TV room was charred from obvious fire damage and had a strong odor of gasoline. I observed a five gallon metal can. There was no male clothing in any of the closets in the TV room. There were several neckties knotted together on the chair and floor. There was a chair with several partially burned personal items on the seat-papers such as payment books, checkbook, and the victim’s wallet or purse. All of these items were turned over to Officer Flint for safe keeping.Q. Was there any money or currency in the wallet or purse.A. No. Q. What other observations did you make concerning other rooms in the house?A. There was a small room in the back that had a cot and several barbells, weight lifting devices. There was a partially filled beer bottle on a small table. The room was heavily damaged by the fire. In the master bedroom there was a rack with several guns and a bow and arrow set. In the infant’s room there was a crib. In the bathroom the tub was filled to bath level and the water had a heavy smoke skim across the top. Between the living room and the kitchen was a plastic and wood room divider which had not been burned and was lying on the floor.Q. Did you observe anything with regards to the front living room?A. Yes. There was a ladies coat and a diaper bag in a chair near the front door. There was some fire and smoke damage. There was an area of heavy fire damage on the rug, kind of like a fire trail, leading from near the front door to the TV room where the Harold bodies were. At the start of the trail in the living room near the front door there was a metal cap which we later found fit

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the gas can we found in the TV room. It was a cap with a long flexible pouring spout. Next to the spout we found a book of matches and a pair of black leather men’s work gloves.MR. GANTZ: That’s all I have for this witness.CROSS EXAMINATION BY MR. JONES:Q. Okay, now Lieutenant, did you search the house the day you were up there?A. The best we could do under the conditions.Q. Did you find any male clothing in the closet of the master bedroom?A. Yes. There was several shirts, a uniform type pants of blue wash and iron material. There were no sports coats or suits.Q. Were there any sport coats or suits in any closets in the entire house?A. If my memory serves me correctly, no, there were none.Q. Tell us whether or not you found any money in the entire residence.A. We found no currency or coins in the house if my memory serves me correctly.Q. Did you ever investigate a burglary case?A. Yes, many.Q. In the course of your career as a policeman in Johnson County, isn’t it a fact that this had many of the earmarks of a first degree burglary case?A. With the exception of no forced entry that we found.Q. There was no forced entry at all, was there?A. Not that we found, no sir.Q. In other words, whoever went into that house that night forced open no windows or doors that you could find, isn’t that correct?A. That’s correct.Q. And when you got there, the front door was standing wide open?A. That’s true. The screen door was closed though.Q. Now you indicated that there was a partition that had been knocked down before the fire?A. Yes there was. Q. So what you are telling us is that there was a struggle back over in this room, wasn’t there?A. That was my opinion.Q. Well, we’ve got a struggle and a bathtub full of water and neckties knotted together and money missing, but no forcible entry, right?A. I don’t know that there was money missing because I don’t know that there was money in there before.Q. Your investigation showed that they had been out that evening-been to a movie, had some pizza, a couple of beers before they came home. This indicates that probably there was some money or change in the house when they got home.A. All I know was that we did not find any money.Q. Did you know William Harold prior to his death?A. Yes.Q. Did he work out with weights and was he a person who could probably take care of himself?A. Yes, sir.

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Q. Now, in the course of your investigation did you receive information that the house had been broken into prior to January 19th and that two men’s suits had been taken?A. Yes I did.Q. My point being, Lieutenant, that there was a breakin that same house, wasn’t there?A. Yes, sir.Q. Okay. Now, in the course of your investigation, did you determine whether or not there had been any black people rent a room at the Ruby’s Motel four- tenths of a mile east from the Harold house in New Whiteland?A. Yes sir, I did.Q. Tell the Jury what your investigation disclosed as to when these negroes or blacks arrived at the motel.A. I interviewed the owner and he stated that two black males and two black females rented separate rooms from January 20, 1974, at 12:30 a.m. and left at 3:30 a.m. I showed him a series of photos including one of Roberts and they were negative.Q. Did he tell you any reason at all why these negroes or blacks would have left that motel at 3:30 in the morning?A. No, sir, they did not.Q. Incidentally that’s half an hour before the clock stopped up there at Pine Drive, isn’t it?A. That’s correct.Q. Now in the course of your investigation did you determine that a black male, or negro male, was seen at the Harold residence driving a light tan or gold big type automobile about 6:30 a.m. the morning of the fire?A. Yes.Q. The exact same type of car that you eventually looked for in connection with David Roberts, isn’t that correct?A. That’s correct.Q. Did you determine the identity of the black man who drove that car?A. The volunteer fireman who saw the black man was shown six photos including a photo of David Roberts. He said if he had to pick out one of the people, it would probably be the photo of a person named Douglas Milford, not David Roberts. MR. JONES: I have nothing further.RE-DIRCT BY MR. GANTZ:Q. Isn’t it a fact that you received many leads in this case.A. Yes, sir.Q. And isn’t it a fact that these leads led nowhere?A. That’s correct.Q. Did you find any leads which led elsewhere than to David James Roberts?A. No, sir.Q. Isn’t it a fact that there were many valuables in the house including the guns and they were not taken or missing?A. That’s true.

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Q. Did you attach any significance to the fact that there might have been a prior burglary and that a person named Douglas Milford may have driven by the Harold house the morning of the fire?A. Yes. We investigated further. We could find no leads on the burglary and determined that, in my own mind, Douglas Milford was not involved in the murders.Mr. GANTZ: No further questions

Some jurors wondered why the police had a photograph of David James Roberts. At this point in the evidence there had been no evidence connecting him to the murders.

RE-CROSS BY MR. JONES:Q. All right. You don’t think that this burglary was significant or that another person was identified at the Harold house that morning other than the defendant, or this business about the bathtub being full, none of that you felt was too significant?A. It cleared up the fact that there were no suits at the Harold house.Q. So you did not follow up on any of this?A. I personally did not follow up on the burglary.Q. You had your suspect, didn’t you?A. Well, I-Q. You weren’t looking for somebody other than Roberts, were you?A. Yes, we were.MR. JONES: Nothing further.

Mark Flint, Johnson County Deputy Sheriff was next called by Mr. Gantz.

He testified as to the following: He arrived at the scene at 4:41 a.m. He observed smoke and fire coming from the Harold house. He went around the house looking in the windows and observed a baby crib in the back bedroom. With the assistance of a fireman, he broke through the window and retrieved the baby, Jenny Harold. He went with her in the ambulance to the Johnson County Memorial Hospital and on the way administered cardiovascular resuscitation, closed heart massage and mouth to mouth resuscitation. They arrived at the hospital in about four minutes. Emergency doctors worked with the child for about fifteen minutes and then declared her dead. He returned to the scene and took photographs of the house showing the fire damage, a small tract house built on a slab. He also took photographs of every room in the house, the gun rack, the crib, the bodies, the fire damage, the knotted neckties, the gas can, the cap and nozzle, the matches, the black gloves, the checkbook, wallet and purse, and the turned over room divider. He also testified as to placing hair samples from William and Elizabeth Harold which he had received from the coroner in plastic bags. He also obtained a sample of the liquid which was in the gas can. There was between two and three gallons of gas left in the can. He testified that he turned all samples and the gas can over to the sheriff’s property room. He stated that he had

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been in control of all photographs and that they accurately represented what he had seen. The photographs were entered into evidence and shown to the jury.

1. Photograph of William Harold body in den2. Photograph of Elizabeth Harold body in den3. Photograph of gun rack4. Photograph of crib5. Photograph of gas can nozzle6. Photograph of gas can in den

The photographs are as follows:

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PHOTOGRAPH OF WILLIAM HAROLD IN DEN

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PHOTOGRAPH OF ELIZABETH HAROLD IN DEN

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PHOTOGRAPH OF GUN RACK

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PHOTOGRAPH OF JENNY’S CRIB

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GAS CAN NOZZLE FOUND NEAR FRONT DOOR

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RED GAS CAN FOUND IN DEN

He also testified that he had taken photographs during the autopsy. These photographs were to be offered into evidence when the doctor performing the autopsies testified.

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He was asked upon cross examination if he had taken any footprint imprints, or if he had attempted to take any fingerprints within the house, on the gas can and nozzle, or front door knob. He stated that he had not. Upon re-direct by Mr. Gantz, he stated that there were hundreds of footprints from the firemen and officers and therefore it was impossible to determine any individual footprints. Also the wet and sooty conditions did not allow valid fingerprints to be taken.

Deputy Sheriff Joe Barger then testified that he was in charge of the property room and that the exhibits and materials obtained by Mark Flint were turned in to him and that the same property was at all times in his possession until brought to the court. All physical items observed at the scene including the red five gallon gas with “$5 Deposit” in yellow crayon, the gas can nozzle, purse, wallet, checkbook, ties, matches and gloves were identified and admitted into evidence. There was no further testimony from these witnesses.

Winfrey Burton, Town Marshall of New Whiteland, was the next witness. He testified that he had been at the scene at about 5: 30 a.m. on the 20th of January and had observed the burned house and two bodies. He staked out the house with police ribbons. He also called the coroner, Dr. Palmer, to come to the scene. He then visited with a brother of the Harolds and determined that the older daughter, Marie, had been with the brother. He further testified to obtaining an arrest warrant for David James Roberts and arresting him on January 26, 1974. Marshall Burton also made arrangements for a 1970 gold and tan Buick Riviera found at Roberts’ residence to be impounded. A search warrant was then obtained to search the vehicle and the registration of the vehicle in the name of David James Roberts was found in the glove compartment. The registration was admitted into evidence. At the conclusion of this testimony I adjourned the court for the day. I allowed the jurors to separate (to go home and not be sequestered) and admonished them not to discuss the case with anyone, not to read, see or listen to any accounts of the trial, and not to form any opinion as to guilt or innocence until they had heard all of the evidence, the final statements of counsel, my final instructions as to the law applicable to this case, and had an opportunity to deliberate with fellow jurors. I thanked the jurors and told them to return the next day at 8 a.m.

At this point in the trial the jurors have heard no evidence connecting Roberts to the burglary, arson and murders. The jurors were wondering why Roberts was arrested.

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The Trial-The State’s Evidence Day 2

November 11, 1975

At 8 a.m. the next morning, November 11, 1975, trial resumed. It was Veteran’s Day but I decided not to take a break. Further evidence was presented by the prosecutor.

The first witnesses were Dr. Harley Palmer, Johnson County Coroner and Dr. James Benz, forensic pathologist from Marion County General Hospital who performed the autopsies on William, Elizabeth Ann and Jenny Harold on January 21, 1974. They described in detail the findings. Dr. Palmer’s testimony as to cause of death was:Q. Dr. what is your opinion as to the cause and manner of death of William Harold, Elizabeth Ann Harold and Jenny Harold?A. Well, as to William and Elizabeth, they died of asphyxia.Q. What exactly is asphyxia?A. Asphyxia is the same as a smothering type of death-it’s a lack of oxygen. It may be produced in several ways.Q. And what are the ways in which asphyxia can be accomplished?A. There are numerous ways to obstruct the nasal or nose passage and the mouth passages, any one of which would produce asphyxia.Q. What about compression of the neck-would that be a way?A. Yes, sir.Q. Can you say what method of asphyxia was used on Elizabeth Harold?A. Yes. She had bruising inside her neck structures. She had hemorrhages in her eyes-all very characteristic of a smothering type of suffocation. She was smothered or strangled.Q. How about William Harold?A. He had small hemorrhages within his eyes which is also consistent with asphyxia by smothering. He was smothered or strangled.Q. Could knotted neckties or two inch wide tape have been used to strangle Elizabeth Harold or close her mouth?A. That is possible.Q. Okay. Now in your opinion were William and Elizabeth Harold’s deaths caused by accidental means?A. No, sir.Q. And what was the cause of death of Jenny Harold?A. She died of smoke inhalation and carbon monoxide intoxication.Q. Was her death accidental?A. No, sir.Q. In your opinion Doctor, were William Harold and Elizabeth Harold dead when they were set on fire?

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A. Yes.Q. What else did you observe as to the condition of the bodies of William and Elizabeth Harold?A. There were various bruises, abrasions or hemorrhages on the forehead, eye, nose, chin and necks on both of them.Q. Are such conditions indicative of having been attacked or hit by someone-of a struggle or fight?A. Yes, sir.Q. Doctor, were you able to determine if Elizabeth Harold had been raped?A. No, I was not. Because of her burned condition it was not possible to make any such determination.CROSS EXAMINATION BY MR. JONES:Q. Now Doctor, the tape, the knotted neckties, the asphyxia, the bruises and other conditions of the bodies in no way indicate to you who is the guilty party-you’ll agree with that, won’t you?A. That’s correct.Q. You don’t have any idea about that?A. That’s right, sir.Q. All you know is that these people died-shall we say of unnatural causes?A. Unnatural causes, yes, sir.

Dr. Benz testified that he had observed injuries on Elizabeth Harold’s wrists which were consistent with her arms being bound. He also observed marks on the mouth of Elizabeth Harold possibly from having tape removed. Many large color photographs of the autopsy showing multiple views of the bodies before the autopsy and during each stage of the autopsy were offered as evidence. Defense counsel objected to the introduction of the photographs claiming that defendant admits the death and cause of death of the victims and that the only purpose of introducing the photographs was to inflame the passions of the jury against the defendant. I carefully examined each photograph and admitted only six as follows:

1. Morgue view of Elizabeth Harold body (back side)2. Morgue view of Elizabeth Harold body (face and neck)3. Morgue view of William Harold body (back side)4. Morgue view of William Harold body (face and neck)5. Morgue view of Jenny Harold body6. Blackened throat and lung of Jenny Harold at autopsy

Photographs 1, 3, and 5 are as follows:

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AUTOPSY PHOTOGRAPH OF ELIZABETH HAROLD

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AUTOPSY PHOTOGRAPH OF WILLIAM HAROLD

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AUTOPSY PHOTOGRAPH OF JENNY HAROLD

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The next witness was Dee Corbin of the Indiana State Police Fire Marshal’s Office. He testified as to his extensive training and schooling in fire investigation and eighteen years of experience. He stated that he arrived at the scene at 7 a.m. the morning of the 20th and had made a complete examination of the Harold house. His opinion was that the fire was caused by gasoline igniting and that the inflammable had been contained in the red five gallon gas can found in the den. He stated that it definitely was arson. He testified as to a fire trail on the rug from the living room near the front door, where the gas can nozzle and match book were present, and leading down the hallway into the den or TV room. It was apparent to him that gasoline had also been poured on the Harolds’ bodies and around the den. He estimated that the fire temperature was between 1600 and 1800 degrees.

He gave his opinion that the arsonist may have started pouring the gasoline on the rug in the living room, then down the hallway, and ended up in the den where he poured gasoline on the bodies and around the den. He left the gas can in the den assuming that it would be burned and unrecognizable and returned to the living room. He then set fire to the beginning of the gas trail and left through the front door.

He testified that he had watched Deputy Mark Flint make a drawing of the den which was an accurate representation. The drawing was admitted into evidence and is as follows:

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DIAGRAM OF DEN

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There was a vigorous cross examination by defense counsel Albert Friend. The witness did not change his opinion.

The next witness was James Forbes, a chemist for the Indiana State Police. He testified that he had examined the sample of the fluid taken from the five gallon gas can and that it was premium gasoline. There was no cross examination.

Sherrill Anspagh of the Indiana State Police then testified.

He also had examined the Harold house and stated that effective fingerprints could not be taken because of the wet condition and soot. He had searched Roberts’ gold and tan 1970 Buick Riviera automobile pursuant to a search warrant. In addition to the registration to David James Roberts he found a hair fiber near the gas pedal and turned it over to Ronald Eltzeroth of the Indiana State Police Crime Laboratory for examination and comparison.

The next witness was Ronald Eltzeroth, an expert forensic scientist who worked in the Indiana State Police Crime Laboratory.

He testified to examining and performing tests on various items turned over to him by investigating officers in the Roberts case. No hair sample from Roberts had been turned over to him. He did examine hair samples from the heads of William and Elizabeth Harold and pubic hair from Elizabeth Harold. He had compared them to a human hair sample obtained from a pair of black leather gloves found at the scene near the front door and the hair sample found in Roberts’ car. They were not comparable. The hair sample on the gloves ranged in color from brown to very black. He was asked by Mr. Gantz, “Did the hair sample found on the glove bear any characteristics similar to any particular race?” The answer was, “The hair maintained characteristics of the negro race in that it had a very black, very course texture.” Mr. Eltzeroth further testified that he had examined the gas can and nozzle for latent fingerprints. He stated, “The prints found failed to exhibit a sufficient number of characteristics to determine any identification.” He also examined for fingerprints a burned section of medical adhesive tape two inches wide and the knotted neckties found near the bodies. No prints were found. The cross examination by Mr. Jones was brief.Q. Now, Professor-can I call you Professor?A. Certainly.Q. Are you going to tell us that that hair you found on that glove belonged to David Roberts?A. No, sir, that was not my testimony.Q. I didn’t think it was either. I just wanted to make sure there wasn’t any misunderstanding. That’s all I have of this witness. Thank you Professor.

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The next witness was Robert Forney.

He testified that he was a medical doctor and Professor of Toxicology at the Indiana School of Medicine. He had examined blood samples of William and Elizabeth Harold taken at the autopsies. He found no carbon monoxide in the blood indicating that they were dead before the fire. He found no evidence of drugs. He found that the percent of alcohol in the blood of William Harold was consistent with two beers and the percent of alcohol in the blood of Elizabeth Harold was consistent with two ounces of whisky. At the conclusion of this testimony I adjourned court for the day. I again allowed the jurors to separate and admonished them as I had at the conclusion of the first day. I thanked the jurors and told them to return the next day, November 12, at 8 a.m.

The trial jurors still have heard no evidence connecting Roberts to the burglary, arson and murders. The next day’s evidence would attempt to connect Roberts to the crimes. I wondered why the hair sample from the glove found inside the Harold’s living room near the front door was not compared to a hair sample from Roberts. This was before DNA but it could have been determined that Roberts’ hair had many similar characteristics to the hair found on the glove. There was no evidence that a hair sample had been obtained from Roberts or if obtained and examined, what the results were.

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16

The Trial-The State’s Evidence Day 3

November 12, 1975

At 8 a.m. the next morning, November 12, 1975, the cast again assembled and further evidence was presented by the prosecutor.

Phillip Barrier and Rita Barrier were the first witnesses of the day.

They testified that they were good friends of the Harolds. At approximately 8:30 in the evening of January 19, 1974, they stopped by the Harold house. They went inside and visited for a few minutes with William and Elizabeth Harold (Billy and Ann). They noticed no damage inside the house. They were familiar with the room partition and stated that it was intact and standing up. The Harold children, Marie and Jenny, were at William’s brother’s house. The four of them then went to the Regency Drive-In Movie Theater in Franklin. Phillip Barrier was driving. After the movie they went to the Pizza Inn in Franklin. The boys split a pitcher of beer and the girls had cokes. Then they went to Green Acres Tavern in Franklin and arrived at about 2 a.m. The boys had two beers apiece and the girls had one drink. They stayed there until about 2:45 a.m. They then drove to New Whiteland and picked up the Barrier children. Then they drove to the Harold house. They arrived there at about 3 a.m. or a little after that. When they arrived at the Harold house the Harolds noticed that the porch light was not on. They had turned the porch light on earlier and when they left the light was on. William Harold went to the front door and Elizabeth Harold drove away in her car to pick up their daughter Jenny. That was the last time they saw William and Elizabeth Harold alive. They further testified that William and Elizabeth “were getting along that night and were not arguing or fighting or anything like that.” There was no cross examination.

The next prosecution witnesses were Delores Buress and Patti Buress Regent, her now married daughter.

They testified that at the time of the murders they lived about half a block from the Harold house and that on the night of January 19, 1974, they had seen a goldish big car which was between a ’68 and ’73 Buick, strange to the neighborhood, parked right across the street from their house at 11 p.m. and also at about 2:15 a.m. the next morning. There was a street light right next to the car. The car was facing away from the Harold house.

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They said that cars were never parked where the goldish car was parked unless they were coming to their house. The car was gone when they were awakened at 4:30 a.m. by the fire truck sirens. When shown a photograph of Roberts’ car Delores Buress stated that she did not get a good look at the goldish car and Patti Regent said, “I couldn’t identify it positive.” Upon cross examination they stated that they had not seen anyone in or near the car.

Cindy Jenner, a teenage neighbor of the Harolds, testified next.

She stated that she often babysat for the Harolds and that on January 19, 1974, she had babysat for them from 7 a.m. until they got home from work at 5:30 p.m. She also stated that the hall wall clock was working and kept accurate time. Also while at the Harold home she received a telephone call between two and four from a male concerning some sort of survey. The caller wanted to know if the Harolds were home and if not, when he could talk to them. She told him that they would be home by six o’clock. Cindy further testified that the Harolds returned home about 5:30 p.m. Later when being driven to a ballgame by her father at 8 p.m., she observed that the porch light was on at the Harold house. On her return home at about 12 a.m. the porch light was off, the hall light was on, and the curtains pulled in the den at the Harold house. She said that the Harolds usually turned the porch light on when they left the house and turned the internal lights off. Upon cross examination, Cindy stated that she had not seen anyone at or near the Harold house. She also stated that she could not identify the caller’s voice as that of Roberts since she had never heard his voice.

During the testimony of the witnesses who lived in the Harold neighborhood, I made a time line on my yellow note pad as to when the gold car was seen, when the porch light was on or off, and when the Harolds were home. The time line was:

January 19, 19747-8 p.m. No parked gold car8 p.m. Porch light on8:30 p.m. Harolds leave home-porch light left on11 p.m. Parked gold car seenJanuary 20, 197412 a.m. Lights on in den and porch light off2:15 a.m. Parked gold car seen3-3:15 a.m. Harolds arrive home-porch light off3:15 a.m. Elizabeth Harold returns home with Jenny4 a.m. Clock stopped from fire4:30 a.m. Fire observed at Harold house-gold car gone

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From the above time line it appeared that the driver of the gold car could have been parked near the Harold house, observing or at the Harold house from 11 p.m. until 4 a.m. Perhaps the driver left for awhile and was at the Waffle House between 1-2 a.m. looking for the Harolds (as testified to later by Terry Harold) and then returned. All three Harolds were in the house from about 3 a.m. until their deaths which, as to William and Elizabeth, was no later than about 4 a.m.

Winfred “Buddy” Harold next testified.

He testified that he was the brother of William Harold. He stated that that he was the operator of a Standard gas station located at the intersection of U.S. 31 and Main in New Whiteland. The station was about one mile from William Harold’s house. He stated that on January 19, 1974, he had three employees, his two brothers Terry Harold and Elijah “Junior” Harold, and Joe Moore. He further testified that in the late afternoon of January 19th at about 6 p.m. a black male in his late 20s purchased $1.00 worth of gasoline for his car from attendant Joe Marcos Moore, 17. He stated that the male had medium black skin, a medium afro haircut, a medium mustache, long sideburns, and wore a black leather jacket. He was driving a 1969 or 1970 tan and gold Buick Riviera. The car had no hubcaps and the driver side skirt was missing. Winfred Harold later viewed several automobiles at the Indiana State Police Post and testified that after looking at the 1970 Buick registered to David James Roberts that the car was the one, or identical to the one he had seen at his gas station on the 19th. He was asked by the prosecutor if the defendant, David James Roberts, sitting at the defense table, was the person who had purchased the gas. Harold said he did not know. Before cross examination of Winfred Harold, pursuant to the Motion in Limine, and before me, Winfred was examined under oath by defense counsel out of the presence of the jury concerning his alleged theft of Harold estate and guardianship funds. I ruled that there was not creditable evidence of any such theft and that such matter could not be raised by defense counsel upon cross examination.

Upon cross examination Winfred stated again that he could not now identify the defendant as the person who had purchased the gas.

The defendant at the time of the trial had a short afro, no sideburns, no mustache and was thinner than he had been in January of 1974.

Terry Harold was the next witness. He stated that he was working at the Harold gas station at that time and verified Wilfred Harold’s testimony as to the description of the black person who had purchased the gas. He stated that the vehicle at the gas station was like the one he had seen at the State Police Post and registered to Roberts. He could not identify the defendant in the courtroom as the person who had been driving the gold Buick. He said he did not get a really good look at the driver.

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Terry Harold then continued his testimony. He stated that at between 1:00 a.m. and 2 a.m. on January 20th, the morning of the murders, he was at the New Whiteland Waffle House. Part of his direct testimony states:Q. Did you notice anything unusual at the Waffle House?A. Yeah, I was waiting for my bill and there was a guy came in and looked around and he left again.Q. What did he look like?A. He was colored and had a black leather coat on. He probably stood six feet. Maybe more. He looked like the fella that I saw at the gas station earlier.Q. OK. What drew your attention to this man?A. Well, you know-I thought it was awful strange for a colored guy to just come in there and look around and leave again. Well, I been goin’ there for about three or four years now and that was strange-having some guy come in there, done that and just left. Also, there were no colored that lived in New Whiteland or came to the Waffle House.

Soon after the murders, Terry Harold was shown six photos of African-American males including Roberts and he stated that the photo of Roberts was “very close” to the person he had seen at the Waffle House.

Terry also testified that he had been at his brother William’s house often and on many occasions had observed water left in the bath tub even though no one was taking a bath.

Elijah “Junior” Harold was the next witness.

He stated that he also was working at the Harold gas station at that time and verified Wilfred Harold’s testimony as to the description of the black person who had purchased the gas. His description of the car was the same given by Wilfred and Terry Harold. The car had no hubcaps and a fender skirt was missing. He also had viewed vehicles at the State Police Post and testified that the car at the gas station looked the same as the one at the Police Post which was registered to Roberts. He could not identify the defendant in the court room as the person who had been driving the gold Buick. He further stated that he was very close to his brother Billy and often stayed overnight with Billy and Ann. Billy and Ann were very close, got along very well and never had any arguments. Billy had been a paratrooper in Vietnam. Upon cross examination of Wilfred, Terry and Elijah Harold, they stated that they were not positive that the car was Roberts’ car.

The prosecutor then called Joe Moore to the stand. His testimony is as follows:

DIRECT EXAMINATION BY MR. GANTZ:

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Q. State your name please.A. Joe Marcos Moore.Q. Okay. And where do you live, sir?A. New Whiteland, Indiana.Q. How old are you now?A. Eighteen.Q. Are you in anyway related to the Harolds of New Whiteland?A. No.Q. Now, drawing your attention to January 20, 1974, were you working at the Harold Service Station that day?A. Yes.Q. Now, do you recall anything unusual that afternoon?A. In what way?Q. Did you see-ah-did you see any unusual cars?A. No, not really.Q. All right. Did you wait on any persons in a Buick automobile?A. Yes.Q. And do you recall any one sale in particular?A. Yes, I do.Q. All right. And when did this sale take place?A. About 4 o’clock in the afternoon.Q. Okay. Now, did you sell some gas to someone?A. Yes, I did.Q. And is that your job to sell gas?A. Yes.Q. Did you make a sale of gas to this customer?A. A dollar’s worth.Q. What kind of gasoline was that?A. Premium.Q. Okay. And did you have an opportunity to look at this car?A. Yes.Q. And what was the appearance of this car?A. You know-it didn’t look-you know-in real good shape or anything. Q. Did you have an opportunity to see the color of this automobile?A. Yes. It was a brownish gold color with a vinyl top.Q. And what kind of an automobile was this?A. It was a Buick Riviera-about a ’68 or ’9.Q. Did you have an opportunity to observe the driver of this automobile?A. Not real close, no.Q. Well, do you-is there anything at all that you can say as a description of this customer?A. Just that he was a black man.

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Q. Can you say if he was a large man or a small man.A. Well, he never got out of the car-you know-but he didn’t sit to the shoulder though-you know-just kinda-I’d say about 6’ 1” or so-you know-the way he sat in the car.Q. After the 20th did you have occasion to view any cars at the Indianapolis State Police Post?A. Yes, I did.Q. Did you individually?A. Yes.Q. And, did you see any cars that you recognized?A. Maybe.Q. And what car did you recognize?A. A Buick Riviera.Q. Well, Mr. Moore, was this the same Buick Riviera that you saw in the station the afternoon of January 19, 1974 that you put gas in?A. I’m not sure. It probably was.Q. Now, back to the gas station. How long did it take you to put gas in the car?A. Not very long at all.Q. Okay. And then what did you do when you put the gas in the car?A. I put the cap back on and he gave me a dollar.Q. Okay. Was that the end of the transaction?A. No.Q. Well, what else took place?A. Well, after he gave me the dollar, he asked me if-MR. JONES: Just a moment. I want to preserve my record on this. We object to any statements made by a third party declarant outside this courtroom and not subject to cross-examination. This is clearly hearsay.THE COURT: Objection is overruled-you may answer.Q. What took place at this time?A. Well, he gave me a dollar and as I was walking back toward the building he asked me if I knew where Pine Drive was.Q. And what did you tell him?A. I just pointed that direction and gave him what streets to turn on.Q. Is Pine Drive the same street that William and Elizabeth Harold lived on?A. Yes it is.MR. GANTZ: Thank you Mr. Moore. No further questions.CROSS EXAMINATION BY MR. JONES:Q. A few questions, Marcos. How was this man in the automobile dressed?A. Ah-well, I don’t remember of him having a tie, and I don’t remember him being real sloppy-you know.Q. Is it a safe statement to say that you really don’t know at this point anything except he didn’t have a coat and tie on?A. Yes.

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Q. Now think very carefully Marcos. Was the man who bought the gas the defendant David James Roberts?A. I don’t know. I did not get a good look at him.MR. JONES: Okay, Marcos, that’s all I have.MR. GANTZ: No further questions. At the conclusion of this testimony I adjourned the court for the day. I again allowed the jurors to separate and admonished them as I had at the conclusion of the first day. I thanked the jurors and told them to return the next day, November 13, at 9 a.m.

The jurors have begun to hear some evidence possibly connecting Roberts to the burglary, arson and murders. A gold car was seen the evening and early morning of the murders parked very near the Harold house, a gold or tan 1970 Buick Riviera driven by a black man the late afternoon before the murders was at the Harold service station, the driver had asked directions to Pine Drive where the Harolds lived, and the car was like the one registered to David James Roberts. No witness could identify Roberts as the person who had asked directions to Pine Drive. The next day’s evidence would attempt to further connect Roberts to the crimes and provide a possible motive.

Tom Jones and David talked briefly on the front steps of the courthouse. They were encouraged by the day’s testimony.

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The Trial-The State’s Evidence Day 4

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November 13, 1975

At 9 a.m. on November 13, 1975, court was again called into session. All parties and counsel were present. Further evidence was presented by the prosecutor.

The first witness called to the stand was Lt. Robert Allen of the Indiana State Police. He was the chief investigating officer of the Harold murders.

Lt. Allen testified that he had interviewed Harold family members concerning the personal and business lives of William and Elizabeth Harold. He was advised that William Harold worked at an Indianapolis Sears Roebuck in the automotive department. On October 10, 1973, a scheduled day off for William Harold, he was called in to work for another sick employee. Further investigation revealed that on that day he sold and had installed three tires and some muffler work done on a car for a black male in his late 20s using the name Robert Johnson. The purchaser drove the car away without paying for the tires or muffler work. The purchaser was later picked out by William Harold from a series of photographs. The photograph was of David James Roberts.

The next witnesses were Dale Fleetwood, service manager at the Indianapolis Sears, and Floyd Huckleberry, assistant manager at Sears.

They testified that William Harold worked under their supervision and that they had an October 10, 1973 sales slip and work order signed by William Harold as the salesman which named a Robert Johnson as the purchaser for three tires and muffler work. The sales slip and work order contained the serial numbers of the tires, indicated that it was to be a cash transaction and that such work had been performed. At the end of the day the car keys had not been picked up, the purchase price had not been paid, and the car was gone. They reported the apparent theft to the security officer at Sears, Jerry Quackenbush. The sales slip and work order were then admitted into evidence and shown to the jury. The purchasers name was Robert Johnson of 3357 Meadows Court and the total was $320.88. The serial numbers of the tires and the fact that the vehicle was a tan ’70 Buick was also shown.

The prosecutor called Jerry Quackenbush as the State’s next witness. He stated that in October of 1973 he was a security officer for Sears and Roebuck in Indianapolis and a police officer of the City of Indianapolis. He had eleven years experience in criminal investigation. He had participated in the investigation of a theft of tires on the 10th of October, 1973 at the Indianapolis Sears Roebuck automotive store and service station.

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He stated that he was the officer who had shown several photographs to William Harold and that William Harold had picked out the photograph of David James Roberts as the person who had ordered the tires and muffler work. Officer Quackenbush was then asked how he knew the person in the photograph was Roberts. He answered that he had found the identity “from police records.” This answer took defense counsel by surprise and he immediately objected on the basis of hearsay and the best evidence rule (that the actual photographs should be shown at trial to the witness). I overruled the objections and allowed the answer to stand. The proper objection should have been that the answer “from police records” indicated that Roberts had a criminal record and that evidence of a defendant’s past crime is highly prejudicial and inadmissible. At the omnibus hearing I had ordered the prosecutor and any of his witnesses not to refer to or mention anything that would indicate a previous criminal record of Roberts. Defense counsel was in a bind though. If he objected to the “from police records” statement by officer Quackenbush for the proper reason, he would just be emphasizing to the jury that there was a police record. Officer Quackenbush also testified that he had checked out the address on the sales slip and no one had ever heard of Robert Johnson at that address. It was a false name and address. He next was asked by the prosecutor:Q. And what did you do next?A. I went to the parole office to find out where Mr. Roberts lived and where he was employed.MR. JONES: Your Honor, does-now wait a minute. No objection yet. Again defense counsel was taken off guard. Pursuant to my previous order the witness should have been instructed by the prosecutor not to refer to any inquiry at “the parole office.” This definitely would call to the attention of the jury that Roberts was on parole. This was highly prejudicial. A person is not on parole unless he has committed a serious felony. If Mr. Jones had objected, I would have immediately sustained the objection and would have instructed the jury to disregard the fact that officer Quackenbush had inquired at Roberts’ parole office. A lot of good that would have done. Once the cat is out of the bag- - -. Sometimes a police witness will try and help the prosecution by slipping something into their testimony. Probably in this case it was inadvertent. I assumed that officer Quackenbush had been instructed by Mr. Gantz not to make any statement which would indicate Roberts’ previous record. I called the attorneys to the bench for a private conversation and told Mr. Gantz that, except if Roberts testified or except in phase two of the trial, if any prosecution witness ever again made any reference to the previous criminal record or parole of Roberts that it could lead to a mistrial if requested by the defense. I adjourned court for a few minutes so that Mr. Gantz again could privately instruct his witness concerning any reference to Roberts’ criminal record or parole.

Officer Quackenbush then described going to Roberts’ employer’s office and viewing a bronze ’70 Buick Riviera registered to David James Roberts. He compared the serial numbers on the three tires on the Buick to the serial numbers on the work order and they matched.

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On October 19, 1973, he later arrested David James Roberts pursuant to a charge of misdemeanor larceny (theft) filed in the Indianapolis Municipal Court. If convicted, Roberts could be sentenced to one year in prison and fined $5,000.00. Roberts posted bond and was released from custody. After several trial date settings and continuances, the final trail date was set for February 8, 1974.

Officer Quackenbush then identified the defendant sitting in the courtroom as the same person he had arrested on the larceny charge.

The next witness prosecution witness was Deidre Edwards.

She testified that she was a Court Reporter and that on request of the attorney for David James Roberts, Harold Chavis, she reported a written sworn Deposition given by William Harold on January 15, 1974. Present at the Deposition were William Harold, the deponent, Harold Chavis, attorney for David James Roberts, and Joseph Karen, an intern with the Marion County Prosecutor’s Office. In the Deposition, William Harold described the entire transaction concerning the theft of tires and positively identified David James Roberts as the person who had ordered the tires and muffler repair.

The Deposition was offered in evidence and defense counsel strongly objected. He claimed that defendant would have no opportunity at trial to cross examine William Harold as he was deceased. How could defendant show any racial bias of William Harold? How could he bring out that William Harold was not sure of the identification? How could he show that William Harold had not dealt with many black men and therefore was not good at identification of them? Were black faces confusing to him? How could he show that William Harold had a motive to make a quick identification in order to get his sales commission? I overruled the objection and admitted the Deposition into evidence. The Deposition was then read to the jury by the prosecuting attorney. Trial of David James Roberts was of course never held as the primary witness, William Harold, was murdered on January 20, 1974, five days after his deposition identifying Roberts and nineteen days before the final trial date.

The jury had now heard evidence concerning a possible motive for Roberts to kill William Harold, the sole witness against him in the theft charge. The jury also had heard testimony that Roberts was on parole. A theft conviction would violate Roberts’ parole and possibly lead to the imposition of a prison term for parole violation in addition to whatever sentence would be imposed on the theft conviction. Motive is not an essential element of any crime and need not be proven by the prosecution. However evidence of motive can be introduced and is often very persuasive on the question of guilt.

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The next witness called by the prosecution was Indiana State Police Lieutenant Robert Allen. He had testified before. He stated that he was the chief investigating officer in the Harold murders and in that capacity had interviewed 41 residents who lived in the vicinity of 915 Pine Drive. He also prepared and distributed 1000 copies of a flyer in an attempt to locate the source of the gas can found at the scene. The flyers were distributed on January 26, 1974, to police departments in New Whiteland and Indianapolis. As a result of the flyer, he received information concerning the sale of a similar gas can by the Renkite Shell gas station in Indianapolis on January 19, 1974, the afternoon before the murders. At the Shell station he interviewed the owner, Elwin Renkite, and two employees, William Hardy and Richard Roman. A copy of the flyer was then admitted into evidence.

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Arson and Homicide 1-2044

REFERENCE: ISP Case # 44F7882

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Attempt is being made to locate source of 5 gallon gasoline can at scene. Markings on can suggest it may be a "loan out" or "deposit" can.

Can pictured, replica of one in question and is as follows: Five 5 gallon capacity, red in color, with yellow word ''GASOLINE" in approximately

2" letters. In smaller letters NAPA, Alcamp, Indiana USA. Stock # 14-1872, can has yellow plastic air valve, white plastic on handle and approximately 2 1/2'’ spout — bears yellow crayon markings on side: "$5.00 this can" Request checks be made with stations to determine if they are missing red, 5 gallon can — only in past two (2) months.

Any further information contact: Det/Sgt. R. L. Allen, Indiana State Police

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Lt. Allen then stated that, pursuant to an arrest warrant, he had arrested David James Roberts on January 26, 1974, in Indianapolis and taken him to the Johnson County jail. Roberts had a pistol with him when arrested. Upon arrival at the jail Lt. Allen read the “Miranda Rights” to Roberts, allowed Roberts to read his rights, and asked him to sign the form acknowledging that he understood his rights. Roberts “Preferred Not to Sign” the form. Lt. Allen further testified that at that time Roberts appeared to understand his rights, was not under the influence of drugs or alcohol and made no complaints of a medical nature. Roberts did not request an attorney at that time and stated that he was willing to answer questions. The Miranda Rights Form was admitted into evidence.

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CONTINUATION OF DIRECT EXAMINATION OF LT. ALLEN BY MR. GANTZ:Q. And did you have conversations with Mr. Roberts after the reading of the rights?A. Yes, sir.Q. And what were those conversations?A. I made inquiries as to his activities particularly on the dates of January 19th and January 20th, 1974. He answered that on January 19th at sometime between twelve noon and 1:00 p.m. he had went to Ayr-Way East, which is located in Indianapolis, and purchased points and plugs for an automobile. Then he purchased five or six dollars worth of gas at a Shell filling station across from Ayr-Way. Q. Did you have other conversations?A. Yes. I asked him what he did after 1:00 p.m. He advised he was working on an automobile behind the residence of Callie Loraine Myers, which is on Kingston Street, and behind her mother’s house, at 604 Taft Road. Callie’s mother’s name was Florence Loraine. He worked on the car until the conclusion of the U.C.L.A. –Notre Dame basketball game. Q. What other conversations took place?A. I asked him who he might have talked to while at the residence. He said he had talked to Callie Myers, her brother LeRoy Loraine, and he had a brief conversation with her brother Dewey Loraine. I asked Roberts what he did after the ballgame and he said he left the Loraine residence to test drive his automobile. He said that at about 6:00 p.m. that evening he and LeRoy Loraine had went to Mandarin Inn, Indianapolis, a Chinese restaurant, and obtained some carryout food and returned to the Loraine residence where that food was consumed. I asked him who was present at that time and he stated that Callie Myers, Mrs. Florence Loraine, and LeRoy Loraine were present at the meal.Q. Were there other conversations?A. Yes. He said that after the meal he was at the Loraine residence watching television with LeRoy Loraine, and that at approximately 10:00 p.m. on that evening he went to Rudy’s Liquor Store and purchased a half pint of vodka and some Colt 45, returning to the Loraine residence and watching TV and drinking those beverages with LeRoy until approximately 1:30 a.m. Q. Were there any other conversations?A. Yes, sir. I asked him his whereabouts after 1:30 a.m. He advised that he then returned to the Fall Creek Y.M.C.A where he was staying and upon arrival inquired of the switchboard operator if he had any calls. He then retired. He further stated that he arose the next morning at approximately 6:00 a.m., having went to sleep with the window open, awaking cold. He went out into the hallway and called the switchboard again inquiring if there had been any calls for him. He then went back to sleep until approximately 8:00 a.m. on the morning of the 20th. He said he dressed and proceeded to the Loraine residence and did have the noon meal at the Loraine residence.Q. Were there any other conversations at that time which you recall?A. Yes. I asked him if anyone else had used or borrowed his Buick Riviera over the weekend of the 19th and 20th. He stated that he was the only one to use the car.Q. Any other statements by Mr. Roberts?

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A. Yes, sir. Roberts asked what this was all about. There were conversations regarding the charges he had been arrested for, as to the location of the alleged crime, and as to who the victim was. There were conversations regarding a deposition which had been taken the proceeding week. I asked him if he was aware of the deposition being given, he answered, “Yes.” I asked him if he was aware of the individual who had given the deposition and he referred to the individual several times as a fellow named Harris and once as Harold.Q. Were there any other conversations?A. Yes, sir, there were. David Roberts made the statement that, “I have not murdered anyone and I would be willing to take a polygraph on that particular subject matter.” I advised him that it was unlikely that I could arrange a polygraph that particular evening and that if he was interested we could accommodate him on a polygraph.Q. In the twenty-two months since that time has he or his attorney ever asked for a polygraph?A. No, sir.Q. Did you take certain mileage measurements?A. Yes I did. The mileage from the Loraine residence to the Harold service station was 25 miles, from the Harold service station to the Harold house on Pine Drive was 1.1 miles, and from the Harold house to the Waffle House was .4 miles. Q. Did you subsequently contact the Loraines and employees at the Fall Creek Y.M.C. A. to attempt to verify the statements of Roberts as to his whereabouts on the 19th and 20th of January, 1974.A. Yes, sir, I did.

CROSS EXAMINATION BY MR. JONES:Q. Lieutenant, in your interviews with the 41 residents on or near Pine Drive did anyone say that they had seen the defendant, David James Roberts at any time on January 19th or 20th, 1974?A. No, sir. Q. Now Lieutenant, as the chief investigating officer, how many gold or tan 1970 Buick Riviera automobiles did you find that are registered in Indiana?A. I have no idea.Q. Well then, how many in Marion County and Indianapolis?A. We did not check that.Q. Do you suppose that there are at least one hundred?A. Probably not that many.Q. OK, how about fifty?A. I told you. We did not check.Q. No. You did not check. Great police work Lieutenant. That’s all I have of this witness.RE-DIRECT EXAMINATION BY MR. GANTZ:Q. How many gold and tan 1970 Buick Riviera automobiles with the hubcaps and a fender skirt missing are registered in Marion County?A. I only know of one-Roberts’ There was no further direct or cross examination of this witness.

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All of the previous witnesses were white. The next six witnesses will testify concerning their knowledge of the whereabouts of David James Roberts on the 19th and 20th of January, 1974. They were all African-American.

The next witness was Florence Loraine. She testified that she lived on Taft Road in Indianapolis and that she had three children, Callie Loraine, LeRoy Loraine and Dewey Loraine. Her daughter Callie lived next door. She knew David James Roberts. Until about three or four days before January 19, 1974, he had been living at her daughter’s house. When asked if she saw Roberts on January 19, 1974, she replied, “Well, truthfully, I don’t-I’m pretty sure that I saw him that day-you know. I don’t remember what time I saw him that day or what he was doing.” When asked if she saw Roberts on January 20, 1974, and was he there for a meal, she replied, “Yes, I did. I could not tell you exactly what time, but I saw him. He was not there for a meal.”

The next witness, Dewey Loraine, stated that he had been to his mother’s house briefly in the afternoon of January 19, 1974, and had seen Roberts there. He did not remember the exact time but he thought it was about 2:30 p.m. He did not see Roberts at any other time on January 19th or 20th.

The prosecutor then called LeRoy Loraine to the stand. According to the testimony of Lt. Allen, Roberts had told him that Roberts was at Florence Loraine’s house watching television and having a few drinks with LeRoy Loraine from after dinner on the 19th until about 1:30 a.m. on the 20th, except for a brief trip to the liquor store at approximately 10 p.m. LeRoy Loraine testified that he knew David James Roberts and that Roberts had been the boyfriend of his sister, Callie. He identified Roberts in the courtroom. LeRoy lived at his mother’s house in January of 1974 and his fiancée was Veronica, his present wife. He saw Roberts working on his car in the back yard sometime in the morning of January 19, 1974. He also saw Roberts at his mother’s house watching the U.C.L.A.-Notre Dame basketball game in the living room at about 2-3 p.m. He remembered having take-out Chinese dinner between 6-7 p.m. with Roberts, Florence, Callie and Veronica. After dinner he went into the den with Veronica and did not see Roberts again that evening. He thinks that Roberts left the house by the 10 o’clock news. LeRoy went to bed at about midnight and Roberts was not at the house. He stated that he had not been watching television and drinking with Roberts that evening. He had been with Veronica. He saw Roberts sometime on the 20th but could not remember when.

Upon cross examination LeRoy stated that he was not absolutely certain of the dates. He testified, “I am pretty sure. It has been twenty-two months ago, you know, but I do remember the basketball game and the Chinese takeout”

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Veronica Loraine then testified.

She stated that she was at the Florence Loraine house the afternoon and evening of January 19, 1974, with her fiancé LeRoy. The only times that she remembered seeing Roberts at the house was when he was watching the basketball game at about 2 p.m. and when they all had Chinese food together at dinner. After dinner she and LeRoy were in the den and did not see Roberts after that. She and LeRoy came out of the den at about 11:30 p.m. to 12:30 a.m. and Roberts was not in the house.

The next witness was Callie Loraine Myers.

She testified that on January 19, 1974, she lived next door to her mother, Florence. She knew David James Roberts and identified him in the courtroom. She stated that Roberts was her boy friend and he had lived with her for about five months. He had moved to the Y.M.C.A. several days before the murders. The prosecutor asked her if she knew that Roberts had been married and had a small child. Callie appeared to be stunned. She whispered, “No”. The prosecutor asked her to speak up so that the jury could hear. She said in a firm voice, “I don’t believe it.” Roberts had not told Callie that he had been married and had a one year old daughter. Callie further testified that on January 19, 1974, she saw Roberts from noon until 3:15 when she noticed that his car was gone. She had watched the ballgame with him. She saw Roberts again between 5:30 and 6 p.m. at her mother’s house and they ate Chinese later at about 6:30 p.m. with the family. She left her house to go out with a girl friend at 8:30 p.m. and that was the last time she saw Roberts that day or night. She returned to her house about 3 a.m. She saw Roberts at about 10 a.m. on the 20th. On cross examination, she stated that Roberts had told her about the theft charge and “David was cool about it. He knew nothing was going to happen. He had passed a lie detector test and his attorney had told him that the case was going to be dismissed. He was not upset about the case at all.” She further stated that when she saw Roberts at about 10 a.m. on Sunday the 20th, “he acted normally and was not excited or upset. He was relatively calm. He was just like he was on all days.”

The final witness of the day was Juanita Richard, the Fall Creek Y.M.C.A. desk clerk.

She testified that she had worked at the Fall Creek Y.M.C.A. for ten years and that she was the desk clerk. The desk clerk’s duties were to “open the door and register anyone in if they come, and answer the telephone.” Her hours were twelve at night until eight in the morning. Pursuant to the rules she always locked the only entrance door at twelve o’clock midnight and unlocked it between 5:30 and 6 a.m. The door was not locked during any other time of the day. She stated that she was employed and working her regular shift on January 19 and 20, 1974. She did not remember a David Roberts living there at the Y.M.C.A. Within a week after the murders

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she was shown a photograph of David James Roberts by a police officer and asked if she recognized that person. She said that she did not. She also was asked, “The picture that was shown to you, do you remember at that time whether you had left this person in between the hours of midnight and 6 a.m. on those dates?” Her answer was, “I don’t think so.” Upon cross examination she stated that she was not positive that she had locked the door that night but she usually did because she was supposed to. It had been a long time age so she was not positive she worked those dates but she thought so.

She had stated that it was her duty to register anyone whom she let in. I wondered why the registry book was not offered into evidence.

At the conclusion of this testimony I adjourned court for the day. I again allowed the jurors to separate and admonished them as I had at the conclusion of the first day. I thanked the jurors and told them to return the next day, November 14, at 9 a.m. Today the jurors heard evidence that Roberts had been arrested on a Sears misdemeanor theft charge which was still pending when William Harold was murdered, that the sole witness who could identify Roberts as the tires purchaser was William Harold, that Roberts had been arrested on the Harold murder charges, that after his arrest he gave a voluntary statement to the police as to his whereabouts on January 19 and 20, 1974, and that important parts of his statement were not verified and in some cases contradicted. The next day’s evidence would be crucial to the prosecution. The prosecution would attempt to prove that in the late afternoon of January 19, 1974, Roberts had purchased the red five gallon gas can found in the Harold house. The prosecution had failed to do this at the bail hearing.

18

The Trial-The State’s Evidence Day 5

November 14, 1975

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On November 14, 1975, at 9 a.m. the next morning the trial continued. Charles Gantz informed me and Tom Jones that the state’s evidence would conclude that day. That would work out well as it was Friday and the court would be in recess over the weekend. The jury could rest up a little. On Monday, the defense could present evidence. The next three witnesses were African-American. The first witness called to the stand was Elwin Renkite. He stated that in January 1974, he was the owner of Renkite Shell Station at the corner of 16th Street and Meridian in Indianapolis. It was in an African-American neighborhood. At that time William Hardy and Richard Roman were his employees.

He further testified that he knew David James Roberts. He had been a good customer for over a year. Upon direct examination the following testimony was given.Q. Do you think you could indentify him here in the courtroom?A. I’m not real sure that I would-possibly.Q. Well, is that person in the courtroom?A. I wouldn’t say yes. I would say possibly.Q. You’d say possibly?A. Possibly.Q. And who might the person be who possibly could be David Roberts?A. This man sitting here.Q. Which man, sir?A. The colored fellow right here-there. (The witness pointed to the defendant) There was no further testimony from this witness. William Hardy was next called as a witness for the prosecution.

He was about five feet two inches tall and very thin. He was the most nervous witness I had ever seen. His legs shook during his entire testimony. I had to ask him several times to speak louder. William Hardy testified that he worked at the Renkite Shell Station at the corner of 16th and Meridian Streets in Indianapolis. That at between 5:30 and 6 p.m. on January 19, 1974, a black male in his late 20s, driving a 1970 tan and gold Buick Riviera, came to the Shell station. He stated that he washed the windshield of the car. The customer then purchased from Richard Roman, a fellow employee, some gas for the car. Also the customer obtained from Renkite Shell a five gallon red gas can with “$5 DEPOSIT ON THIS CAN” marked in yellow crayon on the side. At the customer’s request, the can was filled with ethyl gasoline by Richard Roman. He

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stated that previously he, William Hardy, personally had written in yellow crayon “$5 DEPOSIT ON THIS CAN” and his name on the gas can. He was shown the five gallon gas can found at the Harold house which had been previously admitted into evidence and identified it as the one loaned to the black customer. He stated that he could see his own handwriting on the can. He said that the gas can had never been returned to Renkite Shell. He stated that he knew David James Roberts and that he had been a regular customer of Renkite Shell. He further testified that he recognized the defendant in the courtroom as David James Roberts but that he was thinner now, did not now have a mustache as he had before, and his afro haircut was longer then. He stated that the vehicle being driven by the person who had purchased the gas for his car and obtained the gas can was exactly like the car that Roberts had always driven in the past. He also stated that the man in the car was David James Roberts. Cross examination and re-direct examination followed.CROSS EXAMINATION BY MR. JONES:Q. Mr. Hardy, is the Renkite station in a predominately black area?A. Yes sir, right, yes, sir, about 9/8 of our customers is black.Q. Now Mr. Hardy, do you remember being down in Johnson County and testifying in court at a bail hearing over a year ago?A. Yeah.Q. Now do you remember me asking you at that hearing if you would point out the man that borrowed that gas can from you on January 19, 1974? Do you remember that question?A. Uh Huh.Q. Do you remember that you were sworn by the judge to tell the truth?A. Yes.Q. And did you swear to tell the truth?A. Yes. Q. And do you remember tellin’ the judge and me and everybody else in the world that the man who borrowed the gas can was not in the courtroom that day?A. Yes, sir, I did.Q. And isn’t that the man that was in the courtroom that day? (pointing to the defendant David James Roberts)A. Yes, sir.Q. You know David James Roberts don’t you?A. I think I do.Q. Is this the man that borrowed the gas can from you, or do you know?A. I’m just gonna tell ya, I just don’t know. I did not get a good look at him.RE-DIRECT EXAMINATION BY MR. GANTZ:Q. You testified that you had dealt with David James Roberts several times at the Renkite station. A. Oh, yes, I have.

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Q. Now, I want you to get down from the stand for a moment. I want you to get a good look and I want you to tell me-is this the man who got the red gas can from you recognizing the differences? (William Hardy left the witness box and stood right in front of the defendant) Is this David James Roberts right here? (the prosecutor points directly at Roberts)A. It is.Q. And that is the man that bought the can, is that correct, or got the can from the station?A. Right, yes, correct.FURTHER CROSS EXAMINATION BY MR. JONES:Q. Well, now, didn’t you just tell me this isn’t the man?A. I don’t know-I’m all mixed up, man.Q. Now, Mr. Hardy, David Roberts is on trial for first degree murder and it’s becoming very evident that whoever purchased this gas can has a problem, and I want you to know, or want to ask you, sir, is this the man-can you say beyond a reasonable doubt that this is the man who purchased or got that gas can from you on January 19, 1974?A. I just-I tell ya I just don’t know.

There were no further questions by Mr. Gantz or Mr. Jones. The witness was excused. He hastily left the courtroom.

The next witness for the state was Richard Roman.

He stated that he was an employee of Renkite Shell on January 19, 1974, and his duties were to pump gas and run the wrecker. He testified as follows:Q. Have you ever done business with David James Roberts?A. Yes.Q. Could you look around the courtroom and see if you could find this person that you know as David James Roberts?A. I see-this fella looks like David Roberts-right here in the blue coat. (The witness points at the defendant)Q. Now, sir, on January 19, 1974, did you have occasion to wait on David James Roberts?A. Yes, sir, I did. I sold Mr. Roberts some gas for his car and in a can.Q. What kind of an automobile was it he was driving?A. It was a 1970 gold Buick Riviera.Q. Did he have his own gas can?A. No. We had a five gallon gas can that we had taken in and I let him have this can.Q. Was there a deposit on this can?A. Yes, sir. There was a $5.00 deposit on the can. He gave me his check for $5.00 as deposit and paid for all of the gas in cash.Q. Was the check written on the 19th of January, 1974?A. Yeah.Q. Now sir, did you put gas in the gas can?

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A. Yes. I filled it up. Q. Did the gas can have a pour spout?A. No. I got one off a two gallon can and put it on the five gallon can.Q. And what did you do with the five gallon gas can?A. I put it right down next to his car. Then I left to go and ring up the sale and that’s the last time I seen the can.Q. Do you know if that can ever returned to the station?A. No, it didn’t.Q. I’ll show you what has been marked as State’s Exhibit #91 (the gas can found at the Harold house) and ask if you could recognize this can, sir?A. Yes, I recognize the can as the one I gave to Mr. Roberts. Q. You can recognize the can?A. It’s definitely the can.Q. How do you know, sir?A. It says “$5.00”-there is part of the “D”-deposit. It says “O-N (on) this”. This is Bill Hardy’s writin’.Q. And this is the same can that you put next to Mr. Roberts’ car?A. Yes.Q. Okay. Now, sir, you have testified at a previous bail hearing in Johnson County in which you failed to identify David James Roberts, is that correct?A. Yes, sir.Q. And does Mr. Roberts look different today than he did at that time?A. Yes indeed. When I sold the gas to him he had a mustache, his haircut was a little fuller than what it is now, and he is slimmer now.Q. Are you absolutely certain that this is David James Roberts (pointing to the defendant), the man that you sold the gas to, the man that got the can, the man that wrote you the check for $5.00 on January 19, 1974?A. Yes, sir.CROSS EXAMINATION BY MR. JONES:Q. Now, let’s get back to the bail hearing, Mr. Roman. At that time you told the court that it was not David Roberts that bought or borrowed a gas can from you-did you not say that?A. Right.Q. Your memory was fresh then, wasn’t it.A. I guess so.Q. Were you sworn to tell the truth at the bail hearing?A. Yes.Q. Did you lie before God then or just now?A. I have just told the truth. It was Roberts who got the can. I am not proud of my testimony at the bail hearing but I was scared to death. He had just murdered a witness against him.

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Tom Jones jumped to his feet. “Objection, Your Honor. His answer was unresponsive and very prejudicial. I move the court to strike the last statement and admonish the jury not to consider it.” THE COURT: Objection sustained. The jury will not consider as evidence the last statement of the witness.

I could have admonished the jury by saying, “The jury will disregard and not consider the witness’s last statement that Roberts had just murdered a witness against him.” I cautiously did not do so. Some pro-prosecution judges would have.

Q. Now, Mr. Roman, could you be incorrect on the date of January 19th about the business about the gas can?A. Could not be any other date. There was no further direct or cross examination of Mr. Roman.

The State then called Edward Sheets as the next witness.

He testified that he was the Operations Manager at Midwest National Bank in Indianapolis. His position included having custody of bank records. He stated that David James Roberts had an account with his bank. At the request of the prosecutor he had brought accurate copies of all checks cleared by his bank written by David James Roberts for January and February 1974. He was asked if he had an exact copy of check number 205. He answered yes and produced the check.

The check was numbered 205 and was drawn on the Midwest National Bank of Indianapolis. It was dated January 19, 1974 and in the amount of Five Dollars. It was payable to the order of Renkite Shell. The check had DAVID J. ROBERTS printed on the top and was signed David J. Roberts. The check was offered and admitted into evidence.

The next witness for the prosecution was Douglas Buck. He stated that he was a Captain in the Indiana State Police and in charge of the Questioned Documents Section. He had over seventeen years experience examining and comparing handwriting. He stated that he had examined check number 205 allegedly written by David James Roberts to Renkite Shell for $5.00 on January 19, 1974, and compared it with known exemplars of the writing of David James Roberts. Before he was asked to give his opinion, Mr. Jones on behalf of the defendant stipulated that the check was written by David James Roberts. The witness was thanked and excused.

Charles Gantz then called Laurence Phillips as the state’s next witness.

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Laurence Phillips stated that he was a detective sergeant with the Indiana State Police and that he was a crime scene reconstruction specialist. He testified as to his training and experience. He continued with his testimony as follows:Q. Mr. Philllips, have you examined the exhibits introduced at this trial and read the investigation report prepared by Lieutenant Robert Allen, the chief investigating officer?A. Yes, I have.Q. And assuming that the materials and information that you have received are accurate, do you have an opinion as to what happened at the Harold residence in the morning of Sunday, January 20, 1974?A. Yes, I do.Q. And what is that opinion?A. It is my opinion that William and Elizabeth Harold left their house at approximately 8:30 on Saturday, January 19, 1974, with their friends and returned at approximately 3 a.m. on January 20, 1974. William Harold went into the house. Elizabeth Harold left in the family car to pick up their daughter, Jenny, who was with a baby sitter. The murderer had probably been watching the house for some time and had sometime before midnight unscrewed the front porch light bulb to prevent being seen when he entered and left the house. After William Harold had gone into the house, the murderer then entered the house through the front door which was unlocked in anticipation of the return of Elizabeth Harold. The murderer was wearing leather gloves and may have hidden the gas can filled with gasoline outside the front door. William Harold then confronted the intruder and a struggle ensued in the living room and hallway. The intruder may have had a gun. William Harold was subdued and then strangled to death. His body was dragged into the den. Shortly thereafter, Elizabeth and Jenny returned to the house. The intruder hid until Jenny was placed in her crib. Then the intruder attacked Elizabeth and subdued her. Her wrists were bound with duct tape and her mouth was covered with duct tape. Her clothes had been removed. She was probably raped and then strangled to death with several men’s ties fastened together. Her body was dragged into the den. The murderer then retrieved the gas can and placed it in the living room near the front door. He then removed the gas can spout, removed his gloves, placed matches on the floor and poured gas from near the front door to the den and on top of the bodies. Clothes from the nearby closet were piled on top of the bodies. At approximately 4 a.m. the fire started. I have no opinion as to why the gas can was left in the den and the gas can spout, matches and gloves were left near the front door. Perhaps the murderer then lighted the gasoline near the front door, watched as the flames followed the gas trail to the den, and then fled believing that the can, spout, matches and gloves would be burned and untraceable. The two to three gallons of gas found remaining in the gas can indicates that perhaps when the murderer was pouring gas onto the bodies gas vapor had spread to the pilot light of the gas hot water heater and a small explosion and subsequent flash fire erupted forcing him to immediately flee leaving the possible evidence behind. The front door was found open. Q. Thank you detective Phillips. I have no further questions of this witness.CROSS EXAMINATION BY MR. JONES:

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Q. I just have a few questions detective. You were not there at the Harold house on that Saturday night or Sunday morning, were you?A. No.Q. You don’t mean to tell the jury that the intruder was the defendant, David James Roberts, do you?A. No.Q. In fact you have no idea who the intruder was, do you?A. I have no idea.Q. You don’t know really what happened, do you? It is just your guess.A. It is my expert opinion based upon the evidence presented to me. Q. Did Lieutenant Allen tell you about a black man named Douglas Milford driving slowly by the Harold house early that morning?A. He may have mentioned that.Q. Could Douglas Milford have been the person who murdered the Harolds?A. I don’t know. He could have been. Anybody could have been. As I said before, I do not know who was in the house.Q. Just so the jury is not confused-you are not saying that David James Roberts murdered anyone, are you?A. No I am not. There was no additional direct or cross examination of this witness. Mr. Gantz then stated that the prosecution had no further witnesses and the State rested its case. At the conclusion of this testimony I adjourned the court for the day. I again allowed the jurors to separate and admonished them as I had at the conclusion of the first day. I thanked the jurors and told them to return Monday, November 17, at 9 a.m. at which time the defendant would have the opportunity to present evidence in his defense. At the conclusion of the state’s case, the defendant filed a motion for a directed finding of not guilty based upon the theory that I as the judge, and as the “thirteenth juror”, had the right to and should enter such a not guilty finding as there was not sufficient evidence to allow a conviction. I denied the motion.

19

The Trial-The Defense Evidence Day 6

November 17, 1975

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At 9 a.m. on Monday, November 17, 1975, the cast again assembled to hear the defense evidence. The jurors had been very attentive throughout the trial and were eagerly awaiting the evidence of the defense. They were expecting the defendant to testify.

Tom Jones called Harold Chavis as the defense first witness.

He testified that he was Roberts’ attorney in the misdemeanor tire theft case. At his suggestion Roberts had taken a polygraph test concerning the alleged theft and had passed. The examiner concluded that Roberts was telling the truth when he stated that he did not commit the theft. The polygraph test was admitted into evidence. In the polygraph test the examiner concluded that Roberts was truthful in stating that he had never purchased any tires from Sears. Mr. Chavis further testified that even though the positive results of a polygraph test are not admissible in a criminal trial in Indiana to prove innocence, it had been his experience that in misdemeanor cases a positive result would lead to a dismissal of the charges. He was anticipating that the charges against Roberts would be dismissed. He told this to Roberts. However, the prosecutor was dragging his feet and had not yet agreed to a dismissal.

Mr. Chavis had then taken William Harold’s deposition. Roberts was aware that the deposition had been taken and that the matter was still set for trial. He told Roberts that if the matter went to trial that it would be his word against Harold’s and that he would argue that, “It doesn’t make sense if a man’s gonna steal some tires to let ‘em get all of the information about the tire serial numbers and then steal the tires.” He told Roberts, “But you know judges and juries do funny things so we better have you take a polygraph.” Mr. Chavis concluded his testimony as follows.Q. Mr. Chavis, you stated that Mr. Roberts was aware of the trial date?A. Correct.Q. Had the case been set for trial before?A. Yes. It had been set for trial two times before and then was continued.Q. Nothing had happened to the prosecuting witness William Harold before these other prior settings? No witnesses were murdered before those trial dates, were they?A. No.Q. Have you had anything to do with the homicide case we are trying today.A. Well, no. I think David called me at home. He had been arrested, upset, and he said something that he didn’t understand what it was all about. There was no further examination of this witness.

The defense did not offer any further evidence that Roberts was at the Y.M.C.A. at the time of the murders as set forth in his previous Alibi Notice. When he was arrested, Roberts had told the police that he was at the Y.M.C.A. and this was already in evidence.

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The jurors anxiously awaited the next defense witness. They thought that it would probably be Roberts. During the course of the trial, there had been many discussions between Tom Jones and Roberts as to whether Roberts should testify. Jones had explained that if Roberts testified, he would be under oath and must tell the truth. Also, Roberts had a prior conviction of a crime (robbery) that would be brought out upon cross examination by the prosecutor. Any conviction of theft or robbery are relevant and admissable as to Roberts’ truth and veracity. Once the evidence of the prior crime was introduced and allowed on cross examination of the defendant, evidence of Roberts’ parole on this prior crime could be introduced by the prosecution. The possibility of a parole violation due to the tires theft could lead to additional time in prison. This would be an additional motive to murder Harold. Jones told Roberts that the jury would expect him to testify and explain why he was innocent of the theft and murders. The benefit of testifying would have to be weighed against the danger that the previous conviction and avoidance of additional imprisonment motive might influence the jury that he was guilty. Also, if he testified, the jury would expect Roberts to explain where he was on the evening and morning of the murders and why they should not believe that he borrowed the red gas can. It is not known if Mr. Jones made any recommendation to Roberts as to whether he should testify. The ultimate decision was Roberts’. I asked Mr. Jones to present his next witness. Mr. Jones then stated that the defense had no further witnesses or evidence. Roberts would not testify. The jurors were startled. They wondered why he did not want to testify. Most jurors think an innocent person would want to testify. There was no rebuttal evidence by the state. I admonished the jury and asked them to return November 18 for final instructions, closing statements of counsel, and deliberation.

20

The trial-Closing Statements and Final Instructions

November 18, 1975

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On November 18, 1975, the attorneys for the parties gave closing arguments to the jury. The prosecutor, Charles Gantz, addressed the jury first. He stood in front of the jurors and as he talked he looked directly at them and tried to make eye contact with each one. He meticulously described the events leading up to the murders which collectively could lead to only one conclusion by the jury that, beyond a reasonable doubt, David James Roberts murdered William and Elizabeth Ann Harold and caused the death of their infant daughter Jenny Harold. He reviewed the theft charges against Roberts and the fact that Roberts might be sentenced to one year in prison and fined $5,000.00 if convicted of the theft charge. He stressed that William Harold had given his deposition one week before he was murdered identifying Roberts as the person who ordered the tires and that he was the sole witness against Roberts in the theft charge. He stated, “It may be difficult for most people to imagine that anyone would murder to avoid a theft conviction. But Roberts is not a normal person. He does not think and act as you would. Look at the person who viciously strangled and burned William and Elizabeth Harold and you will see a person capable of anything. He had no regard for the infant Jenny. You heard the testimony of the crime scene specialist, Laurence Phillips. He told you what Roberts probably did inside the Harolds’ house that terrible morning. Remember that Elizabeth was found naked. You can decide for yourselves what you think happened during that horrible hour before the murders.”OBJECTION BY MR. JONES: I object to the last statements of Mr. Gantz. There was no evidence as to any rape and such a statement was only made to improperly inflame the jurors. The only witness that said anything about rape was the so called “crime scene specialist” detective Phillips and he was not there.THE COURT: Overruled. You may proceed Mr. Gantz.

I overruled the objection because whether Elizabeth Harold had been raped was relevant on the issue of malice and premeditation necessary for first degree murder. The jury could infer from the evidence that Elizabeth had in fact been raped. Objections by counsel during closing statements are rare. They are often made to interrupt opposing counsel and divert the jurors’ attention. A standard final instruction was given by me to the jury that the closing statements by counsel are not evidence but rather counsel’s interpretation of the evidence.

Mr. Gantz continued, “The evidence clearly showed that on the afternoon before the Harold murders a black male about thirty years old driving a 1970 gold Buick Riviera automobile owned and registered to Roberts had asked at the Harold service station for directions to Pine Drive, the street on which the Harolds lived. Even though the witnesses at the Harold station did not get a good look at the driver and therefore could not identify the driver as Roberts, why would any black man in a white neighborhood driving Roberts’ car, other than Roberts, have wanted directions to Pine Drive late in the afternoon before the murders? There was no evidence that any deliveries were expected by the Harolds.”

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Mr. Gantz took a brief look at his notes and continued, “The the red five gallon gas can found at the Harold house was obtained at the Renkite Shell Station in Indianapolis the afternoon before the murders by the defendant, David James Roberts. This evidence alone should convince you beyond a reasonable doubt that David James Roberts murdered the Harolds and set fire to them and their house. Richard Roman, the attendant at the Renkite Shell Station who knew Roberts as a long time customer, positively identified the defendant as the person who, late in the afternoon of January 19, 1974, drove into the station, obtained gas for his car, borrowed the red five gallon gas can, had the gas can filled with gas, paid cash for the gas, and gave his personal check for $5.00 dated January 19, 1974, as a deposit on the gas can. Roberts then drove away with the gas can. This was an African-American identifying another African-American.”

“The writing on the red gas can was placed there previously in yellow crayon by William Hardy. Both William Hardy and Richard Roman stated that the car being driven by Roberts was a gold 1970 Buick Riviera which he had been driving for a long time” continued Mr. Gantz. “Mr. Renkite and the two employees testified that the gas can never was returned to the Shell station.”

Mr. Gantz stated, “It is understandable that William Hardy and Richard Roman did not identify Roberts at the bail hearing in Johnson County as the person obtaining the gas can. The survival rate of witnesses against Roberts before trial was extremely low. It took great courage for Richard Roman to now positively identify David James Roberts.”

The prosecutor then said, “Remember that when questioned after his arrest, Roberts stated to Lt. Allen that he was the only one who ever drove his 1970 gold Buick Riviera.”

There was a pause and Mr. Gantz looked at his notes again. He then said, “Roberts also stated to Lt. Allen that on the 19th and 20th of January, 1974, the night and morning of the murders, he was at the Loraine residence in Indianapolis and was watching television and having a few drinks with his girl friend’s brother, LeRoy Loraine until 1:30 a.m. Roberts stated that he then left the Loraine residence and went to the Fall Creek Y.M.C.A. where he was then living. LeRoy Loraine stated that he had not seen Roberts after 7 p.m. and had definitely not been watching television with him that evening and early morning. Nobody at the Loraine residence had seen Roberts after 10 p.m. The Y.M.C.A. desk clerk testified that the only entrance door to the Y.M.C.A. had been locked by her from midnight until about 6 a.m. on January 20, 1974, and that she had let no one in during this period. Roberts had obviously lied to Lt. Allen as to his whereabouts the evening of the 19th and morning of the 20th. I’ll tell you where he was. He was at the Harold house setting it on fire and maliciously murdering William, Elizabeth Ann and Jenny Harold.” Mr. Gantz walked to his table and took a small sip of water. He returned to face the jury and continued, “Roberts had motive, means and opportunity. There was understandably no witness to

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the murders and therefore technically no direct evidence. However, the circumstantial evidence is overwhelming and under Indiana law, a person can be convicted on solely circumstantial evidence as the judge will instruct you in his final instructions. I implore you, as the conscience of the community, to give closure to the Harold family and to render justice by reaching the only possible verdict-guilty on all counts. Thank you very much for your attention. Please do your duty.” The prosecutor returned to his table slowly. I turned to Tom Jones and said, “Mr. Jones, you may proceed.”

Defense counsel, Tom Jones, then gave his closing argument. He also stood before the jury. He had a difficult challenge. He stated to the jury that it was hard to refute a suspicion of guilt raised by some of the testimony but suspicion was not sufficient to convict. Each juror must be convinced beyond a reasonable doubt of guilt. No one saw Roberts at or near the Harold house. Were the identifications of Roberts and the car matters of honest but mistaken identity? Mistaken identity has been shown and documented in case after case. It is the leading cause of criminal convictions being set aside. No witness identified Roberts as the person who had asked for directions to Pine Drive at the Harold service station. One witness at the Renkite Shell Station, William Hardy, had even cleaned the car’s windshield. He knew Roberts well but could not identify Roberts at the bail hearing or at this trial as the person who had purchased the gas can found at the Harold house. Another witness at the Renkite Shell Station, Richard Roman, claimed to have loaned on deposit the five gallon gas can to Roberts. However, both William Hardy and Richard Roman when testifying under oath at the bail hearing in Johnson County shortly after the murders had failed to identify Roberts as the person who had purchased the gas can. Their memories of the events at the Renkite station were fresh then and they were under oath.

Defense counsel also asked the jury to consider whether William Harold mistakenly or perhaps purposely identified Roberts in the tires theft case? Why would a well educated and intelligent person such as Roberts commit such horrible crimes just to eliminate a possible misdemeanor conviction, especially since Roberts had passed a lie detector test and expected to be found not guilty?

Mr. Jones stated to the jury, “The police had completely failed to investigate other persons who might have committed the murders. They had their man. Why didn’t the police find out who had burglarized the Harold house and stolen clothes the week before? Why didn’t they tell the jury why Douglas Milford was not a suspect? He was seen driving a car similar to Roberts’ car in front of the Harold house early on the morning of the murders. He must have been connected to the murders and possibly committed them.”

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Tom Jones continued, “Roberts stated that he was at the Y.M.C.A. when the murders occurred. The Y.M.C.A. clerk was asked by the prosecutor if she let Roberts in the door that night or morning and she stated, ‘I don’t think so.’ She appeared not to be certain and was hesitant when answering. She was not even sure of the date. She stated that she registered everyone who entered. Why didn’t the prosecution obtain the registry and show it to the jury?”

Defense counsel explained that it was not the obligation of the defense to show that someone else might have committed the crimes. It was the obligation of the prosecutor to show beyond a reasonable doubt that it was Roberts and not someone else. He emphasized that the defendant was presumed innocent and that this presumption continued throughout the entire trial unless and until the state proved to each juror beyond a reasonable doubt each and every material allegation of the charges.

Defense counsel further stated that the filing of Indictments against defendant, as Judge Berger will instruct you, was not to be considered as any evidence of guilt as the Indictments were merely a technical way under Indiana law to commence a criminal prosecution. He also explained to the jury, as the judge will also instruct you, that the failure of Roberts to testify on his own behalf cannot be construed by the jury in any way as an admission of guilt. He stated that the jury might understandably ask why if he was innocent he did not testify. He explained that there are many reasons why a defendant may choose not to testify: the defendant may be very nervous when testifying and his demeanor might imply that he was lying when in fact he was not; and the defendant may have been convicted of a prior unrelated crime which would be brought out by the prosecutor on cross examination, which prior crime may incorrectly influence a juror that the defendant was guilty. Mr. Jones told the jurors to remember that even though David James Roberts had not testified, he had entered a plea of not guilty to all charges. This plea is equivalent to a statement by him that he did not commit the murders-that he did not borrow the gas can.

Mr. Jones stated to the jurors, “Your decision as to the guilt or innocence of David James Roberts is probably among the most difficult and important decisions that you will ever have to make. Do not forget the possible consequences of a guilty verdict. If you find Roberts guilty of murder in the first degree, then there will be a second phase to the trial. You will then hear further evidence about a prior crime and if you believe such further evidence has been proven, under Indiana law you will have to sentence David James Roberts to death. The prosecutor might prove such further evidence at phase two of the trial and therefore if you return a guilty verdict now of murder in the first degree you are actually sentencing Roberts to death.” Mr. Jones then explained that the judge would instruct them concerning the doctrine of lesser includable offenses. This doctrine states that if the jury is not convinced beyond a reasonable doubt that the defendant is guilty of first degree murder, then they may consider whether the

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defendant is guilty of murder in the second degree which calls for a life sentence rather than death, or a sentence for a term of years; or is guilty of voluntary manslaughter which calls for a sentence for a term of years; or is guilty of involuntary manslaughter which calls for a sentence for a term of years.

Mr. Jones also explained that Judge Berger will instruct them concerning the jury’s right to determine the law and that they could disregard the law for a substantial reason. Mr. Jones stated, “Therefore if any juror has a substantial reason to believe that a certain law should not apply to this case, he or she may disregard the strict application of that law and render a decision that he or she believes is a fair and honest application of that law.”

Mr. Jones declared to the jury, “You have heard five days of prosecution evidence. The only evidence that you have heard which connects David James Roberts to the crimes is the testimony of Richard Roman concerning the gas can loan. By his plea of not guilty, Roberts has denied that he borrowed any gas can. All the other evidence is ‘maybe’ or ‘possibly’ or ‘I’m not sure’ or ‘could have been.’ This is not the type of evidence which would allow a finding of guilt beyond a reasonable doubt. That leaves the jury with only the testimony of Roman. Remember, he testified under oath and before God at the bail hearing a few weeks after the crimes were committed that David James Roberts was definitely not the purchaser of the gas can. His memory was fresh then. Now over a year later he suddenly changes his mind. If you are not convinced beyond a reasonable doubt that Richard Roman has spoken the truth at this trial, then you must acquit David James Roberts. It all comes down to that. Ladies and gentlemen, I beg you not to find David James Roberts guilty of these crimes. A guilty decision would most likely result in a mandatory sentence of death.”

Defense counsel ended by imploring the jurors not to be influenced by the type of crime committed or by sympathy for the Harold family. He stated that such feelings would be understandable but that the jurors had sworn to judge the facts without passion or prejudice, to faithfully apply the law as determined by them, and to render a fair and just verdict, not only to the State but also to David James Roberts. Mr. Jones reminded the jury that Roberts was presumed innocent; that he had no burden to prove his innocence; and that the entire burden was upon the state to prove guilt. Further, he stated in conclusion that the state had failed to sustain such burden and that justice compelled the jury to find his client, David James Roberts, not guilty of all charged offenses.

At the conclusion of closing arguments, I read to the jury the court’s Final Instructions which included most of the Preliminary Instructions with additional instructions concerning circumstantial evidence, the failure of defendant to testify, motive, lesser includable offenses, the duty of jurors to judge the law and the facts, and the filing of Indictments. I further advised the jury that their sole function in this phase one of the trial was to determine guilt or innocence on all of the charges. I also advised that a finding of guilty on either Count I or

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III would result in a mandatory sentence of life imprisonment but that a finding of guilty on either Count II, III or VI would result in a mandatory sentence of life imprisonment and, under certain circumstances, death. The sentence on these counts would be decided by the jury at phase two of the trial to be held later if necessary. I further advised that a finding of guilty on Count VI would result in a mandatory sentence for an indeterminate term of five to twenty years.

Throughout the entire trial Roberts was always dressed in a dark suit and tie. He was always calm and attentive. He took notes and often conferred with Tom Jones.

After I gave the Final Instructions to the jury, the jury retired to the jury room to deliberate the fate of David James Roberts. A copy of the Final Instructions was given to the jury to consider during deliberations. It was 3 p.m. on November 18, 1975.

On the morning of November 18 while I was in my chambers preparing the final instructions, a member of the Indiana State Police spoke with me. The officer stated that the Indiana State Police had heard from the Illinois State Police that a confidential informant in Chicago had heard a friend of Roberts, who had been a cell mate of Roberts, discussing plans with others to help Roberts escape if the jury should find him guilty of murder. The plans included possibly taking me or my wife and children as hostages to be exchanged for the release of Roberts. The conspirators allegedly had made plans for Roberts to fly to Algeria which had no extradition treaty with the United States. Roberts’ brothers and friends were in Steuben County. Security at the courthouse was increased. I was advised to stay at the courthouse. In response to the threat, I had my wife and two small children stay at the house of a friend. They stayed there until Roberts returned to Indianapolis the next day.

21

The Trial-Duty of Jury

November 18, 1975

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There are two Indiana legal principles which give the jury great leeway in determining a proper verdict, “jury nullification” and “lesser included offenses.”

JURY NULLIFICATION I gave the following final instruction concerning the duty of a juror.

“DUTY OF JURY

In criminal cases the Constitution of Indiana gives the jury the right to determine the law as well as the facts. At the same time, it is my duty to instruct you concerning the law. This means that you should pay respectful attention to the law contained in my instructions, should give the law a fair and honest interpretation and should not ignore or disregard the law without a substantial reason. However, in reaching your final decision, you have the right to determine the law and the facts by which your verdict will be governed.” This instruction gave the jurors the right to determine the law and disregard it if they had a substantial reason. They could return any verdict they thought proper, even a not guilty verdict. What was a “substantial reason” had not been determined by the courts or legislature.

Jury nullification is defined as “A jury’s refusal to apply the law because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” The Indiana Constitution in Article I, Sec. 19 states, “In all criminal cases, whatever, the jury shall have the right to determine the law and the facts.” Does this provision to “determine the law” grant to Indiana juries the right of jury nullification? The answer is possibly “yes” until about 1983 and “no” thereafter.

This right to determine the law was first set forth in the original 1816 Indiana Constitution and was meant to give to the people a safeguard against oppressive government laws. This Constitutional right was incorporated in the 1851 Indiana Constitution and has never been repealed. Only two other states, Oregon and Georgia, have similar constitutional provisions. Does this Constitutional right to determine the law mean that the jury can under certain circumstances refuse to apply the law-to nullify the law? Even without a Constitutional provision, a jury always has the power (as contrasted with the right) to disregard the law and return a verdict of not guilty. A not guilty verdict cannot be overturned by a judge or court, jurors do not have to give any reason for their verdict, and the defendant cannot be tried again as this would be double jeopardy.

The above instruction which was given to the jury was based upon an instruction which was at that time approved by the Indiana Supreme Court. Today this instruction would not be approved. Later Indiana cases commencing in 1983 seem to state, without precedent, that a jury in determining the law can never disregard the law, even for a substantial reason! The Indiana Supreme Court by judicial fiat has in effect improperly repealed Article I, Sec. 19 of the Indiana Constitution.

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LESSER INCLUDED OFFENSES

The doctrine of lesser included offenses can be described as follows. If a defendant is charged with “Killing another human being with premeditation and malice” as in the Roberts case the defendant is charged with First Degree Murder. By virtue of such a charge, under Indiana law, the defendant was automatically also charged with three other felonies. These are Second Degree Murder, Voluntary Manslaughter and Involuntary Manslaughter. Roberts could have been convicted of any one of these three lesser included offenses rather than First Degree Murder. I instructed the jury concerning this rule.

If the Roberts jury decided that Roberts did intentionally kill William and Elizabeth Harold with malice but did not plan in advance to kill them (no premeditation), then the jury could reach a verdict of Second Degree Murder and impose a life sentence or a definite sentence of from fifteen to twenty five years. If the jury thought that such killing was done without malice and premeditation and “in the heat of passion,” then the jury could reach a verdict of Voluntary Manslaughter which had a penalty of an indeterminate term of 2-14 years. If the jury found that there was no intent to kill but that the deaths were the result of reckless and wanton conduct, the jury could reach a verdict of Involuntary Manslaughter which had a penalty of an indeterminate term of 1-10 years.

Defense counsel was relying heavily on these principles to avoid a conviction of First Degree Murder and the imposition of the death penalty. If one or more jurors were not convinced beyond a reasonable doubt of Roberts’ guilt as to First Degree Murder or were hesitant to reach a verdict which would have required the death penalty, by using one or both of these principles, a compromise verdict could have been reached by finding Roberts guilty of Second Degree Murder or Manslaughter.

By using the above principles, juries can arrive at surprising verdicts from not guilty to a conviction of a lesser included offense. Most are “compromise verdicts.” I presided over many trials in which I believe that the jury verdicts were based upon compromise or in some cases a complete disregard of the facts.

The following are three trials over which I presided which illustrate these principles.

TRIAL 1: The defendant was charged with First Degree Murder: intentionally killing with malice and premeditation. Defendant was very jealous of his wife and thought that she was having an affair with a fellow factory worker. At 11:30 p.m. the defendant’s wife was returning home by car from work along a lane near their home. The defendant had been waiting for her and as she drove past him,

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he threw a large boulder at her car. She stopped the car and defendant ran up and opened her car door. He pulled her out of the car and slashed at her with a knife. She was able to spray him with pepper spray and ran down the lane away from the defendant. The defendant ran after her and repeatedly struck her with his knife in the back and finally in the throat which was fatal. He testified that he then lay on the ground, cradled her head on his lap, and began crying. He further testified that he was afraid for his life as he thought she had a gun in her purse, and only stabbed his wife in self defense. The jury reached a verdict of voluntary manslaughter. Some jurors thought that there was an intentional killing with malice and premeditation, and therefore murder. Some jurors thought that the killing was not planned, was done in the heat of passion, and therefore voluntary manslaughter. Some jurors thought that the killing was done in self defense. The final verdict appeared to be a compromise.

TRIAL 2: The defendant was charged with First Degree Murder: intentionally killing with malice and premeditation. The defendant and his wife often had heated arguments. During one such argument, defendant testified that his wife took a large kitchen knife and lashed out at him. As a result he received a small surface cut on his hand. He grabbed her and as they fell backward they broke a large ceramic jug. He picked up a jagged sharp piece of the broken jug and swung at his wife. According to his testimony, his wife stated that she was going to “kick him in the balls.” Upon hearing this he stated that he had no choice but to immediately defend himself and his manhood. He stated that he took the knife away and stabbed her to protect himself. The evidence disclosed that the defendant’s wife had over thirty wounds on her body. Some wounds were caused by the knife and some by sharp pieces of the ceramic jug. Eleven deep wounds on the front of her hands and arms were described by an expert witness as defense wounds, those caused by holding out your arms to defend yourself. The jury reached a verdict of battery and sentenced the defendant to six months in prison. Some jurors thought that there was an intentional killing with malice and premeditation, and therefore murder. Some jurors thought that the killing was not planned, was done in the heat of passion, and therefore voluntary manslaughter. Some jurors thought that the killing was done in self defense. The final verdict appeared to be a compromise.

TRIAL 3: The defendant was charged with Rape. The victims were two girls in their twenties who were on their way home to Boston from a vacation. They had been travelling in the western states and were hitchhiking along the Indiana Toll Road. They were on summer vacation from a Boston College. While stopping at a toll plaza, they accepted a ride with a truck driver who was heading east. An Indiana State Trooper was driving along the toll road and noticed a semi tractor trailer parked along the side of the road with the engine running. The trooper stopped to investigate and

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found the defendant and the two girls in the back sleeper portion of the tractor. One girl was huddled in the corner. The defendant was on top of the other girl engaged in intercourse. Both girls were crying. Both girls claimed that the defendant had beaten them and threatened them with further harm unless they allowed him to have intercourse with them. The defendant was arrested and charged with rape. Within two hours the girls appeared before me to testify concerning their ordeal. The purpose of the hearing was to determine if there was probable cause to issue a formal arrest warrant. I found probable cause and issued the warrant. When the girls appeared in court they were still wearing their original clothes which appeared to be torn. Also many bruises were apparent to me. The defendant appeared before me for preliminary hearing and bond was set. His trucking company posted bond. At the formal arraignment hearing, the defendant did not appear. I issued a warrant for his arrest. The defendant was picked up for a traffic violation in Texas two years later. He waived extradition and was returned to Steuben County for trial. At that time it was not a crime in Indiana to “jump bail.” The only penalty was to forfeit the bond which of course the trucking company had to pay. The girls both returned to testify. The defendant testified that the girls had been pestering him for about fifty miles to stop and have some fun. Finally, being a normal man, he said he could not resist any longer and at their urgent request, he had intercourse with both of them. The jury returned a verdict of not guilty! When asked why they returned a not guilty verdict, they stated that most of the jurors felt that any decent girl would not travel across the country hitch hiking and that if they did they “were just asking for it.”

The defendants in the above three cases were wise to have a jury decide their cases rather than have it tried by the court (by me).

22

The Trial-Jury Deliberations

November 18, 1975

At 3 p.m. the twelve members of the jury entered the jury room to begin their deliberations. The alternate juror sat alone in the courtroom, admonished not to talk to anyone during deliberations. The door to the jury room was locked by the bailiff. The jurors would not be allowed to leave the jury room except for meals. At any meal they would eat together and apart

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from any other diners. As admonished by me, they were not to discuss the trial during any meal. They were in charge of the bailiff at all times.

The jury room contained a long rectangular oak table with turned legs and twelve oak ladder back chairs. There was no other furniture. There was one picture hung on the wall. It was an old photograph of the first Steuben County jury that had women jurors. The year was 1936 and the photo showed eight women and four men, all with very serious expressions. The photograph also showed a young prosecuting attorney, Harris Hubbard, who was judge of the Circuit Court when I started law practice, and the judge at that time, the Hon. Clyde C. Carlin. There were two rest rooms. The bailiff had provided a large pitcher of ice water and paper cups. Paper and pencils were available.

Under Indiana criminal trial procedure at that time, the jurors were not allowed to take notes during the trial. The jurors also at that time were not permitted to take exhibits with them into the jury room during deliberations. During deliberations, the jurors were not permitted to have a copy of the final instructions that had been read to them by me. The reason for the rule against note taking as stated by the Indiana Supreme Court was to prevent the jury from being distracted by taking notes and perhaps missing some testimony. The rule against having exhibits and instructions during deliberations was to prevent the jurors from giving extra consideration to one exhibit or instruction perhaps to the exclusion of others. These rules completely ignored the intelligence of jurors and hindered their deliberations. I refused to follow the rule as to the exclusion of instructions from jury deliberations and sent a copy of the final instructions with the jury. Without the written instructions, how could jurors remember the eight essential elements of the murder charges against Roberts that they must find beyond a reasonable doubt to convict him? How should they reconcile contradictory evidence? What is a reasonable doubt? In the Roberts case, the prosecutor and defense counsel did not object to sending a copy of the final instructions with the jury during deliberations. Defense counsel certainly should not have objected. It was to the defendant’s advantage to have the jurors realize that there were eight essential elements which must be found to convict. Without the instructions as to the elements of each charge, the jury might remember only some of the essential elements and reach a wrong verdict! In an appeal from a later murder trial over which I presided wherein I had again sent the final instructions with the jury during deliberations, defense counsel objected. The Indiana Supreme Court held that allowing the jury to have a copy of the final instructions was error. The Court stated however, that since the defendant had not shown how defendant was prejudiced by such action, the error was harmless and the conviction was affirmed.

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In spite of the Indiana Supreme Court reprimand, I continued this practice in all civil and criminal cases. Current Indiana Supreme Court Rules of Criminal Procedure now specifically allow note taking and the jury to have a copy of the final instructions and original exhibits with them during deliberation. Also a juror may submit a question to the judge to be answered by a witness.

After taking seats around the long table, the jurors first agreed upon a foreman. There were no volunteers and a well regarded farmer, Philip Michael, who lived on the family homestead near Fremont, Indiana, reluctantly agreed to be foreman. All jurors agreed that the first thing that they had to decide was if the evidence proved beyond a reasonable doubt that David James Roberts intentionally killed William and Elizabeth Harold. If they agreed that Roberts intentionally had killed them, then they would decide if the killing was done with malice and premeditation (Counts I and III). They also had to decide if the deaths of William and Elizabeth Harold had occurred in connection with a burglary (Counts II and IV). Burglary required a finding of uninvited entry into the house by Roberts through a closed door or window and that he did so with the intent to commit arson, rape or murder. The next decision for the jury was to decide if Roberts committed arson (Count VI) and if so, did such arson cause the death of Jenny Harold (Count V). There was a general discussion by the jurors of the facts and the inferences that could be drawn. Some of the final instructions were reviewed. The discussions were calm, deliberate and well organized.

Much weight was given to the possible identifications of Roberts’ car at the New Whiteland and Indianapolis gas stations on the 19th of January, 1974; Roberts’ statement to Lt. Allen that he, Roberts, was the only one who used or drove his gold 1970 Buick Riviera on the 19th and 20th; the testimony of Richard Roman wherein he positively identified Roberts as the person who obtained the red five gallon gas can from the Renkite Shell station on the 19th; the fact that the same gas can was found at the Harolds’ house; the inquiry as to directions to Pine Drive, the street where the Harolds lived, by the driver of a car identified as Roberts’ car; Roberts’ motive to kill the sole witness against him on the theft charge to avoid conviction and possible imprisonment; the fact that the intruder did not take anything from the house (except possibly cash from the wallet and purse) indicating that the intruder was not a common burglar but had some other reason to enter the Harolds’ house.

Several jurors remembered the statement that Roberts’ parole officer was contacted. If Roberts was on parole, he must have been sentenced to a term of years for a felony and therefore would have to serve the remainder of the original sentence in prison as a result of any parole violation. This would add to the motive to avoid conviction on the theft charge.

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The jurors also discussed the fact that Roberts had obviously lied to Lt. Allen as to his whereabouts on January 19 and 20, 1974. He was not with LeRoy Loraine watching television and drinking until 1:30 a.m. LeRoy Loraine was with his girl friend and not with Roberts.

Several jurors were concerned about a portion of the testimony of Lt. Lasiter. He stated that a fireman at the Harold house on the morning of the murders at about 6:30 a.m. had seen a car that looked like Roberts’ 1970 Buick Riviera being driven by a black male. The fireman later was shown a group of photographs including Roberts’ photograph. The fireman picked out a photograph of a person named Douglas Milford and not Roberts as the driver. Lt. Lasiter testified that he had investigated further and personally determined that Douglas Milford was not involved in the murders. The jurors wondered why the prosecution did not explain this further. Why did the police have a photograph of Douglas Milford? Why was Douglas Milford driving a car that looked like Roberts’ car that early morning in front of the Harold house if he was not involved? What information did Lt. Lasiter obtain to lead him to believe that Milford was not involved in the murders? Defense counsel had probably brought out the Milford information on cross examination of Lt. Lasiter to raise the possibility that someone else other than Roberts was involved and possibly committed the murders. The jurors were concerned with this apparent lapse in the investigation.

After further lengthy discussions it was evident that all jurors thought that Roberts had planned to kill William and Elizabeth Harold, that he had killed them, and that he intended to kill them when he entered the house. The testimony of Richard Roman was crucial to the jurors. They believed that he had in fact given the red five gallon gas can to Roberts the afternoon before the murders.

As to Counts II and IV which required a finding of burglary and a “breaking” into the house, some jurors thought that there was no evidence as to how Roberts entered.

Since the jurors’ verdict could result in the death sentence for Roberts, some jurors expressed the opinion that they could not make a mistake and if they were not absolutely sure, perhaps they should consider a verdict of second degree murder and impose a life sentence or perhaps a term of years from fifteen to twenty-five years. The jurors decided to have dinner before further deliberations and so informed the bailiff.

After dinner the foreman asked each juror to express his or her opinion as to the guilt or innocence of Roberts. Ten of the jurors thought that Roberts was guilty on all charged counts. Two were hesitant. They said that they thought he was guilty but that since a guilty verdict could lead to a death sentence, they were reluctant to make such an important decision. The jurors again reviewed the evidence. Further discussion followed. The jurors decided to take a written secret vote. The jurors voted several times with further discussion after each vote. Finally, the vote was unanimous.

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The foreman then knocked on the door and told the bailiff that they had reached a verdict.

All court personnel and the attorneys had stayed at or near the courtroom during all jury deliberations anxiously awaiting the verdicts. I was available at all times in case the jury had a question. There was a lot of nervous pacing. While the jury was deliberating, there was the usual speculation as to how long it would take for a jury decision. A fast verdict may or may not be a favorable one. If the jury took a long time to decide, perhaps they could not agree and there would be a “hung jury.” If so, Roberts most certainly would be tried again or a plea bargain might be agreed to for a lesser offense.

23

The Trial-The Verdicts

November 18, 1975

At 8: 30 p.m. the jury indicated to the bailiff that they had arrived at their verdict. Roberts and counsel were advised and all returned to the courtroom. The Bailiff led the jurors into the jury box. All was very quiet in the courtroom. The expressions on the faces of the jurors were somber.

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I asked the foreman, Philip Michael, if the jury had reached a verdict and he answered that they had. The verdict was handed to the bailiff who then handed it to me. I read the verdicts to myself to see if they were in proper form. They were. I asked the defendant to stand and I read aloud the verdicts of the jury.

“We the jury find the defendant David James Roberts guilty of murder in the first degree as charged in Count I (intentional premeditated killing of William Harold with malice) and sentence him to life imprisonment. We the jury find the defendant David James Roberts guilty of murder in the first degree as charged in Count III (intentional premeditated killing of Elizabeth Ann Harold with malice) and sentence him to life imprisonment. We the jury find the defendant David James Roberts guilty of murder in the first degree as charged in Count II (taking the life of William Harold while committing burglary) the sentence to be determined after further evidence in phase two of the trial. We the jury find the defendant David James Roberts guilty of murder in the first degree as charged in Count IV (taking the life of Elizabeth Ann Harold while committing burglary) the sentence to be determined after further evidence in phase two of the trial. We the jury find the defendant David James Roberts guilty of first degree murder as charged in Count V (taking the life of Jenny Harold as a result of arson) the sentence to be determined after further evidence in phase two of the trial. We the jury find the defendant David James Roberts guilty of arson in the first degree as charged in Count VI and sentence him to five to twenty years in prison.”

Roberts showed no emotion. There was no celebration. All was quiet in the court room.

At the request of Tom Jones, the jury was individually polled by me. I asked each juror if the verdict of guilty on all counts was in fact his or her personal judgment. All answered quietly yes. I thanked the jurors and told them to return to court on December 3, 1975, at which time they would hear further evidence in order to determine if the death penalty would be imposed under counts II, IV and V. I then issued an order that the defendant be held in custody without bail and delivered immediately to the Sheriff of Marion County, Indianapolis.

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24

Indianapolis

(Prior to Roberts’ Trial)

On a frigid November night in 1974 a twenty year old white woman with her six month old son was driving her automobile in Indianapolis, Indiana, and stopped at a red light. Suddenly the passenger door was opened and a black male entered the car brandishing a handgun. He ordered the driver to drive to a vacant area on the outskirts of Indianapolis. Upon arrival, he threatened to kill her if she resisted and raped her twice. She was then locked in the trunk. He drove the car several miles and then abandoned the car.

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Later a passerby heard her pounding on the inside of the trunk and obtained her release. The infant was not in the car. The infant was later found dead at the side of a nearby roadway. The child had apparently been thrown from the car and died from exposure.

The police showed the woman several photographs of black males and she positively identified David James Roberts as her assailant. Charges of rape, kidnapping and murder were filed against Roberts in the Marion Superior Court in Indianapolis. He was immediately arrested and held without bail.

These charges were set forth in the newspaper article which some of the first panel of jurors had read which caused me to dismiss these jurors.

Understandably there was great condemnation in the press over the fact that, “a murderer had been released on bail by the judge to murder again.” The Indiana Governor sent a special representative to Angola to question me as to why I released this murderer on bail. I explained to the representative that Roberts had been released on bail not by me but by the Johnson Circuit judge, and that considering the evidence at the bail hearing, the release was required by law. The Governor’s aid was not satisfied at all by the explanation and left stating something about liberal judges and that they were going to get that law changed. The law has not been changed. Trial of these Indianapolis charges was held after the New Whiteland Roberts’ murder trial in Steuben County ended. The first Indianapolis trial of Roberts ended in a mistrial. When the jury was deliberating, one of the jurors became ill and the deliberations could not continue. There was no alternate juror. A second trial was held and also ended in a mistrial. A juror during deliberations became mentally unstable and violent from the strain of the trial and had to be hospitalized. Again there was no alternate juror. The third trial ended with a conviction and sentencing of David James Roberts on all charges. What courage the young woman must have had to testify in three trials.

25

Roberts’ Criminal Record

A criminal records check made before Roberts was charged with the Harold murders and arson revealed that Roberts had previously served about six years of a twelve year sentence at the Indiana State Reformatory for armed robbery in Crown Point, Indiana. The armed robbery occurred on March 11, 1966 when Roberts was twenty-two. The Amended Affidavit charging armed robbery stated that Roberts had obtained $1.50 from a woman by threat using a pistol. Roberts entered a plea of guilty pursuant to a plea bargain. The armed robbery statute called for

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a determinate sentence of between ten and twenty years. The Lake Criminal Court judge sentenced Roberts to twelve years in prison pursuant to the plea agreement.

He was on parole at the time of the Harold murders. He had served about six years of the twelve year sentence.

He was involved in a 1969 disturbance at the prison during which one inmate was killed and forty six others injured. As a result of injuries sustained in the disturbance, Roberts spent about nine months in the hospital. Roberts and 12 other inmates filed a one million dollar civil suit against the State of Indiana alleging the use of excessive force by state employee prison guards.

At the omnibus hearing the defense counsel had filed a Motion in Limine asking me to forbid any reference to the armed robbery conviction and parole in the first phase of the trial unless Roberts testified. I had granted the motion.

The decision by me to not allow the prosecutor to introduce evidence of or refer to the armed robbery and parole (except for cross examination of defendant if he testified) was made by me as a cautionary matter to avoid error. The prosecutor made a strong argument that he should be able to introduce evidence of a possible parole violation which was very relevant on the issue of Roberts’ motive to kill William Harold to avoid six more years in prison for probation violation. I had to weigh this against the possible prejudice to Roberts if the jurors knew of a prior serious crime having been committed by Roberts.

If Roberts had testified, the previous conviction of armed robbery would have been admissible upon cross examination as proper impeachment testimony. When a person testifies, the witness places credibility of the witness in issue and having committed robbery (theft from the person) is considered relevant as to the witness’s credibility. Defense counsel did not want to risk having the jury hear such evidence. Even though evidence of a prior crime should only be considered by the jury as evidence of truthfulness, a juror might let the conviction influence the decision as to guilt or innocence and defense counsel did not want to take this risk by having Roberts testify.

Evidence of the pending Indianapolis charges of murder, rape and kidnapping against Roberts was not admissible as these were only charges. Even if they were convictions, evidence of these convictions would not be admissible to prove that Roberts committed the prior New Whiteland murders or as evidence upon cross examination relating to his credibility. Under Indiana law conviction of rape, kidnapping and murder is not evidence that a witness is not telling the truth or that he committed a prior murder! At the omnibus hearing, pursuant to defendant’s Motion in Limine, I had ordered the prosecution not to mention these charges.

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When the jurors had been deliberating the guilt or innocence of Roberts they had no knowledge of the rape, kidnapping and murder charges pending against Roberts in Indianapolis or of his previous conviction, imprisonment and parole for armed robbery. The jurors did not know that a conviction on the theft charge would have resulted in revocation of parole and six additional years of imprisonment for Roberts. This would have been a much stronger motive than only avoiding a theft conviction.

26

The Trial Phase Two

December 3, 1975

On December 3, 1975, phase two of the trial was held. The twelve jurors and the alternate returned to the courtroom and were welcomed again by me.

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All attorneys and David James Roberts were present. Roberts was wearing his usual suit and tie but was shackled at his wrists and ankles. Before the jury entered the courtroom, over the objection of the sheriff, I directed that Roberts be unshackled. I thought that it would be prejudicial to Roberts to appear shackled. The jury would wonder why. I first gave additional Final Instructions to the jury concerning the following. The sole issue for determination by the jury was whether David James Roberts had been convicted of robbery prior to the Harold murders. If he had not, the mandatory sentence on Counts II, IV and V was life imprisonment. If he had, the mandatory sentence was death on each of said counts. The prosecutor had the burden of proving beyond a reasonable doubt that the defendant David James Roberts was in fact the same David James Roberts who had previously been convicted of robbery. At the request of the Tom Jones, I also gave the following final instruction to the jury:“The Indiana Constitution states that cruel and unusual punishments shall not be inflicted. All penalties shall be proportional to the nature of the offense. The Indiana Constitution further provides that the Penal Code shall not be founded on vindictive justice.” In 1983 the Indiana Supreme Court decided that the above jury instruction should not be given to the jury. The court held that these constitutional provisions were merely limitations on the legislature when enacting criminal laws and that the jury should not be made aware of these provisions. The court stated without prior authority or citation, “These proposed instructions would have conveyed to the jury that it had the power of nullification, which clearly it does not under the law.”

After a brief opening statement, the prosecutor first introduced and had admitted into evidence a certified record of the proceedings before the Lake Criminal Court on June 17, 1966, which included Amended Affidavit of Armed Robbery, Roberts’ guilty plea, the judgment of the court that David James Roberts was guilty of armed robbery, the sentence of twelve years imprisonment in the Indiana Reformatory at Pendleton, Indiana, and the Pendleton Admission Summary. The record disclosed that Roberts was represented by attorney Max Cohen.

The Amended Affidavit stated: “That David James Roberts on the 11th day of March, 1966, did forcibly and feloniously take from the person of Mildred Wiscolik, by violence and by putting her in fear, certain articles of value, to wit: $1.50 in money then and there being the personal property of Mildred Wiscolik while the said David James Roberts was armed with a pistol.” The Admission Summary at Pendleton Reformatory contained the following:“INMATES STATEMENT: At the time of my crime, I was by myself. I saw three ladies in a car, and approached them and told them ‘this is a stick-up.’ I took $40.00 and fled. I was apprehended six blocks from the scene of the crime by the police.

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I was then taken to jail and questioned. I was not advised of my legal rights nor was I permitted to call my attorney. I was then transferred to the county jail, where I stayed for approximately 4 to 5 months. I then entered a plea of guilty, was sentenced and transferred to the Indiana Reformatory at Pendleton. The above is a true and exact statement given without threat or promise.” The record further showed his parole on December 18, 1972, and Division of Parole Initial Interview. The Interview states:“REMARKS: On 12-19-72 this writer read and discussed the rules and regulations of parole with Roberts and Roberts stated that he was aware of his obligations. Roberts is originally from New Jersey, however, his family now lives in the Gary, Indiana area. Roberts had been given permission to marry a Miss Maryanne Dully, and the two should be married by 12-29-72. Roberts now owns a 1970 Riviera Buick which is properly licensed and insured.

TENTATIVE EVALUATION: This writer anticipates a successful parole for David Roberts. The subject has no previous criminal record and apparently was a good inmate while at the DOC Work Release Center.”

The first witness for the prosecution was Daniel Orewiller.

He stated that he was the Director of Classification at the Pendleton Reformatory and had been for seventeen years. He was custodian of records which included the Inmate’s Registry Book, fingerprints of all inmates, and photographs of all inmates. He stated that the records showed a David James Roberts as an inmate pursuant to a conviction of Armed Robbery in Lake County, Indiana. The records further contained the fingerprints and photograph of David James Roberts. He stated that he was familiar with the inmate David James Roberts and that the defendant in the courtroom was the same identical person. The registry, fingerprints and photograph were introduced and admitted into evidence. The photograph introduced was as follows.

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DAVID JAMES ROBERTS PHOTOGRAPH AT PENDLETON PRISON

AUGUST 22, 1967

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Upon cross examination by Mr. Jones, the witness stated that he was aware of the law suit brought by the defendant against the State of Indiana for certain actions taken by guards at Pendleton. He stated that he was also aware that the Indiana Supreme Court had decided in a landmark case that Roberts could sue the state. Previously the Indiana law did not allow suits against the state for action taken place in prison by guards. Mr. Jones then asked the witness if he did not think it was unusual that Roberts had been arrested for the Harold murders just three days after the Indiana Supreme Court decision in Roberts’ favor. The witness said he had no opinion on that. Mr. Jones then asked, “So you have no opinion as to whether Mr. Roberts was arrested for the Harold murders in retaliation for suing the State of Indiana?” There was objection by Mr. Gantz and I sustained the objection.

Previously the prosecutor, in anticipation of this penalty phase, obtained an order from me that Roberts give a fingerprint exemplar which could be compared to the fingerprints on file with Pendleton Reformatory.

Allen Stout, Indiana State Police Trooper, then testified that he had that morning taken the fingerprints of the defendant David James Roberts. The fingerprint exemplar was then introduced into evidence.

The next witness, Donald Shively, Indiana State Police fingerprint expert stated that he had compared the exemplars of fingerprints from the Pendleton records to the exemplars of fingerprints taken from the defendant by Officer Stout, and that all prints on both cards were the same.

There was no cross examination of the witness. The prosecution then rested.

Tom Jones called only one witness: the defendant! The prosecutor could not object as Roberts had the opportunity to testify that he was not the same David James Roberts that had been convicted of robbery.

DIRECT EXAMINATION BY MR. JONES:

Q. Would you state your name to the Court, please?A. David James Roberts.Q. Now, Mr. Roberts, there’s been testimony concerning an alleged “riot” at the prison in which you were apparently involved. Tell the jury what actually transpired.A. Ah-I had been incarcerated in the Indiana State Reformatory. There was a disturbance on the opposite side of the reformatory. We were on a basketball court and we came around a corner and had a reformatory guard-several of them-level shotguns at me, and told me to lie down on my stomach. I was under the impression that this was to contain the masses-to have a mass

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arrest so to speak. This was not unusual. The crowd was orderly and they were obeying orders. It was quiet. I no sooner lay down on my stomach in a total surrender position-the guards were behind a cyclone fence-and for no apparent reason they opened fire on us repeatedly thirty-one times.Q. Were you shot up in that incident?A. I was shot five times and had my left arm almost severed.Q. Now, did you require medical treatment over that-your arm and that sort of thing?A. Yes, my arm and leg for approximately nine months in the Robert Long Hospital in Indianapolis.

In the heat of battle, sometimes really dumb questions are asked by counsel. This question is an example. Of course after being shot five times and having an arm almost severed, medical treatment would be required. It is like the old joke wherein a young reporter for a Washington newspaper asks Mrs. Lincoln, “Aside from the unfortunate incident with your husband, how did you enjoy the play?” Q. Now did you file suit over this?A. Yes, in federal and state court. The Indiana Supreme Court ruled for the first time that a prisoner could sue the State of Indiana for actions of guards-they handed down what is considered a landmark decision-I set a precedent in being allowed to sue the state.Q. All right. Now when were you arrested for the offense down in New Whiteland?A. Some three days after that decision was passed down. I think that they were out to get me.

All of the above questions and answers were not relevant to the sole issue for determination by the jury in this phase two of the trial. The sole issue was whether Roberts had a previous conviction for robbery. He had already been found guilty of murder in phase one. The prosecutor did not object to any of the questions. He probably did not want to possibly alienate the jury by objecting and appearing to limit the defendant in making his defense. He wanted to appear fair.

FURTHER DIRECT EXAMINATION BY MR. JONES:Q. Now, I want to ask you, Mr. Roberts, one more question. Did you unlawfully and feloniously kill and murder anybody in New Whiteland, Indiana, on the 20th day of January, 1974 having then and there a prior unrelated conviction of the crime of robbery? I want you to look at the jury and tell them if you did that.OBJECTION BY MR. GANTZ: Your Honor, the jury has already found the defendant guilty and now he is trying to say he is not guilty. His answer is immaterial, irrelevant and self serving.THE COURT: Objection overruled. You may answer, sir. There was a hush in the courtroom. The jurors seemed to lean forward not to miss his testimony.

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A. I-no, I’ve never been to New Whiteland prior to being arrested-never in my life. I swear to you before God that I did not murder the Harolds. I am innocent. I beg you to be merciful. Roberts made no further statement. The prosecutor did not cross examine Roberts. There was no further evidence introduced by the defense or by the prosecution. I told the jurors that they had now heard all of the evidence in this case and that they would now hear the closing statements of the prosecutor and the defense.

Mr. Gantz in his closing statement reminded the jury that the sole question for their determination was whether the defendant, David James Roberts, had a prior conviction of armed robbery or robbery. If so, they had a duty under the law to sentence the defendant to death. The evidence of his prior conviction was uncontroverted. The state had proved beyond a reasonable doubt, in fact beyond all doubt, that the David James Roberts who was convicted of armed robbery in the Lake County Criminal court was the same identical person as the defendant. Mr. Jones in his closing argument reminded the jury that they were the judges of not only the facts but also of the law. “As you were instructed by Judge Berger, if any of you have a substantial reason to disregard the law, then you can do so. If there ever was a substantial reason to disregard the law, then this case is a perfect example. The evidence discloses that David Roberts was convicted of armed robbery based upon a charge of stealing one dollar and fifty cents! He was twenty-two and this was his first offense. He admitted to police that he had stolen forty dollars but he was only charged with stealing one dollar and fifty cents. To sentence David James Roberts to death for the theft of one dollar and fifty cents or even forty dollars is cruel and unusual punishment and is not proportional punishment. It is thereby forbidden by the United States Constitution and the Indiana Constitution. The Indiana Constitution specifically states that all punishments must be proportional to the offense and that the penal code shall not be founded on vindictive justice. You took an oath as a juror to render a fair verdict. The only fair verdict in this case is to disregard the harsh strict application of the law, which Judge Berger said you could, follow the Indiana Constitution, and determine that David James Roberts should not be sentenced to death based upon a charge and guilty plea of stealing $1.50. If you believe that the defendant has a prior unrelated robbery conviction, then the only fair verdict is to sentence the defendant to life imprisonment.”

After these closing arguments, I read further instructions to the jury. The jury retired to deliberate. After two hours of very serious deliberation, the jury returned their verdicts. The jury sentenced David James Roberts to death on Counts II, IV and V.

Again there was no reaction from Roberts and the courtroom was quiet. The jury was again polled and all answered that it was their individual verdict that David James Roberts be put to death.

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I have been unable to determine from the jurors I interviewed whether there was any discussion and sentiment by them concerning their right to “judge the law” and thereby refuse to impose the death sentence solely because Roberts as a twenty-two year old had been convicted of armed robbery of $1.50. Most probably, the circumstances of the crimes overrode any serious consideration of this aspect and, as one juror stated to me, “Three lovely lives were snuffed out for no reason. Why should Roberts have a life?” The jury was thanked by me and excused from further service. I then rendered Judgment of Conviction based upon the jury verdicts on all counts. I set the sentencing hearing for December 18, 1975. I directed Thomas Hanselman, the probation officer, to prepare and file his pre-sentence report before that date.

Indiana law required a sentencing hearing and a pre-sentence report even though the sentences were mandatory. The jury verdicts of life, death and five to twenty years were not recommendations to me as judge which I could decide not to impose after a sentencing hearing. I had no discretion and had to enter the sentences found by the jury. In order to comply with the law however, I set and held such a sentencing hearing. The sentencing hearing was held on December 18, 1975, with the defendant and all counsel present. The pre-sentence report was filed by the probation officer. In the report under “Offender’s Version of Offense” it was stated, “The defendant told me, I didn’t do it. I am innocent. I just can’t believe all of this is happening to me.” The report also under “Present Attitude” stated, “The defendant’s present attitude is very good. When I interviewed the defendant he answered my questions readily and without hesitation. He has the feeling that some people in some parts of the system are out to get him. He also told me that he was able to put it out of his mind. The defendant told me he has very few regrets. One of the things he wished he would have done was become a pilot, and at one time he would have liked to become a member of the Lake County Sheriff’s department. The defendant expressed the opinion that he could not see how the jury could have conscientiously returned their verdict.” Without hearing any further evidence or argument of counsel (Roberts declined to make any statement), I asked Roberts to stand and entered sentencing judgment as follows: “Mr. Roberts, pursuant to the verdict of the jury and Indiana law, I sentence you, David James Roberts, to life imprisonment on Count I (intentional premeditated killing of William Harold with malice); to life imprisonment on Count III (intentional premeditated killing of Elizabeth Ann Harold with malice); to death on Count II (taking the life of William Harold while committing burglary having committed an unrelated crime of robbery); to death on Count IV (taking the life of Elizabeth Ann Harold while committing burglary having committed an unrelated crime of robbery); to death on Count V (taking the life of Jenny Harold as a result of arson having

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committed an unrelated crime of robbery); and to five to twenty years imprisonment on Count VI (arson in the first degree).”

When I announced my sentences, I did not comment upon any aspect of the trial or direct any statement to Roberts. I had made it a practice not to address a defendant at a sentencing even when I had sentencing discretion (which I did not have in this case). Everyone knew the nature of the crimes and the effect it had upon the victims’ family. Thoughts of rehabilitation were meaningless when the sentence was death. Most judges however at sentencing lecture a defendant as to how horrible his or her conduct was, how it had devastated the victim’s family, how the punishment was justified and should be accepted by the defendant, and, if not a death sentence, that the defendant should work hard in prison to overcome his or her past. I do not believe that a judge should pontificate upon the obvious-that a judge should flaunt his seeming superiority of knowledge and morality. My motto was, “The less said the better.”

I then entered an order staying the execution of the three sentences of death pending appeal to the Supreme Court of Indiana. The method of execution was by electric chair (changed to lethal injection in 1995).

The sheriff was directed to deliver the defendant to the Warden of the Indiana State Prison.

During the trial, except for determining whether there was sufficient evidence to avoid a directed finding of not guilty, I was not concerned with the guilt or innocence of Roberts. That was for the jury to decide. I was completely involved with making sure that the trial was fair and that no errors of law occurred. As I now reflect upon the evidence, I wonder how I would have decided if I had been on the jury. I believe that the evidence showed beyond a reasonable doubt that Roberts purchased the red gas can found at the scene of the murders and that he had a motive to murder to avoid imprisonment for the theft charge and possible parole violation. Who else except a person with a motive would have come into this quiet middle class white neighborhood and murdered the Harolds? But would I have been willing to find Roberts guilty of murder knowing that he could also be sentenced to death? I am very glad that I was not on the jury.

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PART THREE

THE APPEAL

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27

Motion to Correct Errors-Steuben Circuit Court

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February 13, 1976

On February 13, 1976, the defendant filed a Motion to Correct Errors. One purpose of such a motion is to give the trial judge the opportunity to correct errors that he might have made at the trial and order a new trial if necessary. As you can imagine, not many of such motions were granted. Also, to preserve any objections for review by the appellate court, the objections had to be set forth in the motion.

The Roberts’ motion set forth eight rulings at trial by me which were alleged to have been erroneous. It was also alleged that the evidence was insufficient to support Roberts’ conviction. The motion also alleged that there was not sufficient evidence that Roberts had committed burglary, a necessary element of a conviction under Counts II and IV. The motion further alleged that the Indiana criminal statute under which Roberts was charged was in violation of the Eighth Amendment to the United States Constitution which prohibits cruel and unusual punishments as incorporated in the Fourteenth Amendment.

I directed the parties to file briefs concerning these matters and set hearing on the motion for March 11, 1976. After several continuances of the hearing date, hearing was finally held on June 14, 1976. Charles Gantz and Tom Jones were at the hearing. Legal arguments were made and I took the matter under advisement in order to review all of the legal citations and ponder my decision. I announced that I would render my decision on June 24, 1976.

I carefully read the relevant United States Supreme Court decisions cited by the attorneys. I had serious reservations about the constitutionality of the Indiana death sentence statute. One troublesome aspect of the statute was that it mandated a sentence of death for some murders and mandated a sentence of life imprisonment for other murders without any apparent rational reason for the distinction. As an example in the Roberts case a conviction under counts II, IV or V mandated the death sentence for first degree murder if the defendant had an unrelated prior robbery conviction. However, the statute mandated that the penalty for first degree murder if the defendant had a prior unrelated first degree murder conviction was life imprisonment! If a defendant has committed a prior armed robbery the sentence must be death but if the defendant has previously murdered someone, the sentence must be life imprisonment! Determination of the penalty for a criminal offense is traditionally a matter to be determined by the legislature and courts defer to such determination. However such a distinction seemed manifestly unfair.

I was of the opinion that a more serious aspect of the Indiana death sentence statute was the fact that a mandatory death sentence as in the Roberts case did not leave any discretion with the jury to decide between a life sentence and a death sentence. Furman required, in determining a

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sentence of death, that there be a consideration by the jury of not only the circumstances of the crime but also the character of the defendant. I thought that mandating a death sentence does not allow for such consideration and therefore a statute mandating death may be unconstitutional as cruel and unusual punishment.

I took a brief vacation with my family to Sanibel Island, Florida, to try and relax after the emotional and mental strain of the trial. I especially wanted some quiet time to walk the beach to consider my decision on the death penalty. I was at that time personally opposed to the death penalty, and I did not want my personal opinion in any way to influence my legal opinion. In my mind I went over and over the reasons why I should or should not declare the Indiana death penalty statute unconstitutional. I remember on the last day of my vacation standing under the beautiful and rustic Sanibel Lighthouse and reaching my decision.

On June 24, 1976, I rendered my decision.

I first denied the objections to the eleven rulings that I had made at the trial, and I further determined that the evidence was sufficient for Roberts’ conviction.

I then ruled that the Indiana death statute which mandated a sentence of death if the defendant had a prior unrelated robbery without giving the jury any discretion was unconstitutional as a violation of the Eighth Amendment prohibiting cruel and unusual punishments as incorporated in the Fourteenth Amendment to the United States Constitution.

I vacated the three death sentences I previously imposed under Counts II, IV and V and imposed life sentences thereon. I let stand the two life imprisonment sentences imposed under Counts I and III and the five to twenty years imprisonment under Count VI for Arson.

My decision to declare the Indiana mandatory death sentence statute unconstitutional and thereby vacate the death sentences, in effect agreed with and validated the argument of Tom Jones in the second phase of the trial. In the second phase, the jury had imposed a sentence of death rather than life imprisonment solely by virtue of a prior armed robbery of $1.50. The jury must have thought that a death sentence for armed robbery was not unreasonable, not unfair, not vindictive and not disproportionate. My decision basically overturned the jury’s decision. The Indiana Constitution states in Article I, Sec. 18 that, “The penal code shall be founded on the principles of reformation and not vindictive justice.” It is difficult to understand how electrocuting a person aids his reformation.

There were no Federal or State Court decisions which directly addressed this matter except a decision of the North Carolina Supreme Court which held that such mandatory sentences were constitutional. This decision was on appeal to the United States Supreme Court.

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It is rare that a trial judge will declare any act of the Indiana legislature unconstitutional. The usual practice is to accept any such law and defer any constitutional challenge to the appellate courts. I felt strongly about this matter and was not willing to defer even though my decision would be contrary to the decision of the North Carolina Supreme Court.

The decision declaring the Indiana death penalty unconstitutional was not binding on any other court in Indiana and was subject to being reversed by the Indiana Supreme Court. The decision was not popular, except with the defendant, and some editorials were written strongly opposing the decision. I received several threatening anonymous letters. One stated that he hoped someone would burn my wife and children alive.

On July 2, 1976, eight days after my decision, the United States Supreme Court in

Woodson v. North Carolina ruled unanimously that a mandatory death sentence was a violation of the Eighth and Fourteenth Amendments and ordered the Supreme Court of North Carolina to reverse the previous decision. The evidence disclosed that four armed men including Woodson, an African-American, drove to a convenience store. Woodson, who claimed that he had been forced to accompany the others, stayed in the car while two others went into the store. They shot the clerk and a customer, took the money from the cash register and fled in the car. The clerk died from her wounds. The jury found Woodson guilty of murder and sentenced him to death as required by the North Carolina statute. It is interesting to note that at the time of the adoption of the Eighth Amendment, all states provided for mandatory death sentences for certain crimes.

By virtue of the Woodson decision of the United States Supreme Court, the Indiana death sentence statute, which was similar to the North Carolina statute, became unconstitutional. I was vindicated! To comply with the Woodson decision, the Indiana legislature in 1977 adopted a comprehensive new murder statute that provided for a bifurcated trial if the death sentence was a possible verdict, and set forth specific aggravating and mitigating circumstances which the jury must consider and find before a death sentence could be imposed. There are no more mandatory death sentences in the United States.

Except for death sentences, other felony mandatory sentences, such as life imprisonment without possibility of parole, are constitutional. A Michigan statute constitutionally requires such a mandatory sentence for possession of more than 650 grams of cocaine.

If the Roberts case had been tried under the new 1977 Indiana act, the jury would have been able at the sentencing phase to hear evidence concerning the Indianapolis rape, kidnapping and murder charges. The jury might very well have constitutionally sentenced David James Roberts to death.

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28

Judicial Review

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My decision to declare the Indiana death statute unconstitutional was the exercise of the power of a court (judicial branch of government) to declare the act of the Indiana legislature (legislative branch of government) void.

The Indiana and United States Constitutions create three seemingly co-equal branches of government (executive-legislative-judicial). The Constitutions do not specifically grant to the judiciary the power to review legislative or executive acts or action and declare them void. Where did I obtain such a power? The answer is John Marshall, third Chief Justice of the United States Supreme Court, who served for thirty-four years beginning in 1801.

The United States Supreme Court had an inauspicious beginning. Alexander Hamilton wrote

in the Federalist, “The judiciary is beyond comparison the weakest of the three departments in power.” The weakness of the early court was demonstrated by the fact that the new Capitol had not provided for a court room or chambers for the new Supreme Court. When the Court moved from New York to Washington in 1791, the Court held sessions in a plain room in the basement beneath the Senate Chambers. It was not until 1935 that the court would have its own building.

The perceived weakness of the court changed drastically when President John Adams appointed John Marshall in 1801 as Chief Justice at the age of forty-six. Many contemporaries of John Marshall had serious doubts as to his ability to be Chief Justice. He was born in Fauquier County, Virginia, in 1755. He had very little formal education both generally and in the law. His formal education consisted of being schooled by a clergyman for one year and by a tutor who lived with the family for one year. The rest of his education was acquired from his father who himself had a very limited education. His legal education consisted of attendance at George Wythe’s lectures at William and Mary College for six weeks.

George Wythe was a signer of the Declaration of Independence and a kindly and scholarly lawyer and jurist. In 1779, William and Mary College established a “professorship of Law and Police” and the Williamsburg institution appointed him to occupy the chair. It was the first law professorship in the United States. In 1806 he was tragically murdered by his grand-nephew. His grand-nephew, seemingly in debt and anxious to receive his legacy, poisoned Wythe’s coffee. The testimony of the only witness, a cook, was inadmissible in Virginia because he was black, and the murderer was set free.

In 1818 the Indiana legislature passed an act excluding Negroes and Indians from testifying in courts of law in which any white person was a party in interest. The law was repealed in 1865.

In spite of such educational deficiencies, John Marshall during his tenure established the fundamental principles of the interpretation of the Constitution. Justice Oliver Wendell Holmes

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stated, “If American law were to be represented by a single figure, all would agree without dispute that the figure could be one alone, and that one, John Marshall.”

In 1803 John Marshall rendered his famous decision in Marbury v. Madison. That decision established the doctrine that all actions of the legislative and executive branches of government are subject to review by the judicial branch and may be declared void if in violation of the Constitution. Justice Marshall stated that although such power is not specifically stated in the Constitution, such power was necessary and inherent in establishing a constitution and a government pursuant thereto. He stated that the Constitution “confirms and strengthens the principle” of judicial review. Limitations on government power set forth in a constitution would be to no avail if no legal mechanism (the courts) was available to enforce them.

When I rendered my opinion on June 24, 1976, declaring the Indiana death statute unconstitutional, I was exercising the power of the court established by John Marshall 173 years before. If I had not done so, David James Roberts may have been put to death pursuant to an unconstitutional death statute.

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Cruel and Unusual Punishments

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The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibition against cruel and unusual punishments was considered a basic right of the citizens and first appeared in the

Massachusetts’ Body of Liberties of 1641. Such a right was set forth in the federal Bill of Rights adopted in 1791 as the Eighth Amendment.

The prohibition against cruel and unusual punishments has two components. One component is that the actual punishments should not be cruel and unusual. They can be cruel if they are not unusual.

English and colonial history contain many cruel and unusual punishments. At one time using the rack, whipping, dunking or drowning in water, the shaming post, branding, cutting off ears, slitting noses, burying alive, beating to death and impalement were thought proper punishments. Treason was punished by first hanging, then cutting down while still alive, then disembowelment, then dismemberment. Such harsh and terrible punishments were never to be allowed again.

The second component is that the punishments shall be proportional to the offense. The Indiana Constitution states in Article 1, Section 16, “Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.” The concept of proportionality dates back to the Old Testament which proclaims “an eye for an eye” not an eye, ear and hand for an eye!

Imposing a mandatory death sentence in the Roberts case is an example of a violation of the proportionality component in the Eighth Amendment and the Indiana Constitution. The jury must have the opportunity not only to hear the facts of the crime but also any mitigating or aggravating circumstances before imposing the death sentence.

As noted in my opinion and the opinion of the United States Supreme Court, mandatory death sentences violated the United States Eighth Amendment prohibition against cruel and unusual punishments as incorporated in the Fourteenth Amendment. The “doctrine of incorporation” has a long and interesting constitutional history.

It is very important to recognize that the Bill of Rights (Amendments I-VIII) when adopted were prohibitions against federal government action. They did not impose limitations on state power (what a state can do). When the Bill of Rights was adopted, the citizens wanted to make sure that this new federal government that they had recently created did not infringe upon their rights. They were not concerned about any laws that their state might adopt and enforce. Therefore the Eighth Amendment did not prohibit a state from adopting and enforcing cruel and unusual punishments. For many years after the Bill of Rights was adopted and even after the

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adoption of the Fourteenth Amendment, the Bill of Rights was held by the United States Supreme Court not to apply to state action.

The Fourteenth Amendment was adopted in 1868. The original purpose of the adoption of the Thirteenth, Fourteenth and Fifteenth Amendments was to make the former slaves equal citizens. Such original purpose as to the Fourteenth Amendment has been drastically expanded by the United States Supreme Court.

The Fourteenth Amendment prohibits a state from acting (as contrasted with federal action). The Fourteenth Amendment does not specifically prohibit a state from imposing cruel and unusual punishments as the Eighth Amendment does. However, among the many prohibitions against state action contained in the Fourteenth Amendment are the words “nor shall any State deprive any person of life, liberty or property without due process of law.” This is known as the “due process” clause.

The meaning of due process had a long and consistent history in England, the colonies and the United States. It meant that government must use a fair procedure before a person could be deprived of his life, liberty or property. A fair procedure included the right to be advised of the charges against him and to be given an opportunity to defend such charges before an impartial tribunal. This later became known as “procedural due process.”

As early as 1857 in Dred Scott v. Sandford, the United States Supreme Court incorporated a new concept into the meaning of due process. This new concept is called

“substantive due process.” The Dred Scott case held that taking property (slaves) away from the owner by legislation (the Missouri Compromise) was arbitrary and unjust, and if a law was arbitrary or unjust, it violated due process and was unconstitutional. This and subsequent decisions thus gave the judicial branch the right to inquire into all legislation to determine it was arbitrary or unjust.

Starting during the 1925-1950 period, the United States Supreme Court began incorporating within the due process clause another meaning never envisioned by the founding fathers. It was determined that there were certain “fundamental rights” which if denied by government would constitute a denial of substantive due process. What rights were a “fundamental right” and therefore protected against federal action by the Fifth Amendment due process clause and protected against state action by the Fourteenth Amendment due process clause would be determined on as case by case basis.

During this period, the Supreme Court determined that the prohibition against cruel and unusual punishments (federally prohibited by the Eighth Amendment) was a fundamental right

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and therefore incorporated in and protected by the due process clause of the Fourteenth Amendment.

During the period 1950-2013, the United States Supreme Court on a case by case basis ultimately incorporated all but four rights specified in the Bill of Rights into the fundamental rights concept protected by the “substantive” due process clause in the Fourteenth Amendment.13 Therefore by virtue of the Fourteenth Amendment all citizens are protected against a state taking action which violates the rights set forth in the first eight amendments except four. The four exceptions are (1) the Fifth Amendment right not to be prosecuted for a felony unless charged by a grand jury (as explained above the Roberts charges could have been brought by the prosecutor merely filing a criminal Information), (2) the Seventh Amendment right to a civil jury trial in all actions seeking $20.00 or more in damages, (3) the Third Amendment right not to be forced to house soldiers in peacetime (which if ever claimed would be held to be a substantive protected right), and (4) the Eighth Amendment right prohibiting excessive fines.

It was not until 2010 that the Second Amendment right to bear arms was declared to be a substantive due process fundamental right protected against state action by the Fourteenth Amendment (McDonald v. Chicago). See page 305.

Thus each state can begin a criminal prosecution by a criminal Information approved only by the prosecuting attorney and can deny or limit a jury in civil cases, all subject to the state’s Constitution.

In addition to most of the first eight amendment rights being determined to be fundamental rights and therefore incorporated in the due process clause of the Fourteenth Amendment and binding upon the states, many other rights, based upon the values and view of justice held by the Founding Fathers applied to modern ever changing circumstances, have been determined to be protected fundamental rights. These include the “right to an habitable environment” and the very controversial “right to privacy” which has been determined by the United States Supreme Court to include the right to an abortion and the right to contraceptive information and usage.

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Indiana Supreme Court Decision

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May 5, 1978

The ruling on the Motion to Correct Errors was duly appealed, briefed and argued before the Indiana Supreme Court by prosecution and defense counsel. The prosecution did not appeal.

The Indiana Supreme Court consisted of five members. One member, Justice Roger DeBruler, had previously been judge of the Steuben Circuit Court and upon his appointment to the Supreme Court was succeeded by Judge Louis Sisler. Another member, Justice Richard Givan, was an Indiana Law School classmate and close friend of my previous law partner.

The Indiana Supreme Court opinion in Roberts v. State of Indiana was rendered on May 6, 1978. Justice Givan wrote the opinion of the court.

Several days after the Supreme Court decision was officially entered I received notice of the decision by mail. As I opened the envelope I nervously wondered- Had I been reversed? Had I made any mistakes in my rulings? Would the trial have to be held again? All of these thoughts came rushing through my mind. With trepidation I opened the envelope and slowly read the decision.

The trial court decision was affirmed.

The Indiana Supreme Court unanimously found that the evidence sustained the verdicts and that no error had been committed by me in my rulings at trial. The trial rulings were objected to on the basis of the best evidence rule, hearsay evidence being admitted (there were seven specific objections in this category), improper foundation being laid for the introduction of documentary evidence, inaccurate and inflammatory photographs being admitted and prejudicial questions being allowed.

The Indiana Supreme Court further affirmed the vacation of the death sentences and the imposition of three life sentences based upon Woodson and French. The court did however, by virtue of a recent decision, vacate the sentence of five to twenty years rendered upon the Count VI Arson conviction as being included in the life sentence rendered for the murder of Jenny Harold under Count V. Justice Prentice agreed to the opinions of the other justices except that he dissented as to the guilty verdicts on Counts II and IV as these charges required a finding that the defendant had committed burglary. Burglary is defined as a breaking and entering with the intention of committing a felony. The Roberts’ jury had also been concerned with this aspect. Justice

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Prentice believed that there was not sufficient evidence of a forceful “breaking” into the Harold house (if a person enters a house through an open window or door it is not a technical breaking). The other four justices believed that there was sufficient evidence of a breaking and stated in their opinion, “The Jury could have reasonably inferred from the evidence of a struggle inside the house and from the other facts leading up to the night in question that Roberts was not an invited guest of the Harolds and that his entry was attained by force.”

In French v. State of Indiana decided on May 6, 1977, the Indiana Supreme Court formally struck down the Indiana 1973 death statute under which the Roberts case was tried based upon Woodson, thus effectively affirming my decision in Roberts.

It is interesting to note that in the French case the trial judge did not declare the Indiana mandatory death sentence unconstitutional as I did. The French trial judge upheld it and sentenced French to death. The majority opinion of the Indiana Supreme Court (who were elected at that time) stated, “Although the writer of this opinion does not agree with the present reasoning of the United States Supreme Court opinion upon the issue here involved, we have taken an oath to support the Constitution as interpreted by that Court. We have no alternative but to hold that the 1973 Indiana statute is unconstitutional.” Justice DeBruler agreed completely with the reasoning of the United States Supreme Court. He did not pander to the electorate.

Tom Jones filed a Petition for Rehearing before the Indiana Supreme Court which was denied.

Roberts on his own behalf from prison obtained a complete transcript of the proceedings in anticipation of filing a Petition for Post Conviction Relief with the Steuben Circuit Court. Such a petition was never filed.

Roberts, still protesting his innocence and claiming that the system was out to get him, filed a Petition for Writ of Habeas Corpus with the United States District Court for the Northern District of Indiana. He claimed that his detention by state authorities was unlawful and wanted the federal judge to order his release. The District Judge denied his request.

There have been no further state or federal court proceedings.

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Northwest of Indianapolis

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October 25, 1986

On the morning of October 25, 1986, I was reading the Fort Wayne Journal Gazette and on the fifth page I saw a brief article with the headline MURDERER ESCAPES. I was in a hurry and almost skipped reading the article. Curiosity prevailed and I read it. David James Roberts had escaped from custody the previous day.

Roberts had been held since his convictions at the Indiana State Prison at Michigan City, Indiana, which is fifty miles east of Chicago, Illinois. The prison was built during the civil war to house Confederate prisoners. Three out of four of the two thousand prisoners were imprisoned for murder, making it one of the most dangerous prisons in the country.

Roberts had chronic lung problems and was often transported by prison guards from the Indiana State Prison to the Wishard Memorial Hospital in Indianapolis, Indiana, for treatment. Before leaving the hospital after treatment, Roberts was strip searched and shackled. When he was being transported back to the prison, a stop was made at a fast food restaurant. Roberts was allowed to go to the men’s room. The guards stood outside. Upon leaving the rest room Roberts produced a .38 caliber handgun and ordered the guards to go to the parking lot. They all entered the police cruiser and a guard drove as directed to a nearby rest stop. At the rest stop Roberts forced the guards to unlock his shackles. The guards were handcuffed and Roberts went to a payphone. While Roberts was on the phone, the guards ran into the adjoining woods and escaped. Roberts then drove away in the cruiser heading northwest toward Illinois.

Obviously Roberts had help in his escape. Someone had to have placed the handgun in the men’s room. Somehow Roberts had gotten the guards to stop at the right restaurant. The police speculated that one of Roberts’ cellmates may have been his accomplice. The mystery was never solved. Both officers were subsequently disciplined for negligence in handling Roberts. One of the guards confessed to trafficking in contraband for prisoners and was summarily dismissed.

Roberts drove twenty-five miles to the next rest stop. A nondescript older car with the ignition keys under the front seat was waiting for him. He changed vehicles and drove north to the Indiana Toll Road and headed east toward New York City. The Indiana State Police alerted the police in the Gary and Chicago areas to be on the alert for Roberts. His family was closely watched.

Because of Roberts’ history of revenge, the Indianapolis rape victim was moved by the police to an undisclosed location for a week. As a precautionary matter, the Angola City Police made extra patrols in my Angola neighborhood for several days.

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Escape and kidnapping charges were filed against Roberts.

On April 27, 1987, Roberts was placed on the F.B.I. Most Wanted List.

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America’s Most Wanted

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February 7, 1988

The first episode of the America’s Most Wanted show, hosted by John Walsh on the new Fox Network, was aired February 7, 1988, seventeen months after the escape of David James Roberts. The first episode featured David James Roberts, his crimes and his escape. Although the program launched with the challenging statement “Watch Television-Capture

Fugitives” no one knew if it would really work. Fox was a new network then, and America’s Most Wanted showed only in a few areas.

Roberts was the only one featured that night, and as soon as the first commercial break started, the hotline began to receive calls. More than seventy-five calls were received. Most of the tips came from people in the New York City area.

One of the first calls to the hotline was from a woman in New York City claiming she was the girlfriend of a person named Bob Lord. She stated that she lived with him and that he showed a remarkable resemblance to David James Roberts. She further stated that he had become ill and had gone to a hospital emergency room.

The New York City police and FBI immediately started their investigation. The woman identified Roberts as her boyfriend after being shown his photograph. When authorities arrived at the hospital, they discovered that Roberts had suddenly checked out. When they went back to his room they discovered a copy of TV Guide laid on his bed opened to the story of David James Roberts on AMW. Further investigation uncovered the fact that he was the director of a homeless shelter for men on Long Island and was known as Bob Lord. He had been earning an $18,000.00 annual salary. Everyone at the shelter was shocked. He was thought to be a friendly, caring and conscientious worker whom everyone liked.

Four days later on February 11, 1988, Roberts was captured without a struggle hiding out in an apartment in New York City.

Roberts was the first fugitive captured who was listed on the newly established F.B.I. Most Wanted List.

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On January 27, 1989, Roberts plead guilty to escape and kidnapping, was sentenced, and was returned to the Indiana State Prison. John Walsh interviewed Roberts after his capture. Roberts was asked how he felt after he had been profiled in the AMW show. Roberts stated that he was under great pressure. He knew he had to leave the New York area immediately. He did not know where to go. He could not go back to the Chicago area because the police would be looking for him there. John Walsh asked Roberts, “How can you live with yourself knowing that you murdered two adults and two infants?” Roberts answered, “I can live with myself because I am not guilty of murdering anyone. Just because I was convicted does not mean that I am guilty.”

Roberts further stated, “The America’s Most Wanted program may have put persons who had not committed any crime back in prison. How do feel about that, sir?” John Walsh did not answer. Roberts then stated, “Mr. Walsh, I have had many despondent periods during my incarceration but I try to keep my spirits up. I constantly ask God why all this has happened to me. I hope that someday justice will at last prevail and someone out there will come forward with information that proves my innocence.” Thus ends, for now, the extraordinary tale of David James Roberts.

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EPILOGUE

David James Roberts is currently serving four concurrent life sentences at the Pendleton Correctional Facility, Pendleton, Indiana. He is seventy years old. Roberts’ civil law suit for damages against the Pendleton guards and the State of Indiana was ultimately settled. The amount of the settlement was confidential and not revealed.

Callie Loraine Myers, Roberts’ girl friend, after the Roberts trial, attended law school, was graduated with honors and entered the practice of law. She later became a well respected judge presiding over non criminal matters.

Marie Harold was adopted by a loving aunt and uncle and has led a normal life. I recently received an email from Marie Harold as follows: “I just wanted to take this opportunity to thank you for writing the book, Change of Venue. It was a little difficult at first to read with the pictures and details described in the book. You see, I am the surviving daughter and sister of the couple and baby who were murdered on January 20, 1974. The book answered many of my questions that family members could not talk about. I just wanted to thank you for speaking and writing the truth in regard to my family.”

D. Charles Gantz founded Charles Gantz & Associates, a very successful law firm. He is still actively engaged in the general practice of law with emphasis on criminal defense.

Joe Van Valer founded the Van Valer Law Firm after his tenure as Prosecuting Attorney. It now consists of seven attorneys. He continued his successful legal career specializing in construction, real estate and corporate law until his death in January of 2011.

Tom Jones was the senior founding partner of the law firm of Jones, Auger and Auger. He specialized in criminal defense and personal injury law. He was the only Indiana lawyer listed each year since 1987 in the categories of criminal defense and personal injury in Best Lawyers in America. He died on February 24, 2007 as the result of an automobile accident. The

Indianapolis Star commented, “With the passing of attorney Tom Jones we lost a well liked and generous resident rooted in the history of Johnson County.”

After I had served eight years on the bench as the sole judge of the Steuben Circuit Court, and having been the only judge in the county with general jurisdiction, I was exhausted both physically and mentally. I had begun as judge with high expectations of helping others resolve their problems and participating in the administration of justice. I was excited to take on the

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challenges. I was naïve. It did not take long before I was exposed to the raw underbelly of society. How could people act this way without any regard to others? I had never been exposed to or could imagine such actions. Persons appearing before me were murderers, rapists, burglars and thieves. Some defendants had committed incest, child abuse or domestic violence. Some were mentally ill, alcoholics or drug abusers. Married couples could no longer stand each other and could not wait to get a divorce. My actions and decisions as judge were necessary steps in the judicial process but I was wearing thin and it was taking its toll on me. I had given my best but after eight years “I had seen the elephant.” It was time to move on and I resigned as judge.

After I retired from the bench I became Professor of Law at Tri-State University where I taught various law courses. My wife of forty-two years, Susanna Ellen, died in 2005 of breast cancer. My two children live in Angola. I am now doing legal research, writing and lecturing in an attempt to help with legal education of attorneys. I would like to be a good father and keep

active as long as possible for, as in Robert Frost’s insightful poem Stopping by Woods on Snowy Evening:

The woods are lovely, dark and deep. But I have promises to keep, And miles to go before I sleep, And miles to go before I sleep.

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AUTHOR’S COMMENTS

The opening and closing statements of counsel at the trial were not recorded, were not a part of the official transcript and are therefore unavailable to me. Since I do not remember these statements after more than thirty years, I have taken the liberty of writing the statements as I would have made them if I had been the prosecutor and defense counsel. I hope that I have done them justice. Since I was not privy to the jury deliberations, I have stated them as reported to me by two surviving jurors and the widow of the foreman. The story portrays actual characters and facts. The trial testimony and exhibits are taken from the official Indiana Supreme Court 1400 page transcript.* I have changed the names of the victims and non police witnesses to protect their privacy.

* Detective Laurence Phillips, the crime scene reconstruction specialist who testified for the prosecution, is a figment of my imagination. I used his testimony to summarize some of the evidence and possible inferences. Most of his testimony, based upon proper objection, would have been inadmissible. An expert witness can only testify as to matters which an untrained layman juror would be unqualified to determine without enlightenment from an expert.

In my mind there were two troublesome questions remaining after the trial.

One was the twelve year imprisonment sentence that Roberts received for the 1966 Crown Point armed robbery of $1.50 in 1966. This seems excessive for a first offense. However, this sentence was the result of a plea bargain agreed to by Roberts. Why would Roberts agree to such a sentence? Roberts explained the events to his Admissions Officer at Pendleton Reformatory as follows: “At the time of my crime, I was by myself. I saw three ladies in a car, and approached them and told them: this is a stick-up. I took $40.00 and fled. I was apprehended six blocks from the scene of the crime by the police.” My recent search of the Lake County Superior Court records reveals a different story. There were actually five felony charges filed on March 15, 1966, against Roberts (involving two white women and a white man) including the original charge of Robbery ($1.50) from Mildred Wiscolik, which was changed by Amended Affidavit to Armed Robbery ($1.50) and to which Roberts plead guilty; Inflicting Injury (striking, beating and wounding) Upon Mildred Wiscolik in the Perpetration of an Attempted Rape; Robbery of a ring ($300.00) and cash ($52.00) from Richard Lenoski; Kidnapping (forcibly kidnap, imprison and carry off) of Lynette Harnish; and Rape (forcibly ravish and carnally know) of Lynette Harnish. As a result of the plea bargain, the four additional charges were continued and Roberts plead guilty to an Amended Affidavit charging only armed robbery of $1.50. Because of the severity of Roberts’ alleged actions and the possible total sentence on all five charges, the agreed to twelve year sentence seems reasonable. Roberts’ attorney at that time, Max Cohen, recently stated to me that he thought that

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the sentence was fair and that Judge John McKenna usually set the terms of any plea agreement. The four additional charges were never tried and were dismissed on October 27, 1976 upon motion of the Lake County prosecuting attorney by virtue of the Steuben County and Marion County five life sentences. The Steuben County Roberts’ jury was not aware of the Lake County four additional original charges during their deliberations.

The second question was the possible involvement of Douglas Milford who may have been seen driving near the Harold house the morning of the fire. Lieutenant John Lasiter, the Johnson County Deputy Sheriff who was a primary investigating officer, stated to me recently that the New Whiteland volunteer fireman who, according to his testimony, picked out the photograph of Douglas Milford as the “probable” driver of the large brown car the morning of the fire, was not certain at all of the identification. The fireman stated to Lieutenant Lasiter that of the six photos, the one of Milford most nearly resembled the driver. The fireman had little exposure to African-Americans. There were no African-Americans living or working in the area and unless a person worked with African-Americans routinely in Indianapolis or had other regular exposure to African-Americans (which he did not) he could not have identified a specific African-American with any degree of certainty. This is why Lieutenant Lasiter and Charles Gantz did not consider Milford as a suspect. It very well could have been Roberts checking to see the extent of the fire and if any evidence left behind was destroyed. Lieutenant Lasiter also stated that he drove Roberts back and forth between Angola and Indianapolis during the trial. From the statements made by Roberts on these trips, Lasiter believed that Roberts was convinced that the white officers and prosecutors were out to get him and that he hated all whites. All of his victims had been white.

When I taught law at Tri-State University, I used the Roberts case as the framework to teach criminal and constitutional law and procedure. The Roberts case was an excellent introduction to important procedural and substantive aspects of criminal law. It allowed me to illustrate how the United States Constitution is applied to an actual criminal case. The printed words of criminal statutes and the Constitution were brought to life. Words and phrases such as grand jury, murder, voluntary manslaughter, involuntary manslaughter, burglary, arson, arraignment, omnibus hearing, voir dire, jury instructions, death sentence, lesser included offenses, jury nullification, appeal, cruel and unusual punishments, Fourteenth Amendment and substantive due process became the fabric of a modern criminal trial. They were no longer abstract theories or rights.

A primary question raised by the above events, assuming the jury verdict was correct, is how could Roberts commit such heinous acts? His childhood seemed normal. He had loving and caring parents. There was no neglect or abuse. He was educated and above average in intelligence. Is there sometimes a defect in a person’s genome which alone results in compulsive criminal behavior without regard to the harm to others? We are told that we were created by a

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loving God for a purpose. Why was David James Roberts created? Why were William, Elizabeth and Jenny Harold murdered?

If you have not already done so, there are two classic books that you should read which are

examples of murder without conscience: The Bad Seed by William March, an excellent

fictional story of Rhoda Penmark, age eight, and the “nonfiction novel” In Cold Blood by Truman Capote, a beautifully written true account of Dick Hickock and Perry Smith.

Finally, my sincere wish is that the telling of the Harold tragedy will contribute to a better understanding of our judicial process and of the Constitution, and, most of all, thereby give some meaning to the tragic deaths of William, Elizabeth and Jenny Harold.

John R. Berger

Angola, Indiana

January 1, 2014

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JOHN R BERGER

January 1, 2014

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BIBLIOGRAPHY

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803)

Dred Scott v. Sandford, 60 U.S. 393, 19 How 393 (1857)

Buck v. Bell, 274 U.S. 200 (1927)

Mapp v. Ohio, 367 U.S. 643 (1961)

Gideon v. Wainwright, 372 U.S. 335 (1963)

Miranda v. Arizona, 384 U.S. 436 (1966)

Furman v. Georgia, 408 U.S. 238 (1972)

Woodson v. North Carolina, 428 U.S. 280 (1976)

French v. State of Indiana, 362 N.E. 2d 834 (1977)

Stump v. Sparkman, 435 U.S. 349 (1978)

Roberts v. State of Indiana, 375 N. E. 2d 215 (1978)

NOTE: Landmark United States Supreme Court cases can be found at:

http://en.wikipedia.org/wiki/Landmark_decisions_in_the_United_States

Examples of court citations: The first number is the volume number and the second the page.

Indiana Supreme Court: 303 IN 42, 12 NE2d 206

Indiana Court of Appeals: 102 Ind. App. 46, 33 NE2d 118

US Supreme Court: 1 Cranch 137 (early reports), 427 U.S. 11, 128 S. Ct. 278

US Circuit Court of Appeals: 121 F. (or F.2d) 11

US District Court: 311 F. Supp. 121

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NOTES

1. The naming of Indiana and the XI Amendment: The area compromising the present state of Indiana was part of the Northwest Territory created by Congress in 1787. It was called Indiana Territory and was the area left after the Ohio Territory (1800), Michigan Territory (1805) and Illinois Territory (1809) were carved out. Indiana became a state in 1816 and included all of the area left of the original Indiana Territory. The name Indiana was borrowed by Congress and came from the name of about two million acres of land called Indiana (land of the Indians) in western Virginia Colony claimed by the Indiana Company by virtue of a 1768 deed from the Six Nations of the Iroquois. The name of this area was abandoned and available to Congress after 1798 when Virginia successfully asserted ownership of this area as Augusta County and the Indiana Company went out of existence. The Indiana Company had filed suit (a Bill in Equity) in the United States Supreme Court in 1792 against Virginia requesting the Supreme Court to issue an order to Virginia to cease interfering with the Indiana Company title. Virginia ignored all subpoenas issued by Chief Justice John Jay to appear before the Supreme Court. The subpoenas were titled, “The President of the United States to Henry Lee, Esquire, Governor of the Commonwealth of Virginia.” Virginia successfully delayed the case until passage in 1798 of the XI Amendment which forbad such suits against a state. By virtue of this amendment, the suit was dismissed by the Supreme Court in 1798. See The Naming of Indiana at www.in.gov/history/2805.htm for the complete story.

2. Angola had the dubious distinction of being the “Midwest Marriage Capitol” until about 1960. Indiana at that time did not require any residency or waiting period in order to be married. All adjoining states had strict waiting period requirements and Angola, being five miles from Michigan and Ohio, was a natural for couples who could not wait to be married (for a variety of reasons). The marriage procedure took about two hours and was outlined in a handy flyer available at the Circuit Court Clerk’s Office. First a couple was advised to go to one of the two friendly competing hospital labs (Elmhurst Hospital and Cameron Hospital) and have their blood tests taken for syphilis as required by Indiana law. If either tested positive, the couple was out of luck. Other venereal diseases were inexplicably not tested. The next step was to wait for one hour, preferably at Ollie Bassett’s restaurant (upstairs dining room and counter or newly remodeled basement bar) until the lab tests were reported to the clerk. Katherine Hepburn and her dog had eaten lunch at Bassett’s in 1941. There was a framed photo of her and her dog hanging on the wall.

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After the hour, the couple would go to the clerk’s office and apply for the marriage license. On a usual Saturday, there would be a line of happy couples and friends stretching from the clerk’s office, out the courthouse door, around the corner First National Bank and to the Post Office one block away. Many of the brides-to-be waiting in line, some obviously pregnant, wore complete long wedding gowns with veils. Many men wore tuxedos. Once the couple had completed the marriage application questionnaire for the clerk (Are either of you now married? Do either of you have any children? Are either of you insane?) the clerk would offer the couple a choice between the standard Indiana marriage license poorly printed on cheap thin paper or the deluxe version with faux leather cover and a genuine facsimile gold Indiana Seal for only twenty-five dollars more. The clerk was allowed to pocket the twenty-five dollars. Naturally the husband-to-be would choose the deluxe version to impress his beloved. Naturally, the clerk’s position was highly contested at election time. The next step was to find a justice of the peace or minister to marry the happy couple. All were conveniently located within a block of the court house. There were two justices of the peace, Con Smith and Harvey Shoup. Both had their wives available as official witnesses to the marriage ceremony. Both were adept at performing a meaningful but hasty ceremony with many quotations from the bible and other learned sources. After the ceremony, the justice signed the marriage certificate and bid farewell to the newlyweds. Both justices were amenable to accepting gratuities (the flyer suggested fifty dollars). The justice of the peace elections were also highly contested. If the couple wished to have the marriage performed by a minister, a small garden wedding chapel with flowers and an organist was available only one and a half blocks from the courthouse according to the map drawn on the flyer (suggested price including all services and gratuity-$100.00). The nearby motels were filled with newlyweds. I think about half of the citizens of northern Ohio and southern Michigan had been married in Angola.

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There were no mixed race couples waiting in line to be married. Indiana law from 1840 until 1965 made miscegenation a crime and provided that sexual intercourse or marriage between whites and blacks could be punished by a fine not to exceed $5,000.00 and imprisonment not to exceed twenty years. Blacks were defined as having one-eight or more Negro blood. In addition to the Clerk of Court and Justice of the Peace positions, there was one other position which was highly sought after. This was Sheriff of Steuben County during the Prohibition era (1919-1933). One of the main routes for the transportation of liquor was from Canada to Detroit, then south to Ohio near Edon, then westward along what is now U.S. 20 through Steuben County and Angola, and then continuing westward to Chicago and Al Capone and associates. It was reported that bootleggers were often met in Steuben County at the Indiana-Ohio line by the Steuben County Sheriff who was collecting donations to the police benevolent society. It was an early version of the Indiana Toll Road. According to a 1930 article in the Steuben Republican, the local newspaper: “By virtue of the Prohibition law (the 1919 Volstead Act) Steuben County has recently suffered several black eyes. The federal government charged that Steuben County Sheriff Charles Zimmerman aided bootleggers in transporting liquor through the county. Charles Zimmerman faced three separate criminal law suits in federal court in Fort Wayne, two for violating the Prohibition law and one for murder of a witness. Zimmerman was also said to have been paid protection money by a Steuben County resident who sold and manufactured liquor in Steuben County. In one example dated 1927, Zimmerman allegedly transported twenty cases of whisky from the Powers School, which is just west of the Ohio line, to Angola. To keep his illegal activity flowing, Zimmerman allegedly paid protection money to a federal prohibition officer through an Angola attorney. Zimmerman obtained dubious acquittals on all three charges. In one case a witness changed his story and refused to finger the sheriff. In another case, the government’s witness, the officer to whom Zimmerman allegedly paid bribes, disappeared just prior to trial.” Zimmerman was vigorously defended by a powerful and expensive defense team. Among the attorneys representing Zimmerman were Angola attorneys Alphonso C. Wood, soon to become an Indiana Appellate Judge (1931-1938), his son, Theodore Wood, later to become President of Tri-State University, and Dudley Gleason, Sr. of the firm of Gleason & Gleason. 3. I was only threatened twice. The first time was during the Roberts’ case. The second was after I had left the bench. Having courthouse security would not have saved me from either threat. In the later threat, I received a call from a Michigan probation officer after he had completed an “exit interview.” He had just had a conversation with a convict named Clark who was about to be released after five years in a Michigan prison for arson. I had sentenced Clark to jail in Indiana for arson about ten years before for burning down a cottage at Hamilton Lake. The officer had asked the convict what he intended to do after release, expecting an answer concerning where he would live and work. Clark replied, “Well, the first thing I am going to do is go back to Angola and burn Judge Berger’s house down and I hope he is in it.” I thanked the officer for this information and wondered what I could do about it. The next day I received information from our local police that Clark had indeed burned a house down early that morning but that the house was in Ashley, a town about fifteen miles away. I guess I was lucky and someone else was higher on Clark’s “To Do” list. 4. Cincinnati was known as the “Queen City of the West” by virtue of being the early commercial metropolis of the Ohio Valley. I grew up in Cincinnati but the main attraction to me as a seventeen year old was across the Ohio River in the city of Newport, Kentucky, and the

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Tropicana nightclub. During the Civil War and for the next hundred years Newport in Campbell County was known as “The Sin City of the South” with rampant prostitution, gambling and national-crime-syndicate operations. The story of Newport, and of the Notre Dame, New York Yanks and Cleveland Browns quarterback hero, George Ratterman, who ran as the reform candidate for sheriff of Campbell County in 1961, is dramatically set forth in The Great Kentucky Scandal, an October 24, 1961 article by Bill Davidson in Look Magazine. The story starts with police entering a motel room at the Glenn Hotel (connected to the Tropicana) and finding Ratterman allegedly clad only with a shirt and socks in bed with a long-legged strip-teaser named “April Flowers” dressed in a slave robe with leopard-skin design with her bosom showing. The state court trial of Ratterman for soliciting prostitution came to a sudden end when the prosecutor dismissed the charges after hearing evidence that Ratterman may have been drugged. The story ends just before a newly appointed United States Attorney General Bobby Kennedy sends a young federal prosecuting attorney, Ronald Goldfarb, from Washington to Newport to try and obtain federal indictments against the participants in Ratterman’s false arrest and an attorney, Charles E. Lester, who is mentioned in the Look article and had represented some of the defendants in prior state charges arising out of the events of that fateful night. See www.nkyviews.com/campbell/text/txt_newport_look.htm for the full article.

1961 SHERIFF CANDIDATE 1950 NEW YORK YANKSGEORGE RATTERMAN

My research indicates the following later events. At the insistence of thirty-four year old newly appointed U.S. Attorney General Robert Kennedy, the brother of President Jack Kennedy, a federal indictment was obtained and filed in federal court in October of 1961against Charles E. Lester, a well known and respected criminal defense attorney; Edward “Marty” Buccieri, the owner of the Tropicana and Glenn Hotel; Tito Carinci, the manager of the Tropicana; and three police officers, Quitter, White and Ciafardini. Robert Kennedy would preside over a Justice Department with over thirty thousand people. He had limited legal experience and had never been in a courtroom. The charges were misdemeanor conspiracy to violate the civil rights of George Ratterman. They were charged with having “a common agreement to discredit Ratterman by falsely arresting and charging him.” The government was represented by lead attorney twenty-nine year old Ronald Goldfarb, two assisting attorneys and a special FBI consultant, Frank Staab, who was convinced that Lester was behind much of the legal arrangements shielding illegal operations in Newport. Staab had made an exhaustive investigation throughout the United States and had held

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over five hundred interviews in an attempt to uncover evidence against these defendants and others. Robert Kennedy wanted to charge the defendants with kidnapping across state lines but was unsuccessful in obtaining any evidence thereof. Goldfarb and his legal assistants were assigned to the case by Robert Kennedy. They were special prosecutors in the Justice Department’s Organized Crime and Racketeering Section. They were sent from Washington to prosecute these misdemeanor charges. Goldfarb was all excited. This was his big chance to make a name for himself prosecuting “mobsters.” A federal jury trial was held and the jury could not agree on a verdict. Even though a retrial of a misdemeanor charge is rare and very expensive, the federal prosecutor, Ronald Goldfarb, with extreme pressure from Robert Kennedy, presented the case again to a new jury. In August of 1963, the second jury convicted Lester and Buccieri of conspiring with the police to have the police arrest an innocent Ratterman. The jury decided however that Carinci was not guilty of conspiracy and that the police, Quitter, White and Ciafardini, did not knowingly falsely arrest and charge Ratterman and were found not guilty! The only evidence against Lester, as set forth in the above Look article, was that he had asked photographer Thomas Withrow to contact Buccieri about taking some photographs. Whose photographs, where and when was not discussed by Lester. The photographs were never taken. Lester explained in his testimony that it was his understanding that Withrow would be hired to take photographs of patrons at the Tropicana nightclub, not of Ratterman in the Glenn Hotel room. Lester and Buccieri were sentenced by federal district court Judge Swinford to twelve months in federal prison, the maximum allowed by law. Such a severe penalty was almost unheard of. Lester was 61 years old and had no prior felony charges. The defendants Buccieri and Lester appealed to the federal Sixth Circuit Court of Appeals. The defendants argued, “If police officers were not guilty and did not conspire with defendants, how could defendants conspire with the police officers?” The prosecution realized that there was a serious potential of reversible error and hoped that in the appellate judges’ deliberation there might be a subconscious undertow toward upholding convictions to assure that everyone involved would not go free. They hoped the appellate judges, who did not agree with the jury’s not guilty decisions as to the police officers, would unwittingly nullify the pure law to arrive at a “just” decision upholding the guilty verdict for Buccieri and Lester.

The “subconscious undertow” perhaps won out. The appellate court sustained the conviction by a split decision-two to one. The majority stated that Lester and Buccieri could be found guilty of conspiring with innocent police officers to commit a crime which was never committed! The United States Supreme Court declined to review the case.

Buccieri was granted an early release on parole but Lester was not granted early release. He was first held in a minimum security federal prison in Alabama. When Robert Kennedy heard of this he prevailed upon the justice department to have Lester transferred to a maximum security federal prison in southern Illinois which primarily held rapists and murderers. While there, Lester lost over forty pounds. Upon his release he slowly recovered his physical health but until his death still carried psychological scars.

At the instigation of Robert Kennedy, the Internal Revenue Service with the assistance of the FBI extensively pursued Lester in an attempt to prove income tax evasion. They were unsuccessful.

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In spite of all the time, money and energy spent by Robert Kennedy’s Justice Department to clean out the “organized crime and mobsters” in Campbell County, these two misdemeanor convictions were the only ones obtained. Kennedy’s frustration was taken out on attorney Lester and Buccieri. The true mobsters just moved on.

Ronald Goldfarb is a well known and respected Washington, D.C. attorney, speaker, author and literary agent. Juanita Hodges a/k/a “April Flowers” continued her dancing first in Louisville, then in Alabama, and later in Port Huron, Michigan. George Ratterman served four years as sheriff. After that he was a color commentator for radio and television. On occasion he was a financial advisor. He never practiced law. He died in November of 2007 at the age of eighty of complications from Alzheimer’s disease. Bruce Lester, the son of Charles Lester, became a respected judge of the Kentucky Appellate Court for over twenty years and retired recently as Chief Judge. Two years after the Lester decision, Robert Kennedy was assassinated on June 6, 1968. Charles E. Lester was my mother’s brother, my favorite Uncle Charlie.

5. The Korean War was the “forgotten war” and most civilians went about their lives oblivious to the fact that thousands of American young men were giving their lives for our country. It was not even called a “war.” It was called a “conflict.” I had a good friend in college who had remained in the Army reserve after active service in WW II. He was just completing his senior year at college when he received notice in May, 1950, to report for active duty in three days. He was killed six months later in North Korea just south of the Yalu River by soldiers of the invading Fifteenth Chinese Field Army. He was twenty-four. He was one of the thirty-three thousand six hundred and eighty-six soldiers who gave their lives “to stop the spread of communism.”

6. In May of my last year at Harvard Law I applied for a direct commission as First Lieutenant in the newly established contract procurement department of the Air Force located at Wright Patterson Air Force Base in Ohio. Two other classmates and I were asked to come to the Pentagon for interviews with the Secretary of the Air Force. We arrived by air the evening before and I will always remember circling over Washington and seeing the lights of the beautiful buildings and monuments of Washington. The Pentagon and Secretary’s chambers were very impressive-especially to a small town boy. During the interview the Secretary asked us what our class standings were. The first to respond was a classmate who was the president of the Harvard Law Review (like President Barack Obama) who stated that he was first in our class. Next my other classmate stated that he was third in our class. The Secretary turned to me and asked, “Mr. Berger, what was your standing?” With some trepidation I answered that I was one thirty-sixth! I felt somewhat embarrassed. We all were accepted into the program (I was swept in on my classmates’ coattails). I was excited and looked forward to three years serving my country during the Korean War in Ohio. I received a brief note from the Air Force in July that the program had been abandoned (together with my commission).

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Determined to be an officer, I then applied to the United States Coast Guard. I had always enjoyed boats and the water. They sent me to Cleveland for a physical and four hour written examination. I was accepted and ordered to appear on December 1, 1953, at the Coast Guard Academy in New London, Connecticut to be sworn in as an Ensign to begin my training. There was one condition-I had to be released from my draft board in Cincinnati (Laura Wingerberg, Clerk). I am glad that I did not waste money on purchasing several Coast Guard uniforms.

7. The requirements to practice law in Indiana have an interesting history. Most lawyers after the Revolution had a difficult time being allowed to practice law. The people rejected them as being instruments of and supporters of the English common law, and of not being loyal supporters of the Revolution. Most had been Tories. All things thought to be English were rejected. As a result, most states passed laws denying the right to practice law unless loyalty was proven. New York State passed a typical law which required a jury to find that an applicant to practice law had been “a good and zealous friend to the American cause” before being licensed. By 1850 the prejudice against lawyers had diminished. However, the Jacksonian theory of the egalitarian rights of the common man was becoming preeminent and it was thought that every man had a natural right to practice any lawful calling he chose. As a result of this philosophy, most states passed statutes or had constitutional provisions that did not require a license or any other particular requirements or qualifications to practice law except being of good moral character. One early Indiana statute added an additional requirement-the applicant had to take an oath that he had not participated in any part of a dual since January 1, 1819. The Indiana Constitution of 1851 in Article VII, Sec. 21, stated, “Every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice.” Therefore, basically the only requirements to practice law were to be a voter of “good moral character”, which, as one whit put it, was the one qualification most practitioners plainly lacked. However, egalitarianism only went so far in 1851. The same 1851 Constitution denied women and Negroes the right to vote. Since women could not vote until 1921 and Negroes not until 1881, were they entitled to practice law before then? As early as 1893, a courageous white lady named Antoinette Dakin Leach applied to the Greene Circuit Court for admission to the bar. The circuit court judge found that she was a citizen of Indiana, over the age of twenty-one, of good moral character, and possessed sufficient knowledge of the law to qualify her to practice. However, the circuit judge denied admission as she was not a voter as the Indiana Constitution required. On appeal, the Indiana Supreme Court determined that the Constitution did indeed secure the right of a voter to be admitted to practice, but it did not affirmatively state that others (non voters) could not also have this right. Therefore, the Court ruled Antoinette should be admitted to the practice of law. I wonder if the justices in arriving at their decision had received advice from their wives similar to that given by Abigail Adams to her husband John in 1776 when he was on his way to the Constitutional Convention to “remember the ladies and be more generous and favorable to them than your ancestors” when fashioning laws for the new nation. Sixty-three years later when I first started to practice law in 1956, there was only one woman attorney admitted to practice law in northeast Indiana. Now about half of law school students are women. Pursuant to this 1851 Constitutional provision, attorneys were usually admitted to the bar by the local Circuit Court judge. There was no requirement of any law school, other formal education, law studies or experience. Many obtained their legal training by “reading law” in the

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law office of an established attorney. They were basically self taught. It was not until 1932 that the Indiana Constitution was amended to repeal the provision that any voter of good moral character could practice law. After 1932, Indiana by statute or Supreme Court Rule gradually set forth requirements to practice law. Ultimately, graduation from an accredited law school and successful completion of the bar examination would be required. These laws and rules allowed all those persons who were currently admitted to the bar to continue to practice under “grandfather clauses.” They became known as “Constitutional lawyers.” For a very interesting discussion of these issues and many more see The History of Indiana Law, 2006, Ohio University Press.

8. On a dark and wet December 14, 1953, morning at 5 a.m., I boarded a bus in Angola with ten other draftees, all from local farm families, destination Indianapolis. Upon arrival we, together with forty other draftees, were told to strip and get in line to be examined by a doctor. The doctors determined that we were all physically fit even though I kept reminding the doctors that I had rheumatic fever as a child. We then were told to stand in a straight line facing an Army Lieutenant and to raise our right hands. We did so and took our oath to protect and defend. We were told to take one step forward and by doing so became a part of the United States Army. I was issued my official identification “dog tags” which had impressed thereon “John R. Berger US 55448329 Blood: A Religion: C.” The “US” in my serial number differentiated me from those who had voluntarily enlisted. The enlistees were “RA” and considered to be a different breed. It is hard to describe my emotions upon taking the oath and being a member of the Army. I do remember being very proud to serve my country and to begin such service as a private equally with my fellow draftees from all walks of life. I was always very proud to wear my Army uniform even though during the Korean Conflict some civilians looked down upon me as a serviceman.

9. On my arrival at Fort Leonard Wood at 1 a.m. dressed in a gray tweed suit and striped tie, I was told to report immediately to the mess hall for KP duty. My first military duties consisted of mopping the floors and washing dishes, pots and pans until 3 p.m. I then reported to my assigned barracks and was issued bedding, a trunk to be placed at the foot of my bunk, an M1 rifle, and basic toiletries which included a blade razor (I had only used an electric shaver before). My only experience with a rifle was as an eight year old. I had a Red Ryder BB gun and shot a starling. The bird tumbled to the ground and flopped around. Apparently I had broken his wing. Immediately I felt terrible and tried to nurse him back to good health. With my gentle care he lasted three days. I buried him with a headstone marked “Sam”. This was the last and only time that I shot a rifle without cause. Exhausted and dirty, in my gray tweed suit, my service to my country began. I was issued a uniform three days later. In the fourth week of basic training I was called in from the machine gun range for an interview pursuant to my previous application to the Army Judge Advocate’s Office (the law branch of the Army). In my dirty uniform and with four hours sleep I was grilled on the intricacies of law by a panel of one Captain and two First Lieutenants. I distinctly remember one question. I was asked to explain in detail the “hearsay rule” and as many of the exceptions thereto as I could recall (there are thirty). This is probably one of the most difficult legal

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principals. The “hearsay rule” is an evidentiary trial rule on the admissibility of certain testimony. The rule can be simply stated as, “A witness can not testify as to what he heard another person say in order to prove the truth of the facts stated by such person.” Somehow I stumbled through the interview. I did not hear anything concerning my application until about twenty-two months later when I was called in before my commanding officer. He explained to me that I had passed the examination and had been recommended for acceptance into the Judge Advocate’s Office. However, the examining board had been improperly constituted. The board should have had two Captains instead of the one at the board examination. Therefore I would have to be examined again. He assured me that I would undoubtedly pass the next examination and be appointed a First Lieutenant. I would have to serve three more years of active duty in the Army. Since I was due to be discharged in two months, I respectfully withdrew my application.

10. I remember clearly my first civil and criminal cases. Both were before the Steuben Circuit Court judge, the Honorable Harris Hubbard. Both cases made clear to me the difficulties I would have trying to establish a law practice in the Steuben County legal environment. In my first civil case I represented a foreign (Chicago) supplier of minnows who had sold the minnows to a local (a Steuben County voter) bait store. The bait store refused to pay for the minnows claiming that the minnows had died of some mysterious disease about one week after delivery. I obtained an expert in minnow diseases who testified that the minnows were not diseased when delivered but were contaminated by the condition of the bait store minnow tanks. There was no other evidence as to the cause of the disease. At the conclusion of the evidence, Judge Hubbard announced his decision (the case was heard by the court rather than by a jury). He stated that the evidence clearly showed that the minnows were in perfect condition when they were delivered. I was in seventh heaven. I was about to win my first case and could represent to prospective clients that I had never lost a case. The judge then said, “However.” I knew that these words were the death knell. The judge then stated that since the delivery of the minnows had been on a Sunday, the sales contract was void and the bait store therefore did not have to pay for the minnows. The judge’s decision was erroneous, of course, as Indiana law has never declared Sunday contracts void. To appeal the decision to the Indiana Appellate Court would have cost about twenty times the value of the minnows! Case closed. The attorney for the bait store, the judge’s brother Kenny Hubbard, had won another one. In my first criminal case, I was appointed as pauper counsel for the defendant by Judge Hubbard. There were about eight other eligible attorneys but Judge Hubbard obviously thought that this case was just right for me as a young attorney trying to establish a law practice. As a new attorney I could hardly refuse such an appointment. The defendant, a recent resident of Mt. Clemens Michigan, who was just passing through Angola, was accused of kidnapping the daughter of a prominent Angola businessman on her way home from grade school. Thankfully, she was found alive a day later about fifty miles away. She identified the defendant as the person who had kidnapped her. By representing such a person this certainly was an excellent chance for me to become well thought of and accepted by the Angola community. Having taken my oath as an attorney to faithfully represent a client, and being young and naïve, I earnestly began my representation. I immediately requested a change of judge which by law had to be granted. This further endeared me to Judge Hubbard. My client stated that he had an iron clad alibi. He told me that at the time of the abduction he was living in Mt. Clemens and had in fact at that time been at the St. Francis Cemetery in Mt.

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Clemens placing flowers on the grave of his mother. He remembered that when visiting his mother’s grave that twin two day old boys were being interred. I took off for Mt. Clemens, about 100 miles to the northeast and just north of Detroit, in my parents’ 1952 Buick Road Master station wagon. The trip was uneventful except for the fact that since the Buick weighed about a ton and the brakes were woefully underpowered, it was very difficult to bring the car to a stop. Somehow I made it. My first stop was at the address the defendant gave me for the place where he stayed. The defendant was sure some other resident would remember him being there on the day of the abduction. It was difficult to find the address. It was in what appeared to be a slum area. I was somewhat hesitant to enter the building at the address. My sociology professor at Hillsdale College had written a book (required purchase) about his experiences at the Bowery in Brooklyn which he entitled Flophouse. I was now truly entering a flophouse. The building was three stories. There was a small office on the first floor. The rest of the building contained single rooms. There was filth and refuse everywhere. I found only three persons. One was sitting in a stairwell and obviously drunk. He was unable to communicate with me. I saw another person on the third floor through an open door lying naked on a stained mattress, apparently asleep or passed out. I did not disturb him. The third was the “manager” who was preparing some soup in a makeshift kitchen. He had no recollection of the defendant. He did give me the direction to St. Francis Cemetery. I was able to find the cemetery and the Rectory of the adjoining church. I located the Sextant and he was able to examine the Record of Burials. He said that he remembered the twin boys’ burials. He examined the records and they showed that the burials had been one day before the abduction in Angola. That was the end of the alibi! Upon return to Angola I met with the prosecuting attorney to see if a plea bargain could be agreed upon. Both of us wanted to avoid a trial in which the little girl would have to testify. I told the defendant that I was trying to negotiate a plea bargain. The next day the defendant sent a demand from the jail to the judge written on a paper hand towel that the judge remove me from representing him. The defendant stated that, “I had spilled my guts to the prosecutor.” The judge, to my great relief, replaced me as the attorney for the defendant. The defendant subsequently did enter a plea of guilty pursuant to a plea agreement.

11. There is a sad sidebar to my defeat of Judge Sisler which connected causally to three murders. If Judge Sisler had been elected, none of the following would have happened. After his loss of the judgeship, with the assistance of his father in law, Judge Sisler obtained a job in Washington, D.C., as a lobbyist for the National Rifle Association. About a year after arriving in Washington, he was confronted at his front door one evening by an armed angry black man who stated that his sister had been raped by a middle aged white man and that the man reportedly lived in Sisler’s house. An argument ensued and Judge Sisler was fatally shot. A police investigation followed, the man was arrested and subsequently found guilty of Voluntary Manslaughter. The chief investigating officer was Bobby Moore. Later Bobby Moore and Barbara Sisler, Judge Sisler’s widow, were married and took up residence in the Town of Fremont in the northeast corner of Steuben County. Bobby became the Town Marshall. About a year later, while Barbara Sisler Moore was on the phone talking with her daughter, Barbara stated that she had to leave the phone for a minute because her husband Bobby needed

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to talk to her. Her daughter overheard an apparent argument between Barbara and Bobby and then gunshots. When the police arrived at the Moore home they found Barbara dead. Bobby stated to police that there had been an argument, that Barbara had threatened to kill him with a gun, and that he fired at her in self defense. Bobby Moore was never charged with the death of his wife. About a month after the death of Barbara Moore, on a warm July 1988 evening just before sun down, Bobby Moore was shot in the head by a high powered rifle discharged from some distance away. He died minutes later. Barbara’s son, Sam Sisler, reportedly was an initial suspect but no evidence was ever found to connect him to the murder. No charges were ever filed.

12. The matters presented to a Circuit Court judge are varied and challenging. The matters presenting the most difficult choices to me were child custody in divorce cases, disposition of juvenile matters, and sentencing in criminal cases. All divorce and juvenile matters are presented to a judge for decision. A jury is not allowed. DIVORCE: When I was judge, in Indiana a person could obtain a divorce if there are “irreconcilable differences.” This is quite different from the traditional divorce requirements of proof of adultery or incurable insanity. Note: Indiana law now allows no fault consent divorces. These strict rules gave rise to the hiring of private investigators who would attempt to take a photograph of the erring partner “in flagrante delicto.” Also, what is “incurable insanity” and how do you prove it? Therefore then in Indiana, a person could always obtain a divorce by testifying, “My wife and I disagree on almost everything and there is no chance that we can get back together again.” Unlike most other states, Indiana does not provide for alimony (support payments) to a husband or wife unless he or she is severely mentally or physically disabled. This does not provide much protection to the wife who drops out of school, gets a job to help her husband through medical school, has three children while her husband is building his practice, and is then divorced by her husband “for irreconcilable differences.” She is left to rear the children while her husband marries his nurse and lives happily ever after. She will have to support herself with only a high school education! The Indiana divorce statute was amended when I was judge. The Indiana legislature in their infinite wisdom thought that it was deleterious to use the term “divorce” and amended the law to provide that thereafter the term would be “dissolution of marriage.” Therefore after the amendment it was improper for a wife to say to her husband, “If you hit me one more time I’m gunna stick your ass in jail, take the kids and divorce you.” The proper comment would be, “Honey, if you cannot conform your actions to accepted standards, I might have to seek incarceration for you and file a Petition for Dissolution of Marriage.” Presiding over divorce cases was an eye opener for me. I guess I had led a sheltered life. I had parents that loved each other who never raised their voices in anger and a wife who was all things wondrous. It was difficult for me to listen to testimony from people who had been in love and had promised “to love and honor until death do us part” tear each other apart in the hope of obtaining a larger property settlement. Usually custody was an afterthought. The mother traditionally obtained custody of young children. Occasionally both the husband and wife would seek a divorce. Each party wanted bragging rights. “The Judge gave me the divorce because of the way my husband (wife) treated me.”

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In one divorce case which stands out in my memory, a childless couple in their 60s both wanted a divorce but they could not agree on who would get the Cadillac and some wedding presents they had received five years before. The husband was represented by Dudley Gleason, Jr. of the firm of Gleason & Gleason (father and son), a sixty two year old constitutional lawyer who seemed to always quote the bible when making any statement to a judge or jury. He was about five feet tall, robust and had a deep resonant voice. It was almost like hearing God speak. The only issue at the trial was the division of their property. I was therefore somewhat surprised when Dudley offered into evidence on behalf of the husband, without objection of opposing counsel, seven photographs of the wife in a Holiday Inn motel room in Florida which were taken on a recent vacation. The photographs were taken by the husband and showed his wife completely nude in various poses. I asked Dudley the relevancy of the photographs and he stated, “Your Honor, any woman who would allow herself to be photographed naked is immoral, is condemned before the eyes of God, and should not be allowed to share in my client’s worldly goods.” I was preoccupied with the pictures which showed a rather plump old woman with large sagging breasts. I could not imagine anyone that old cavorting sexually around a hotel room. Remember, I was in my early 40s. I have since changed my mind. A divorce case was never really over until the youngest child reached eighteen. The parties seemed to always be coming back to court to revise the amount of child support (“My husband got a new job and he is making more now” or “He is spending a ton of money on that fat girl friend of his and her children”); to change visitation (“I do not want my daughter around that whore he is living with”); custody (“I just can’t handle Joshua anymore. He is out of control and smokes pot. It’s his father’s turn”); and to request that the husband be put in jail for non support or failure to abide by a visitation order (“He makes a ton of money but spends it all on booze, punch cards and girlfriends and has not paid support for four months” or “I have the kids ready for visitation every other Sunday at 2 p.m. but he rarely shows up to pick them up and even if he does, he returns them dirty and late every time”). Miracles do happen though. Often I had a father testify in a non support case that he really wanted to catch up on his back support (usually several thousand dollars) and help his six children, but even though he had a good job, he had no money available. About the second day of serving an indeterminate jail sentence for contempt of court, the husband would somehow come up with the money and pay the entire back support-a miracle!

JUVENILE: Juvenile court was a heartbreaker. Anyone up to eighteen was considered a juvenile in Indiana and there was a distinct body of law for them which was different from adult criminal law. The emphasis in juvenile law was help rather than punishment. A juvenile could not be originally charged with a criminal law violation. A juvenile was charged with “An act of delinquency, to wit: taking cash at gun point from the cash register at the Martin Gas Station.” The judge was to act as “parens patriae” or an enlightened father, understanding, fair, but firm. The judge was to exercise the conscience of the community. When I first started to practice law, a juvenile offender when caught was held in jail for a day or so and then brought before the judge. The prosecutor presented the facts and, after the juvenile made any statement he desired, the judge would immediately decide if the juvenile had committed the offense and if so, what should be done about it. Usually there were no witnesses other than a police officer. The juvenile was not represented by an attorney. His parents were allowed to be present and make a statement. When I became judge, the law had changed. The juvenile was always represented by an attorney (at county expense usually), the hearing was conducted like an adult criminal trial,

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and a final decision could not be made by the judge until the juvenile had been evaluated by the probation department or other experts deemed necessary. Most juvenile offenders were male. I had a few delinquent girls but their offenses were minor such as shoplifting or skipping school. If the offense was serious, such as armed robbery, the minor could be “waived” by the judge to adult criminal court and the prosecutor was instructed by the judge to file adult criminal charges against the juvenile. All proceedings thereafter including sentencing to prison were treated as if the juvenile were an adult. In juvenile matters I tried very hard to understand the cause of the delinquency and structure a proper response to help the juvenile. In some cases this might even entail a stay at the county jail. Many times the probation officer and I failed to help the juvenile. Sad to say, even at fourteen or fifteen, it was often too late. In one juvenile case, I visited with the juvenile quietly in my chambers in an attempt to find the cause of his acts. He had broken into four cottages around Crooked Lake and stolen some electronics. He was seventeen, the son of a local professional and had supportive parents. I asked him why he had broken into the cottages and his sole explanation was, “Because it was easy.” Go figure. I gave up delving into juvenile psychiatry. In another juvenile case, I thought that I may have been successful in rehabilitation. Charlie was seventeen and had been involved in several burglaries about six months before. He had been reporting to the probation officer on a regular basis and on one of these visits to the probation officer, I talked with Charlie. I asked how he was doing and if there was anything I or the probation officer could do to help him. He stated that he was doing real well, had gone back to school and had a part time job. He wanted to thank us for helping him. I remember that evening, while relaxing with a glass of wine (white zinfandel), telling my wife Susanna about Charlie and how pleased we were about his apparent success. In the early morning hours of the next day, Charlie was arrested in Michigan after blowing the door of a safe at a Sears. Under Michigan law he was an adult at seventeen and he was later found guilty and sentenced to eight years in prison.

CIVIL: Most of my civil suits involved automobile accidents. If the plaintiff could prove that the defendant was negligent (that the defendant drove the vehicle below the standard of care that a reasonable man would have exercised which was the proximate cause of damages to plaintiff’s vehicle or person), and that plaintiff was not negligent, the plaintiff was entitled to damages. Determining personal injury damages was difficult if pain and suffering were involved. Doctor and hospital bills and lost wages were usually easy to prove. But how much should a judge or jury award for the loss of an eye, both legs, brain damage, paralysis or pain? I have heard plaintiffs’ attorneys state to the jury to aid them in determining damages for pain, “How much money would you take per day constantly to have severe headaches every day (or not be able to walk) for the rest of your life? Just multiply that amount by the life expectancy of the plaintiff.”

I also presided over several civil cases against medical doctors for malpractice (medical negligence). Indiana had an interesting negligence evidentiary law which was only applicable to medical negligence. In order to prove medical negligence, the plaintiff must produce at least one licensed medical doctor as a witness who testifies that he or she is familiar with the accepted standard of medical care in the community and that the actions of the defendant doctor fell below this standard. Two cases were brought by the same attorney against the same doctor.

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The first malpractice case involved a claim by a married couple for damages for the birth of their ninth child. The first eight children joined as plaintiffs. The defendant doctor had performed a sterilization tubal ligation upon the wife after her eighth child was born. This procedure, as were all previous deliveries, was paid for by the County Welfare Department. About ten months later, the wife gave birth to a normal boy. The wife claimed damages for her pain and suffering in childbirth and for support for the ninth child until he was eighteen. The husband claimed damages for his loss of consortium (sex) with his wife during the pregnancy and for support for the ninth child until he was eighteen. The other eight children claimed damages in that there would be less money for their care and less love and affection for them since they would now have to share with a ninth child. The plaintiffs wanted the defendant doctor to support the ninth child until he was eighteen! The defendant denied all claims. He also claimed that there was no such negligence law in Indiana, and that the plaintiff wife should have had an abortion or placed the child for adoption if the child was not wanted. It was their duty to mitigate (lessen) damages. The plaintiffs stated that they wanted and loved the child. This type of action has become to be known as a “wrongful birth” action as contrasted with the traditional “wrongful death” negligence action. Whether this type of negligence action should be allowed as common law in Indiana had not been presented to any Indiana court. It was a case of first impression and I was being asked to establish a “wrongful birth” negligence action as part of the common law of Indiana. After extensive research I determined that only two states had ruled on this. Michigan had allowed such an action and Delaware had not. The Delaware Supreme Court thought that the benefits of having a healthy child far exceeded any damages and therefore, as a matter of law, since plaintiffs had no damages there could not be any recovery. The Michigan Supreme Court thought that a jury should be given the opportunity to decide if in fact the plaintiffs were damaged. In the Michigan case the defendant was a pharmacist who had mistakenly given the plaintiff wife sleeping pills instead of the prescribed birth control pills. I followed the Michigan rule and allowed the matter to proceed to trial. The plaintiffs had the required licensed doctor witness who testified not in person but by deposition. The doctor practiced general medicine in Wyoming but stated that he was well acquainted with the medical standards of Steuben County, Indiana, as to a proper tubal ligation since he was originally from Steuben County. He stated that in his opinion the defendant must have failed to properly perform the operation as a child was conceived. His deposition was read to the jury by the plaintiffs’ attorney who had a deep voice and looked like a doctor. The jury did not know that in fact the doctor had a high voice and was not impressive at all. The defendant had two imminently qualified tubal ligation specialists as witnesses. They had performed hundreds of such operations and testified that the procedure followed by the defendant was according to accepted medical practice. They further testified that even with a proper tubal ligation operation, sometimes nature would reconnect the cut tube and pregnancy could occur. The jury found that the defendant doctor had followed proper medical procedure and therefore no need for the jury to determine if there were any damages to plaintiffs.

The second malpractice case involved a couple in their late 50s. The plaintiffs were represented by the same attorney and the suit was against the same medical doctor. The doctor was alleged to have botched a vasectomy. The plaintiff husband claimed that after the operation he had developed two nodules on his penis and as a result he had experienced extreme pain when engaging in intercourse. This condition lasted for about three months and until the same doctor

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performed a minor procedure and removed the nodules. The husband could not claim damages for the expense of the operations as the County Welfare Department had paid for these. He did however claim damages for pain and suffering during intercourse for the three months. The wife joined as a plaintiff and claimed damages for diminished pleasure during intercourse because of the discomforting effect of the nodules. She further claimed that during intercourse her husband perspired a lot and would keep crying out, which indicated to her that her husband was in extreme pain. This considerably lessened her pleasure to her great damage. The plaintiff husband claimed ten thousand dollars as damages and the plaintiff wife claimed five thousand dollars as damages. The plaintiffs’ attorney on direct examination of the wife in order to attempt to prove the extent of damages elicited the fact that they had intercourse at least once a day. Upon cross examination the doctor’s attorney asked the wife, “Surely you did not have relations every day for ninety days?” She replied modestly, “Oh yes, we were so in love.” The jurors during all of the testimony about fell out of their chairs leaning forward to not miss a word of the testimony. I had a hard time keeping a judicial demeanor and thought to myself “fantastic.” The jury returned a verdict awarding damages of ten thousand dollars to the husband and five thousand dollars to the wife. If my calculations are correct, and assuming the number of assignations alleged are correct, this would amount to about $166.67 per pop (less 33% attorney fees). My thoughts of “fantastic” during the testimony of the wife came from one of my favorite jokes. It seems that two married ladies were discussing their past summer vacations. The first lady stated that her handsome, wonderful and generous husband had first taken her to Paris and bought her all of the latest French perfumes. The other lady replied “fantastic.” The first lady then stated that her husband had then taken her to Moscow and bought her a gorgeous full length Russian sable coat. The other lady again replied “fantastic.” The first lady then stated that her husband had then taken her to Rome and bought her many beautiful Italian leather shoes and handbags. The other lady again replied “fantastic.” The first lady then inquired of the second lady “And what did you do this summer?” The second lady answered that her husband had paid tuition for her to take a two week charm school course for ladies. “And what did you learn?” the first lady inquired. The second lady responded “I learned to say fantastic instead of bullshit.”

CRIMINAL: I presided over many criminal cases. One thing I surmised was that there must have been a special class at the police academy which would assist an officer in testifying concerning why he or she had searched a vehicle or arrested a driver for driving under the influence. When the prosecutor would ask a police witness at trial why the vehicle was searched or the defendant arrested, the reply was always, “I observed what appeared to be a green leafy plant like material (marihuana) protruding from under the front seat.” or “I observed what appeared to be the butt of a gun protruding from under the front seat.” or “The driver had blurry eyes, slurred speech, and there was a strong odor of alcohol.” The exact words were used in every trial! During my tenure as judge there were not many drug charges filed. They were mostly possession of a small amount of marihuana. Meth was unknown then. Not as now where almost every other old farm house (and quite a few automobiles) in northeast Indiana have active and profitable meth labs. It seems that about every week a farm house or car is blowing or burning up due to faulty recipes.

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Two drug cases involved more serious offenses. Both incidentally involved dogs. The first case was commenced by a request by the prosecutor that I issue a search warrant. The Fourth Amendment provides that no search warrant shall be issued unless there is presented to a judge an affidavit of probable cause to believe that the search will lead to the discovery of certain described evidence. The affidavit must be made by a person who is reputable who has direct knowledge of the facts. In this case the reputable person was a dog! The dog had been on regular patrol for the Postal Department at the San Diego, California, port and when sniffing a certain large package being mailed from Thailand to a person with an address of Jimmerson Lake, Angola, Indiana, indicated that the package had hashish (a high grade marihuana) inside. Usually a package would have had an outer layer of coffee beans to disguise the distinct odor. The Thai dealer must have gone cheap because there were no coffee beans. Even though the dog could not on his or her oath state the fact that the package contained a proscribed drug, I accepted the affidavit of the postal inspector that he believed the dog was reputable and had the necessary expertise. I issued the search warrant and upon delivery of the package to the Angola house by the rural mail carrier about ten staked out Deputy Sheriffs, after knocking on the front door and waiting for about ten seconds for a response, broke through the door. The officers were almost late. Most of the hashish was disappearing down the toilet. The propriety of the convictions and the issuance of the search warrant were later upheld on appeal by the Indiana Appellate Court. The second drug case involved a state police undercover officer who had infiltrated a weapons and drug selling group in Fort Wayne, Indiana. The officer had arranged to purchase a large quantity of cocaine from the group. The exchange of drugs and money was to take place in the Angola Holiday Inn parking lot which was just three miles south of the Michigan state line. The officer waited in his old car in the parking lot at the appointed time. He was wired. Two state police were in a van nearby with radio receivers. Two Steuben County deputy sheriffs were cruising nearby in an unmarked car. Soon a car approached the lot (a raven black 1970 Boss 302 Mustang), circled slowly by all of the parked vehicles, and departed. The officer recognized the driver as one of the group from Fort Wayne. In the front seat was a large Doberman, a status symbol among drug dealers. Then a second drug dealer drove into the lot and pulled up beside the undercover officer. The drug dealer told the officer to get into the dealer’s car and they drove away. This was obviously an unanticipated change of plans which was complicated by the fact that the wire was not working. The police were frantic. They did not know where the dealer was taking the officer and thought that his cover may have been blown. The drug dealer drove north into Michigan and then turned west and south on a gravel road into Indiana. The car stopped and the drug dealer jumped out and uncovered a large package buried in a snow bank. The package was opened by the officer and the cocaine tested while the dealer drove north just over the state line into Michigan. It tested pure cocaine and the officer paid the dealer. All of the time the officer and the dealer were talking the officer assumed that all of the conversations were being overheard by the other police officers. He thought that they were near and would come to his assistance shortly. The officer pulled his hand gun and ordered the dealer to stop the car and get out. Just then the backup Mustang being driven north out of Indiana appeared and drove toward the officer. The car contained a snarling Doberman and the other dealer, probably armed. The officer with drawn pistol stood in the middle of the road to block the Mustang. The officer did not know what he should do next. He was expecting his own backup. Luckily, the sheriffs, who had been frantically cruising all of the back gravel roads in the area, came upon the scene and

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helped subdue both of the dealers. The Doberman was thankfully spared and tied to a tree. A search of both vehicles disclosed more coke and several semi-automatic weapons. Both dealers were charged in Indiana and Michigan with possession of unregistered firearms, possession and sale of cocaine. The defendants claimed the defense of entrapment-that the idea of committing the crimes originated with the police when the defendants had no previous intention or disposition to break the law. The defendants also claimed that the Indiana officers had no right to arrest them in Michigan and that the officers had no probable cause to arrest. The defendant who was in the first car filed a motion, based upon entrapment, to dismiss the case and to exclude all evidence of the drugs and guns as improperly obtained in Michigan. I denied the motion. The backup defendant, who was represented by the same defense attorney, then procured a change of venue to another judge and filed the same motion before the new judge. The new judge, who was the Circuit Court judge of an adjoining county, granted the motion and dismissed the case against the backup defendant. In the trial of the first defendant before me the jury deliberated only one hour. The jury convicted the defendant of all three crimes and I sentenced him to ten years in prison. Prior to the trial, the defendant was offered a plea bargain by the prosecutor which would have called for a total sentence of two years. The defendant refused such offer. His well paid attorney had assured him that he would get him off scot free! The conviction was upheld on appeal to the Indiana Appellate Court.

My only personal brush with the criminal law illustrates the fact that sometimes the complexities of constitutional protections do not filter down to the lower levels of police enforcement. After retiring from the bench I stopped briefly at my old law office one day. I parked right in front of the office. I looked out the front window and observed a lady Angola City Police officer placing a large yellow chalk mark on my right rear tire, writing something on a tablet and walking away. The object of the marking was to keep tabs on parked cars to see if they violated a city ordinance against parking over two hours. I promptly went to my car and started to rub the yellow mark off. The officer came running back to my car and told me that I could not do that. I said that I had just parked my car, was about to leave and as she knew I was not violating any parking ordinance. She said that she would have to give me a parking ticket because I had rubbed some chalk off and I was not supposed to do this. She gave me a parking ticket. After receiving the ticket I went to talk to the Angola Chief of Police. I asked him if there was any ordinance or other law which forbad rubbing off yellow chalk marks on tires. He said that there was no such ordinance or law but they had been having problems with people doing that and he had instructed his officers to ticket any such action. Somewhat dismayed, I asked him if I had heard him correctly. Did he really instruct his officers to issue misdemeanor traffic citations to persons who had not violated any law? He said yes. He did so because something had to be done to stop the illegal excess parking. I asked what would be done if I did not pay the $2.00 fine for violating a law that did not exist. He said with a straight face that if I did not pay the fine within 24 hours he would follow procedure and instruct the City Attorney to file charges against me in Circuit Court for the $2.00 plus $25.00 per day late penalty. I paid the $2.00.

STERILIZATION: In 1971 I faced a decision which would test my basic beliefs as to the right of privacy and the treatment of persons with mental disabilities. The Steuben County Welfare Department filed a petition to have an eighteen year old woman under their care involuntarily sterilized. The petition alleged that she was “feebleminded”, was

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about to be married to a man who was also feebleminded whom she had met at a mental institution, and that if not sterilized she would most likely have several children of like mental condition. The petition was pursuant to Indiana law and asked that a hearing date be set for the presentation of evidence and that notice be given to the eighteen year old woman. This procedure and authority for a judge to order sterilization was set forth in an Indiana 1927 statute. The Indiana statute was based upon a Virginia statute which had been upheld by the United States Supreme Court in Buck v. Bell (1927). The statute gave a judge after a proper hearing the right to order sterilization of an institutionalized male or female if the judge determined that the respondent was “feebleminded or morally delinquent.” Buck v. Bell involved Carrie Buck, an eighteen year old girl, who was declared to be “a genetic threat to society” by a Virginia state court judge. According to the judge’s decision, Carrie was the daughter of “a socially inadequate mother and the mother herself of a similarly afflicted daughter.” Justice Oliver Wendell Holmes, Jr. of the United States Supreme Court wrote the opinion of the court. The opinion stated, “It is better for all of the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting Fallopian tubes….Three generations of imbeciles are enough!” The Supreme Court never reversed this decision. Thirty-three states including Indiana passed laws similar to the Virginia law authorizing involuntary sterilization. These state laws were all repealed by the mid 1970s and Indiana repealed its law in 1974. Two thousand three hundred men and women were involuntarily sterilized in Indiana and over sixty-five thousand nationwide. When the petition was filed with me, I did not set a hearing date. I asked the Welfare Department to withdraw the petition and stated to the director of the Welfare Department that even though the Indiana law authorized such a procedure, I would never issue an involuntary sterilization order. The Welfare Department deferred to my decision. There is a footnote to this issue. In Stump v. Sparkman (1978), the United States Supreme Court upheld a 1971 decision by the judge of the DeKalb Circuit Court (the Circuit Court judge of the county adjoining Steuben County) which authorized the sterilization of a fifteen year old girl. The court held that the judge was immune from any liability for his decision ordering the sterilization since it was a “judicial decision.” The facts of the case are startling. The girl’s mother petitioned the judge to issue an order to have her daughter sterilized. The mother alleged that the daughter was “somewhat retarded.”* The petition and subsequent order were never officially filed with the court. There was no hearing and no evidence was submitted to the judge. The girl was not notified that the petition had been filed and the judge did not appoint any attorney or guardian-ad-litem to represent the girl. The petition was granted the same day that it was submitted to the judge. The girl was told by her mother that she was going to have her appendix removed. Two years later the daughter was married and upon failure to become pregnant she learned for the first time that she had been sterilized. She and her husband sued the judge, the doctors and the hospital for damages. Based upon the Supreme Court decision, recovery was denied.* See page 309 for the Petition. The implications of this decision are frightening. The immense power given Indiana circuit and superior court judges makes it imperative that only qualified judges, both in legal training and moral character, be elected. Great power should always be exercised with great restraint.

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13. The case of Miranda v. Arizona (1966) is an example of the practical workings of the due process clause. We all have watched crime dramas where the police are always giving a suspected criminal “his Miranda rights.” In the Miranda case the police after a vigorous and prolonged interrogation of the accused obtained a confession. Miranda claimed that the police should have told him of his constitutional rights to be silent (Fifth Amendment) and to have an attorney present at the interrogation (Sixth Amendment). The state claimed that even though the Fifth and Sixth Amendments applied to a state criminal charge by virtue of the Fourteenth Amendment due process clause, Arizona law and the Constitution did not require such advice prior to interrogation. Miranda claimed that to be advised of such rights was required to provide a “fundamentally fair procedure” required under procedural due process. Anyone who watches television knows how the Supreme Court ruled. That is why Roberts was read his rights prior to his interrogation. Note: Miranda was subsequently tried again without the confession being admitted and was again found guilty and sentenced to 20-30 years in prison. He was stabbed to death in a bar fight in 1976. Two other Supreme Court decisions are also good examples of federally protected first eight amendment rights being incorporated in the Fourteenth Amendment due process clause and thereby binding upon the states. In Mapp v. Ohio (1961) Dollree Mapp was convicted of possession of obscene materials seized by the police after breaking down the door of her home. The police were searching for a suspected bombing fugitive. They did not find any fugitive but did find in a drawer in a dresser in her basement some obscene magazines. They did not have a search warrant. A warrant was not required by Ohio law, by federal law or federal court decisions. The Ohio Supreme Court upheld the conviction. The United States Supreme Court decided that this was an unreasonable search and seizure without a warrant, that the seized materials should therefore be excluded from evidence, that the right to not be subjected to such a search was a fundamental right as required by the Fourth Amendment and was incorporated in the Fourteenth Amendment. The charges were therefore dismissed. Dollree was arrested, tried and convicted nine years later after police (with a search warrant) found drugs in her apartment. In Gideon v. Wainwright (1963) Gideon was charged with burglary in a Florida court and he requested the court to appoint an attorney for him as he was indigent. The judge refused. Florida law did not require that an attorney be appointed for an indigent criminal defendant. Federal law and federal court decisions also did not require the appointment of an attorney. He was tried, convicted and sentenced to five years in jail. Gideon sent a hand written letter directly to the United States Supreme Court asking that they intervene. The Supreme Court allowed the letter to be filed as an appeal and appointed Abe Fortas, himself soon to be named a Justice of the Court, to represent Gideon. The Supreme Court decided that Gideon had a right to have an attorney appointed for him, that such a right was a fundamental right, and that this Sixth Amendment fundamental right was incorporated in the Fourteenth Amendment. The conviction was vacated and the Florida court was ordered to provide Gideon with an attorney upon any retrial. At his subsequent trial, represented by an attorney, Gideon was acquitted. Before Mapp (1961), Gideon (1963) and Miranda (1966), in some states, a person charged with murder could have been convicted based upon evidence seized from his home without a search warrant, was not entitled to a court appointed attorney to help defend him if he could not afford an attorney, and any confession obtained after a long and vigorous interrogation could be used against him without being advised of his right to remain silent. Such actions did not violate the Constitution of the United States.

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Indiana courts interpreted the Indiana Constitution as early as 1854 as requiring that an indigent criminal defendant be furnished an attorney at public expense for all felonies, and as early as 1923 as requiring that evidence obtained pursuant to an invalid search warrant or no search warrant be excluded.

APPENDIX

STUDENT OUTLINE AND DISCUSSION TOPICS

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(State of Indiana v. David James Roberts)

INTRODUCTION-1: The Roberts case is a state court criminal proceeding. The initial inquiry will be into the source of substantive law in the United States. There are four primary sources of law: legislative law, administrative law, common law, and constitutional law.

1. Legislative Law: Laws passed by Congress and the state legislatures. Ex: Federal laws creating administrative agencies; federal criminal statute; civil rights and Labor Law (pg. 297), state criminal statute (the Roberts case); state juvenile law; and state Uniform Commercial Code (UCC). Note: Ecclesiastical Law: Originally English Anglican Church law (divorce and wills) and now under legislative law-state law covers these subjects.

One source of a state’s right, obligation and power to pass laws is the Police Power. The Police Power of a state may be stated as follows: Private rights including the right to contract, to own and use property and personal freedom rights may be restricted by a state government in the public interest to protect the public health, safety and morals. This principal was first enunciated by Justice Taney in an 1847 opinion. The federal government has no police power and all federal powers must be derived from the Constitution.

2. Administrative Law: Congress or state legislatures create administrative agencies by an Enabling Act and gives them the right to make, enforce and adjudicate rules and regulations which have the effect as if passed by Congress. To be constitutional, the enabling act must provide the purpose, powers and duties of the agency and provide reasonable standards in implementing the act. See Federal Administrative Agencies pg. 295. Ex: Federal Trade Commission, Federal Securities and Exchange Commission, Federal Interstate Commerce Commission (abolished), State Public Service Regulatory Commission, etc.

3. Judicial Law: Judge made law (not made or created by a legislative body) which is divided into common law and equity. First established in England by judges and adopted by the states’

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judges. Many areas of law previously under the common law and equity are now covered by legislative law. Civil liability is either voluntary (contract) or involuntary (tort).

A. Common Law: Examples: Contract law: a contract must contain mutual assent, consideration (the agreed exchange of something of value), capacity, and legality. Tort law: (1) intentional (Examples: battery, trespass, defamation); (2) negligence (non intentional) which evolved as a tort c. 1850 (a duty to comply with a statute, other duty, or reasonable man standard, and a breach which proximately causes injury or damage); and (3) strict liability without fault (Examples: Workers’ Compensation laws; wild animals and blasting; products liability, Restatement of Torts Sec. 402A, which is the liability of merchant sellers from selling a product that is defective and unreasonably dangerous). B. Equity: Courts of equity (Chancery Courts) were first created in England to provide remedies not provided under the common law. The common law could award damages but could not compel a person to do or not do something. Equity examples: A court order to convey real estate pursuant to a contract (specific performance); a court order to refrain from proposed construction on adjoining land (injunction); a court order re-writing a contract to correct a mutual mistake (reformation of documents), a court order cancelling a transaction for fraud or duress (rescission). Note: Courts of law and equity and ecclesiastical courts (divorce) are now merged into one court system with simplified procedure. However, matters which were traditionally equitable or ecclesiastic are still decided by a judge and not by a jury (Ex: divorce, probate procedure, specific performance).

4. Constitutional Law: Timeline:

Original 13 colonies

1774 First Continental Congress petitions England for redress

1775 Battle of Lexington and Concord between Minutemen and Redcoats “The shot heard ’round the world”

July 4, 1776, Declaration of Independence by Second Continental Congress

1781, Articles of Confederation (single Congress, no power to tax or over commerce, no executive or judicial branches, nine states had to agree to laws, Articles could only be amended if all states agreed)

1783 Treaty of Paris between U.S. and Britain ends Revolutionary War

Winter 1786-June 25, 1787, Shay’s Rebellion in western Massachusetts

February 21, 1787, Continental Congress approves call for a convention

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May 25-September 17, 1787 (115 days) Constitutional Convention held and Constitution adopted

June 25, 1788 Constitution ratified by nine state conventions

March 4, 1789, the Constitution goes into effect

December 15, 1791 Bill of Rights ratified by states.

The Constitutional Convention was held in Philadelphia in the summer of 1787. The delegates consisted of fifty-five men from twelve states (Rhode Island was not represented). Nearly all of the delegates were of considerable wealth. Most were accustomed to a standard of living that set them apart from the people they were representing. Forty-two had served in the Continental Congress. The average age was forty-four. At the time of the convention many men pursued multiple careers simultaneously. Twenty-nine had undergraduate degrees. Twenty-nine had studied law. Fourteen were merchants. Ten were in banking and finance. Sixteen were farmers. Twenty-five owned slaves.

Against a background of strong and conflicting views concerning states’ rights, the respective rights of small and large states, the right of the people to participate in national government, the powers to be granted to the national government, and slavery, the delegates undertook the daunting task of creating a national government and establishing a Constitution. Also complicating their decisions was the strong belief by many delegates that the ordinary citizen was susceptible to being improperly influenced by prejudice and passion and therefore should not be given absolute control in the operation of the proposed new government and in the selection of government officials. Most delegates agreed that a strong central government must be created-the Articles of Confederation had failed. Rhode Island paper money and the Massachusetts Shay’s Rebellion illustrate these issues.

RHODE ISLAND PAPER MONEY (1786)

The Rhode Island legislature is taken over by the farmers from the inland towns (vs. the merchants) and the farmers had no money, hard (gold and silver) or soft and wanted something to satisfy their creditors and buy new things for their families.

Legislature passed laws that issued half a million dollars in script (promissory notes of a bankrupt government) and loaned this money to farmers and took back a mortgage on their land.

The merchants did not want this paper money and to counteract this, raised the prices of goods and would not take the paper money at face value.

The farmers then refused to sell to the merchants and sold in other states. The farmers were threatened with armed violence. The merchants closed up shop and would not sell at all to the farmers.

The legislature then passed laws that if a merchant would not accept paper money at face value, the merchant would be fined five hundred dollars and not be able to vote. The judges refused to enforce this law and the legislature removed them. Also laws were passed that if the script was

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not accepted at par, the farmer’s debts was discharged. Paper money which was issued in May was worth sixteen cents on the dollar in November.

The forcing acts were then repealed.

The Rhode Island paper money fiasco was thought by many delegates to the Constitutional Convention to be an example of how the people (acting through their state legislatures) could not be trusted to act in the interest of all but acted out of self interest and never act from reason alone. Therefore, in the new federal government to be formed, the people would ultimately be restricted to only electing one half of one third of the government (the House of Representatives).

Note: Rhode Island did not send any representatives to the Constitutional Convention.

SHAY’S REBELLION (1786-1787)

Shay’s rebellion started in western Massachusetts and was the reaction by up to 15,000 farmers to strict fiscal policies enacted by the Massachusetts’ legislature resulting in mortgage foreclosures and seizing property for delinquent taxes. The farmers wanted to have all debts cancelled and they forced court houses to close, threatened sheriffs and threatened a government arsenal. The Articles of Confederation did not provide for a militia or army and the rebellion was not stopped until the governor raised a private army which confronted and defeated the rebellious farmers on June 25, 1787. Total fatalities in the battle were four.

The Constitutional Convention opened on May 25, 1787, and Shay’s Rebellion and Rhode Island Paper Money were much on the minds of the delegates. The rebellion greatly influenced the delegates in two ways:

1. The rebellion showed that the Articles of Confederation were inadequate. Congress could not raise money or an army. Something drastic had to be done to strengthen the federal government and save the experiment in liberty and union. See ART I, Sec. 8 where Congress is given the power to “call forth the militia to suppress insurrections.”

2. That the people should not be in control of the new government. Even George Washington had doubts about pure democracy. He stated “that mankind, left to themselves, are unfit for their own government.”

Some delegates at the convention thought that the people of the nation at large were inherently incapable of making a wise selection for government representatives- that the ordinary citizens were too gullible and their votes could be too easily manipulated-that ordinary citizens were insufficiently intelligent to make a wise choice. Tyranny could come from the impulsive and irrational behavior of the multitude.

Most delegates thought that the people at large were simply too ignorant. By the term ignorant the delegates did not mean mentally deficient but rather they meant that the people did not have available to them sufficient facts and information (newspapers, magazines or otherwise) upon which to make a wise decision in selecting representatives. The delegates would ultimately

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give the people the right to elect only the members of the House of Representatives. One delegate stated that “the Senate ought to be picked in such a way as to make it a safe and sure check on any wild ideas coming from the democratic House.”

There were no other constitutions or forms of government which could be a model to guide the delegates. They would create an entirely new form of popular government. The Constitution would create a representative democracy which was a “democratic republic” that incorporated both republican and democratic principles in a complicated and ingenious way. In a democracy the will of the people, with their prejudices and passions, is supreme. In a republic it is not the will of the people but the rational consensus of the people, arrived at by learned thoughtful statesmen who are engaged in conversation with the citizenry, which governs the people. Only one division of this new government was elected directly by the people and truly democratic, the House of Representatives. The other divisions, the Senate, the President, and the Supreme Court were not elected directly by the people and were republican in nature. In the Senate, the people elected directly the state legislatures and the state legislatures selected the two senators who were expected to be learned thoughtful statesmen and above the prejudices and passions of the people. The selection of the President was by Electors, chosen by the state legislatures who were elected by the people. The Electors were also expected to be statesmen who would elect a statesman President. Members of the Supreme Court are appointed by the President with the advice and consent of the Senate. The people therefore had no direct vote in their selection.

Among the many issues to be decided by the Constitution Convention delegates were:

1. How should the national government be structured?

A. Unicameral or bicameral legislature? How should members of the legislature be selected? By people, by state legislatures? If by people, how many votes for each state? How many members, length of term, compensation and qualifications? Powers: express and implied; necessary and proper B. Executive: How many, length of term. Compensation and qualifications? How should the Executive be selected? By people, by House or Senate, by state legislatures, by Electors ? If by people, how many votes for each state? Powers? C. Judicial: What courts should be created? How selected, term, compensation and qualifications? Jurisdiction and powers?

2. Slavery: Should slavery be abolished? (Article I Sec. 9) Should slaves be able to vote? Should they be considered in determining the number of Representatives? The rights of slaves who were in “free” states? (Article IV Sec. 2) Should they continue as “property” and be freely sold and imported? See Dred Scott

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For an excellent description of the making of the Constitution read Plain, Honest Men by Richard Beeman, 2009, Random House.

The Constitution when adopted created three branches of federal government and set forth powers, duties, obligations, and limits. See pg. 207 for US Constitution.Article I: Legislative branch: Senate and House of Representatives Sec. 2: Members of the House of Representatives (435) are elected by the people. Note: The original Constitution did not state who was eligible to vote. It was left up to the states. A voter had to have the same qualifications as a voter for the most numerous branch of the state legislature. Sec. 3: Two senators from each state were appointed by their state legislature. Pursuant to the XVII Amendment (1913) Senators are now elected by the people. Sec. 8: Powers of Congress including power to regulate interstate commerce (one basis of 1964 civil rights act), to establish lower federal courts, to declare war, necessary and proper clause and to call forth the militia to suppress insurrections. Sec. 9: Limitations on powers: slavery shall not be abolished prior to 1808, Writ of Habeas Corpus shall not be suspended, no Bill of Attainder or ex post facto law. Article II: Executive branch: the President and other executive officers that are appointed by the President. Sec. 1: The President is elected by Electors. Each state legislature sets up method of selecting Electors (Each state has 2 for Senators + number of state Representatives. Total for 50 states +3 in D.C.=538 total Electors). Sec. 2: Powers (including the right to appoint all federal judges with advice and consent of the Senate). Article III: The judicial branch: United States Supreme Court, U.S. Federal Circuit Courts, U.S. Federal District Courts and Court of International Trade. The Supreme Court has 9 members (since 1869). Sec. 1: Vesting of judicial power, judges tenure and pay. Sec. 2: Jurisdiction. Trial by jury for federal criminal crimes. Article IV: Sec. 1: Full faith and credit clause. Sec. 2: Privileges and immunities clause. Discrimination does not violate this clause. Escaped slaves must be delivered up to owner. Superseded by XIII Amendment.Article V: Amendments to the Constitution. Two exceptions. Number of Senators and slavery. Article VI: The Constitution and the laws of the United States shall be the supreme lawof the land. Bill of Rights, 1791, (Am. 1-10) To protect against federal action. Note: The amendments to the Constitution protects us from certain state and federal action, not action by an individual (except slavery in 13th Am.)

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INDEPENDENCE HALL

ADDITIONAL READINGS

1: THE MOST SUCCESSFUL REVOLUTION http://americanheritage.com/print/53137

Brief summary of an article, The Most Successful Revolution, written by Irving Kristol for our bicentennial celebration of the revolution, American Heritage Magazine, 1974.

The American political tradition has worked so well that we have not bothered to inquire why it has worked so well. We believe that republican self government is an easy affair and when it falters, it must be a consequence of personal incompetence or malfeasance of our elected officials.

The Founding Fathers thought that self government was a chancy and demanding enterprise and that successful government in a republic was a most difficult business. They understood the frailties of human nature (that there is a degree of depravity in mankind) and that republican self government could not exist if humanity did not possess, at some moments and to a fair degree, the traditional “republican virtues” of self control, self reliance, and a disinterested concern for the public good. They believed that a community of individual sinners could, under certain special conditions, constitute a good community, but that such transformation will only take place with constant, rigorous attentiveness.

The “Special Conditions” which are needed for our system of government to succeed is the willingness of the individual citizen to be self-disciplined and to have and exercise the traditional republican virtues. George Washington and Abraham Lincoln both asserted there must not only be obedience to law but a reverence for the law.

In recognition of the frailties of human nature and the need for constant and rigorous attentiveness, the Founders created a new form of popular government that incorporated both republican and democratic principles in a complicated and ingenious way in our Constitution. This form of government has been perceptively titled, “a democratic republic.” The framers of the Constitution had no desire at all to see this new country governed along strict democratic principles.

We tend to think of the term “democracy” and “republic” as near-synonyms, but in fact they differ significantly in their political connotations. In a democracy the will of the people is

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supreme and popular passion may rule. In a republic it is not the will of the people but the rational consensus of the people which governs. This consensus is determined by statesmen-sober, unglamorous, thoughtful men who make decisions for the people after deliberation, which decisions are not bases upon what the majority may think is best for them. A Congressman who votes as he believes a majority of his constituents want him to vote, would be acting in a democratic way. If he voted contrary to such majority but in a way he thought was best for all citizens, then he would be acting in a republican way. As an example, the Supreme Court of the United States is not, and was never supposed to be, a democratic institution; it is a republican institution that counter balances the activities of our various democratic institutions.

This system has lasted for over two centuries, which means that it has worked very well. But we should never ever forget that it will only continue to work if each of us exercises self-discipline and self-reliance, and has a disinterested concern for the public good.

2: REPRESENTATIVE DELIBERATIVE DEMOCRACY

Representative Deliberative Democracy: Representatives are selected by the people and it is the representatives rather than the people directly who govern. In making governmental decisions, representatives should value persuasion over rigid unyielding defense of preferences or interests. Reasoned arguments are substituted for the simple tallying of votes dictated by constituents’ preferences. After such deliberation, representatives should make their decisions based upon what they think is best for the community common good-they should not be bound by the majority preferences. James Madison believed that the process of deliberation could produce results different from, and superior to, any other ideas that representatives brought with them to an assembly.

The process of deliberation by people with diverse backgrounds, convictions, and aspirations makes possible a form of decision making unavailable through any other form of decision making. People who see the world through very different lenses could help each other see more clearly. Delegates must be willing to change their minds and yield to the force of the better argument.

3: ORIGINAL INTENT

Original Intent: Conservatives invoke the idea that the Constitution sets forth a set of determinate rules and meanings that the Founders decided upon or intended as to what legislatures and judges can legitimately do. This has been labeled as the “originalism” interpretation of the Constitution. However, there was a depth of disagreement by the Founders at the Constitutional Convention and by the state conventions during the process of ratification. The Constitution resulted from a series of compromises and the decision to leave the Constitution open to amendment testified to the framers’ realization that the nations’ Constitution and its interpretation would have to change with American culture, albeit slowly, in order to survive. How would originalism explain how the equal protection clause should be interpreted today in light of the fact that in the 1760’s the founding fathers knew that most schools were segregated even in the Federal District of Columbia, or the cruel and unusual punishments clause when flogging was common practice on eighteenth-century ships?

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The Constitution should be viewed not as a settled arrangement for American governance, but as a creative compromise among diverse authors. The Founders were attuned to a deliberative, open-ended way of conducting public life: an ingenious, if imperfect, solution that has endured even as similar experiments in other countries have not, precisely because it is premised on accommodating differences and changing peoples’ views, not embedding them in stone.

Most judges reject originalism and use textual language, history, context, relevant traditions, precedent, purposes and consequences (including the effect upon other branches of the government) to interpret the Constitution. Judges should always regard the Constitution as containing unwavering values that must be applied to ever changing circumstances in today’s world. Only by such an interpretation can our Constitution and the courts maintain public respect and acceptance.

The recent cases of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), examined the right to bear arms set forth in the Second Amendment. These cases illustrate the differing opinions as to the proper interpretation of our Constitution. In both cases the right to prohibit the possession of a handgun was challenged. The majority of five justices stated that this amendment had two underlying values: to protect a communities’ collective right of self-defense acting through a militia, and the major underlying value which was that a person had a personal right to bear arms for self defense as the delegates at that time were fearful of the English Catholic King disarming the protestant colonials. This latter value acknowledged that the right to bear arms was a fundamental right and therefore a Second Amendment right (Heller) and incorporated in the substantive due process clause of the Fourteenth Amendment (McDonald). The majority did not consider changing circumstances as the minority did.

The minority of four thought that the major underlying value and purpose of the right to bear arms set forth in the Second Amendment was to protect the militias. There was fear that the right of Congress to regulate militias as set forth in Article I would allow Congress to weaken or disband militias, and therefore the Founders wanted to protect militias. The minority recognized that the individual right to bear arms for self defense was important in primarily rural America but, in light of changing circumstances to an urban society, this right can be limited because of the greater risk of taking lives. Protecting innocent lives by banning urban handguns does not disproportionally burden the interest the Second Amendment seeks to protect, “self defense.” Therefore, the right to possess a handgun is not now a fundamental right and is not incorporated in the Second Amendment or substantive due process clause as to either federal or state action.

References:

The above thoughts and comments are taken in part from:

The Audacity of Hope: Thoughts on Reclaiming the American Dream by Barack Obama, 2008, Vintage

Reading Obama: Dreams, Hope, and the American Political Tradition by James T. Kloppenberg, 2010, Princeton University Press

Harvard Magazine, A Nation Arguing with its Conscience, November-December 2010

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Making Our Democracy Work by Justice Stephen Breyer, 2010, Alfred A. Knopf

Also see pg. 305 for an analysis of the Heller and McDonald decisions.

INTRODUCTION-2: In addition to the sources of the law, the function of the state and federal courts in interpreting and applying the law as well as the applicable procedure is summarized as follows:

Comparison of civil law: A case brought by a person (plaintiff) against another (defendant) to compensate for injury and damages and possible punitive damages and criminal law: case brought by government, state prosecutor or federal district attorney, to punish etc.

Examples of civil law: automobile negligence suit, suit for breach of contract or on promissory note. Ex: A plaintiff claims in Complaint to have a “cause of action” for negligence, or for breach of contract. Examples of criminal law: murder, manslaughter, arson, burglary, theft, sale of drugs. See pg. 213 for Indiana Offenses and Sentences.

Procedure in civil law: Complaint (sets forth the plaintiff’s claims), summons (notifies defendant that suit has been filed and an answer must be filed within a certain time period), appearance in court by defendant, answer of defendant to complaint, discovery, pre-trial conference, trial to court or jury, verdict, judgment, and appeal. Plaintiff must prove his case by a “preponderance of the evidence.” If an Appearance and Answer is not filed with the court within the time limits set forth in the Summons, a default judgment in the full amount of the complaint may be entered against the defendant. Procedure in criminal law: Grand Jury Indictment or Information, arrest warrant (probable cause), arrest, bail, Initial Hearing with plea (Arraignment), discovery, Pretrial Hearing (Omnibus Hearing), trial to judge or jury, verdict, judgment, and appeal. The prosecutor must prove his case “beyond a reasonable doubt.” See pg. 278 for Criminal Procedure Outline.

The Federal Court System: District Court (94 in all-2 in Indiana), Circuit Court of Appeals (13), United States Supreme Court, Court of International Trade, and special courts. All judges (except special courts) are appointed by the President for life (good behavior). Nine members of Supreme Court since 1869. The number of Supreme Court justices is not set forth in the Constitution. The Supreme Court hears appeals from lower federal courts by Certiorari, has original jurisdiction in some matters, and hears appeals from the state highest court by Certiorari. A Petition for a Writ of Certiorari is a request to the Supreme Court to hear a matter. Jurisdiction of Federal Courts: Set forth in Article III, Sec. 2. The main jurisdiction is to hear cases involving federal laws, the Constitution, and controversies between citizens of different states (the amount of damages claimed must be at least $75,000.00).

A U.S. Supreme Court case is cited as follows: 181 US 612. The first number is the volume and the second is the page.

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The State Court System: Circuit, Probate or Superior Courts, Indiana Appellate Courts, Indiana Supreme Court. In Indiana trial judges are elected, appellate judges are appointed with retention vote. A state Circuit Court has unlimited jurisdiction over all matters which are not exclusively under federal jurisdiction. State court jurisdiction includes state criminal, civil, juvenile, domestic relations, probate, and state and federal constitutional.

An Indiana Supreme Court case is cited as follows: 247 IN 361, 62 NE 2d 33. The first number is the volume and the second is the page number in the volume.

NOTE: Some matters are exclusively within federal court jurisdiction (a criminal charge of violating a federal controlled substance law); some exclusively within state court jurisdiction (a state criminal charge of murder, which, however, can be appealed to a federal court to determine a federal constitutional question; and matters which are within both state and federal court jurisdiction arising between citizens of different states, called “diversity of citizenship” (Ex: a civil negligence suit arising out of an automobile accident wherein the plaintiff and defendant are citizens of different states). If a diversity of citizenship case is first filed in a state court, the defendant may have it removed to a federal court if $75,000.00 or more.

STATE AND FEDERAL COURTS

US Supreme Court --------------Writ of Certiorari**--------Indiana Supreme Court-----!Nine Justices * Five Justices ^Appointed for life by President with Nominated and retention vote !advice and consent of US Senate.*** ^ ! ^ ! ! ! ! ^ Writ of Certiorari***** ! ! ^ ! ! ! ! !US Circuit Court of Appeals Indiana Appellate Courts !Thirteen Circuits-three judge Five courts-three judge panels. !panels. Appointed for life w/ Nominated and retention vote !advice and consent of US Senate. ^ ! ^ ! ! ! ! ^ ! ! !US District Courts -------------Diversity of Citizenship------ Indiana Circuit and---------^ Ninety-four courts ($75,000.00 or more) Superior Courts **** Cases usually heard by one judge. Cases heard by one judge Appointed for life w/advice and Elected consent of US Senate.

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* Number of justices not set in Constitution. Congress decides. Nine since 1869.** Must be a federal question (involving a federal statute or the US Constitution).*** Authority: Article I Sec. 8 cl. 9 and Article III Sec. 1.**** Direct appeal from Circuit or Superior Court to Indiana Supreme Court in cases involving the death sentence, life without parole sentence, and where a state statute is declared unconstitutional by the trial court.*****The US Supreme Court usually selects cases wherein the Circuit Courts of Appeals have conflicting opinions.

Note 1: Total certiorari requests filed with US Supreme Court in 2011 were approximately 10,000. Approximately 100 were granted, heard and opinions issued. Total US District Court filings of federal questions, diversity and criminal were approximately 325,000. Total US Circuit Court of Appeals filings were approximately 55,000. Most law is made by state legislatures and state judiciary (family law; property law, most tort, business, criminal law etc.). Over 100 million cases filed in state courts every year.

Note 2: The US Court of Appeals for the Seventh Circuit (Chicago) hears cases appealed from the trial US District Courts in Wisconsin, Illinois and Indiana. Indiana has two US District Courts: (1) The US District Court for the Northern District of Indiana with judges sitting in Fort Wayne, Hammond, Lafayette and South Bend and (2) The US District Court for the Southern District of Indiana with judges sitting in Evansville, New Albany and Indianapolis.

See: http://www.uscourts.gov/court_locator.aspx

INTRODUCTION-3: The above concepts are incorporated in and illustrated by State of Indiana v. David James Roberts.

Suggested discussion points by chapter in Change of Venue are as follows:

Chapter 1:Indiana (1816) and Steuben County (1837): The naming of Indiana and the XI Amendment (1798).

Land in western Virginia Colony from British Empire to Six Nations of the Iroquois (1768 Treaty of Fort Stanwick) to Philadelphia trading company to Indiana Land Company (1776). Virginia claims this land and suit filed in 1792 in Supreme Court by Indiana Land Company. Grayson v. Virginia (1796) and Hollingsworth v.Virginia (1798). Chisholm v. Georgia (1793) Northwest Ordinance of 1787 and Indiana Territory (1800). Early disrespect for federal courts: Grayson and The Cherokees

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See Note 1 and Note 2: Indiana miscegenation law.THE CHEROKEES

Defeat for the rule of law

The Cherokee Indians owned land, rocks and minerals that the white Georgia settlers wanted. In 1829 gold was found. The Cherokees held there land pursuant to a treaty with the United States. The chief of the Cherokees was John Ross. Georgia in the early 1830s passed laws nullifying all Cherokee laws, prohibiting the Cherokee legislature from meeting and ordered the arrest of any Indian who argued against moving west which the laws required. President Andrew Jackson sided with Georgia and refused to send federal troops to protect the Cherokee treaty rights.Attempts to enforce Cherokee rights:

1. Corn Tassle, a Cherokee, was arrested by Georgians on Indian land for allegedly committing a crime on Indian land. He applied to the U.S. Supreme Court for relief but before his petition could be heard, Georgia executed him.

2. The Cherokee Nation then brought suit in the U. S. Supreme Court (30 US 1 (1831) to nullify the Georgia laws as interfering with the treaty rights. The court held it had no original jurisdiction and dismissed the case.

3. Georgia laws required all white persons living within the Cherokee Nation to take an oath to support Georgia laws. A missionary, Samuel Worcester, refused, was arrested and sentenced to four years in prison. He appealed his criminal conviction to the U.S. Supreme court (Worcester v. Georgia 31 US 515, 1832). The court upheld the treaty and said that Georgia could not enter Cherokee lands without permission and could not apply Georgia law there. Worcester was ordered released. The state judge would not release him. President Jackson would not intervene. After much public pressure he was pardoned by the governor.

4. In 1835, without any authorization from Chief Ross or the Cherokee government, a small group of Cherokees were induced to go to Washington by federal representatives and the group signed a treaty with the United States agreeing to the removal of the tribe to the west. The Senate promptly approved the treaty. Federal troops then forcibly removed most of the Cherokee to Oklahoma. Seventeen thousand Cherokee were removed and many starved and died on the Trail of Tears. Quatie Ross, wife of John Ross, died along the trail and her burial site and tombstone are just one mile from Little Rock Arkansas Central High School. It would be 115 years later when federal troops would enforce the law at Central High School. Brown v. Board of Education 347 US 483 (1954).

Chapter 3:The judge: A judge’s background and the possible effect upon a judge’s actions and opinions. The U.S. Senate role in federal judge appointments. Elective v. appointive judges.

See Note 7: Requirements to practice law and be a judge in Indiana: Until 1932, Article VIII of the Indiana Constitution provided that “Every person of good moral character, being a voter, shall be entitled to admissions to practice law in all courts of justice.” There was no requirement

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of legal studies, law school or bar examination. Until 1970, there was no statute or Indiana Constitutional provision that required that a judge be admitted to the practice of law. See Note 4: Civil Rights Act and conspiracy to violate.

Chapter 4:The Circuit Court history and jurisdiction.The five divisions of the Circuit Court (criminal, civil, juvenile, domestic relations, and probate) and example cases in each division.

1. Domestic relations: Requirements for divorce, custody, property division, alimony, support and visitation.

2. Juvenile: Originally part of adult criminal law. Now separate law based upon “parens patriae” for children under eighteen committing acts of delinquency. Limited sanctions. Waiver as adult for serious offenses. See pg. 293 for Juvenile Procedure and pg. 281 for Juvenile Law.

3. Civil: Indiana procedure concerning medical malpractice (negligence): Before filing suit, plaintiff must first present the alleged malpractice to a Medical Review Board for their non binding written opinion. At trial, plaintiff must present at least one physician’s testimony that the defendant’s actions were negligent.

4. Criminal: Probable cause and search warrant (IV Amendment); hot pursuit arrests; defenses: entrapment, defense of self and property (use of deadly force and no duty to retreat), insanity (traditional 1843 M’Naghten Rule: knowing right from wrong), Indiana Rule (pg. 272), and ALI rule (a mental disease or defect which causes defendant not to realize that the conduct was criminal or causes the defendant to not be able to conform his conduct to the law), and voluntary intoxication (not a defense). The defendant has the burden of proof to prove insanity. Indiana burden is by a preponderance of the evidence (pg. 276). Federal rule must be severe defect and burden of proof is by clear and convincing evidence. Sterilization case: Example of the power of a judge and changing opinions as to a constitutional law.

See Note 12 for examples of actual cases.

DIVISIONS OF THE INDIANA CIRCUIT COURT

Divisions of the Indiana Circuit Court:(1) Domestic Relations (2) Probate (3) Civil (4) Criminal and (5) Juvenile

1. Domestic Relations:

a. Divorce, legal separation (A mensa et thoro, from bed and board): Legal Separation for one year if it is intolerable for both parties to live together but the marriage should be maintained. IC 31-15-3

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b. Divorce, absolute (Vinculo matrimonii, from the bond of marriage): Traditional basis: Incurable insanity or adultery. Indiana: IC 31-15-2-3 and IC 31-15-2-13. Indiana basis: Irretrievable breakdown, conviction of a felony subsequent to marriage, impotence existing at marriage, and incurable insanity for a period of two years. IC 31-15-2 No fault divorce and waiver of trial now also allowed if parties consent. Matters to be decided: Division of property and debts, alimony, support (schedule), custody and visitation (guidelines), and subsequent hearing for modification or contempt.

2. Probate: Wills, trusts, probate of wills, testate and intestate administration, Indiana and federal inheritance and estate taxes, estate planning. Related topics to estate planning: Deeds, recording act, tenancy in common, joint tenancy, tenancy by the entireties, transfer on death real and personal property, leases, notes and mortgages.

3. Civil: All civil liability is either voluntarily assumed as by contract, or involuntarily imposed by law as in tort. See Equity pg. 189 for equitable remedies.

A. Contract: There are four essential elements to create a contract. 1. Mutual assent or consent: Usually involves an offer and an acceptance. A contract is void if there is physical duress, fraud in the inducement or mutual mistake; and a contract is voidable if threats, undue influence and fraud in the procurement. 2. Consideration: Adequacy and preexisting obligation (exchange of something of value). 3. Legality: Blue laws, licenses (regulatory or revenue), usury, exculpatory clauses. 4. Capacity: Minors, mental illness, known intoxication (voidable contract). Voidable means by one party only (Ex: the minor or the party threatened) Even though a contract exists, it may be unenforceable if it does not comply with the Statute of Frauds. The statute provides that certain contracts must be evidenced by a sufficient writing to be enforceable. The statute includes contracts for the sale of real estate, contracts not to be performed within a year, and contracts for the sale of goods of $500.00 or more (UCC). Under the Parole Evidence Rule, an integrated contract may not be changed by virtue of prior or contemporaneous statements. Remedies for breach of Contract: Monetary (compensatory and punitive), and equitable remedies such as reformation, specific performance, rescission, and injunction.B. Torts: There are three types of torts: intentional, unintentional as in negligence, and unintentional strict liability as in products liability.1. Intentional: Assault, battery, false arrest, defamation (slander and libel), fraudulent misrepresentation, invasion of privacy, trespass to real property, nuisance and conversion. Damages are compensatory (Examples: the value of property damaged or cost to repair; and for personal injuries, lost wages, hospital and doctor expenses, pain and suffering); and punitive for intentional and outrageous conduct with fraudulent or evil motive. Amount must be reasonable to deter such future conduct.

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2. Negligence: Unintentional act which has four required elements: a. Duty to act or refrain from acting: based upon a reasonable person standard, statutory obligation (safety standards) or duty to act (Ex: non negligent driver hits jaywalker, baby sitter, volunteer). b. A breach of the duty which c. Proximately causes d. Injury or damages. Defenses to a negligence charge: Contributory negligence, comparative negligence, fellow servant and assumption of risk. Damages are compensatory.3. Strict Liability: Unintentional act which causes damages: a. Abnormally dangerous activities (Ex: storing explosives and blasting); wild animals and dangerous domestic animals (liability for trespassing cats and dogs only if owner negligent) ; products liability and Workers’ Compensation Statutes. b. Products liability: Sec. 402A Restatement of Torts. Liability for selling a product in a defective condition which is unreasonably dangerous to the user or consumer. Manufacturer, wholesaler and merchants are all liable. c. Workers’ Compensation Statutes abolish defenses of fellow servant, contributory or comparative negligence and assumption of risk. Damages are compensatory.

4. Criminal: Felonies (a year or more imprisonment) and misdemeanors (a year or less imprisonment) Infractions are not criminal. Examples: murder, manslaughter, battery, kidnapping, rape robbery, arson theft, burglary, fraud, trespass and drug offenses. Pg. 213 Procedure: Pg. 278

5. Juvenile: Law: Pg 281 Procedure: Pg. 293 Jurisdiction Pg. 282 Waiver: Pg. 290 and 294 Chapter 5:Criminal Information and Grand Jury: History of Grand Jury, V AmendmentArrest Warrant: IV AmendmentBail (See also Chapter 7): VIII AmendmentTraditional Murder (with intent, malice and premeditation). Indiana law now does not require malice or premeditation. Pg. 216Felony murder (no intent to murder but causing death in commission of felony) Voluntary Manslaughter: voluntary killing (intent to kill with malice but no premeditation as in the “heat of passion”) Involuntary Manslaughter (no malice, premeditation or intent to kill)

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Examples of other crimes:Theft: Exerting unauthorized control over the property of anotherBattery: Intentionally touching another person in a rude or angry mannerBurglary: Breaking and entering a dwelling at night with intent to commit a felonyArson: By means of fire to intentionally damage a dwellingRobbery: Intentionally taking property from another person by using or threatening force or by putting another person in fear

Chapters 6 and 9:Arraignment: Advice of Constitutional rights, appointment of attorney if indigent, and plea. Constitutional rights of a defendant in a criminal proceeding: the right to not testify against himself (V Amendment); the right to a speedy and public trial by jury; the right to be informed of the charges; the right to confront witnesses against him; the right to compulsory process to obtain witnesses on his behalf; and the right to the assistance of counsel (VI Amendment).Chapter 7:Bail and Petition to be Let to Bail. VIII Amendment. Pg. 266 and Burden of Proof pgs. 263 and 42Chapter 8:Change of Venue: from judge, from county. Chapter 10:Omnibus hearing. Right to proposed witness list and exhibits. Motion in limine. Completion of depositions and interrogatories. Setting trial date.Chapters 11-21, 23: Trial phase one: Reasons for bifurcation.Ch. 11-12, History of right to vote and trial by jury; jury questionnaire, voir dire and jury selection. DNA now available. See Indiana Statutes concerning DNA pg. 300 Ch. 13, Jury instructions (presumption of innocence, reasonable doubt, credibility of witnesses). Ch. 14-19, The trial evidence. Chain of custody, arrest and search warrants (Ch. 14). “Miranda Rights” to remain silent and to have an attorney if indigent (Ch. 17 and see Miranda Note 13). Arrest of Roberts (Ch. 17): Discuss right of police and citizens to arrest pg. 250 and Detention of Mentally Ill pg. 255. What order would you have used in presenting evidence? What closing statements would you have used? Ch. 20, Closing statements. How would you have decided-guilty or not guilty?Ch. 21, Jury determines facts and the law (jury nullification and lesser included offenses).Ch. 23, The verdicts. See pg. 277 for current Indiana law concerning Jury Verdicts for Murder. Sentencing: Judge determines sentence except for jury verdict of death or life without parole.Discuss objections to evidence throughout the trial (hearsay and best evidence) and defendant’s decision not to testify. Chapter 26:Trial phase two. How would you have decided-death or life? Constitutional provisions that punishment shall be proportional and not vindictive. Chapter 27:Motion to Correct Errors: the trial court’s decision declaring the Indiana death sentence statute unconstitutional, Furman and Woodson.

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Note that less than death sentences can be constitutionally mandatory. Ex: Mandatory life imprisonment without the possibility of parole for possession of more than 650 grams of cocaine. Chapter 28:Judicial review: Marbury v. Madison and John Marshall. Chapter 29:Cruel and unusual punishments (two concepts: cruel and unusual, and proportional): a mandatory death sentence is not proportional. Bill of Rights and 14th Amendment: procedural and substantive due process:Two concepts of substantive due process: 1. Fundamental rights: See in depth discussion in this chapter and Miranda (fundamental rights must be explained), Mapp, Gideon (see Note 13) and Roe v. Wade (9th

Am.) 410 U.S. 113 (1973). 2. A law must be reasonable and not arbitrary or unjust: Dred Scott v. Sandford, 1857, 19 How 393, the first case establishing substantive due process. Commencing with Lochner v. New York, 1905, 198 U.S. 45, until 1937 the Supreme Court operated as a super-legislature, rather than in performance of their constitutional function of judicial review, to determine if a law was reasonable and if not negate social and economic legislation with which they did not agree: Schechter Poultry v. U.S., 1935, 295 U.S. 495. In NLRB v. Jones & Laughlin, 1937, 301 U.S. 1, the court adopted the previous minority opinion of Justice Oliver Wendell Holmes, Jr. (1902-1932) and declared that legislative acts would be upheld if rational legislators regarded the legislation as a reasonable method or technique of reaching the desired result. Even if the judges completely disagree, courts should not substitute their social and economic beliefs for the judgment of legislative bodies who are elected to pass laws.

Equal protection in 14th Amendment. Plessy v. Ferguson, (separate but equal), 1896, 163 U.S. 537, and Brown v. Board of Education, 1954, 347 U.S. 483.

5th Amendment due process clause includes equal protection of the law as a fundamental right.Discuss Korematsu v. United States, 1944, 323 U.S. 214. Japanese ancestry citizens removal from California and placement in camps by virtue of a federal executive order based upon the war powers of the legislative and executive branches of the United States government was challenged as a violation of procedural due process and substantive due process (equal protection fundamental right) under the Fifth Amendment.

See following Additional Bibliography

Chapter 30: Indiana Supreme Court decision. Roberts v. State of Indiana, 375 N. E. 2d 215 (1978)

NOTE: Most important United States Supreme Court cases are set forth in:http://en.wikipedia.org/wiki/Landmark_decisions_in_the_United_States

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ADDITIONAL BIBLIOGRAPHY

A. Due Process: 5th Amendment for federal action and 14th Amendment for state action.

Dred Scott (1857), federal law: First case to decide that if a law is unreasonable and unjust it violates substantive due process. Missouri Compromise held unconstitutional.

Lochner (1905), state law; and Schecter (1935), federal law: The Supreme Court, rather than deferring to the legislature, acted as a super legislature to decide if a law was unreasonable and unjust. Court held both laws unconstitutional.

Jones and Laughlin (1937), federal law: The Supreme Court deferred to the rational decisions of the legislature. Overruled Lochner and Schecter. Wagner Act (labor law) upheld.

B. Equal Protection: Contained in the 5th Amendment as substantive due process. It is a fundamental right for federal action, and 14th Amendment for state action.

Plessy (1896): separate but equal is constitutional. Train segregation upheld.

Brown (1954): School segregation unconstitutional. Overruled Plessy.

Korematsu (1944): Segregating U.S. citizens of Japanese ancestry was constitutional.

C. Interstate Commerce: Article I Sec 8.

What is commerce and what is interstate?

Gibbons v. Ogden (1824): Broad interpretation of what is commerce-more than just sale of goods-includes transportation.

Lochner (1905), state law: Bakeries were not interstate.

Schecter (1935), federal law: Regulation of the poultry business not interstate Jones and Laughlin (1937), federal law: Wagner Act (labor law) upheld.

Limit on what is commerce: National Federation v. Sebelius (2012), federal law: Affordable Care Act. Mandatory purchase of health insurance by individuals not a proper exercise of the "commerce clause" power. (It is constitutional however under the power to tax). 5-4 decision.

D. Necessary and Proper Clause: Article I Sec. 8.

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McCulloch v. Maryland (1819): The powers of Congress are not limited to those expressly stated in the Constitution. Congress also has implied powers from the express powers to do what is necessary and proper for the good of the nation. Power to create nation bank upheld although no express powers to do so in Sec. 8.

National Federation v. Sebelius (2012). See above: The act is not a proper exercise of the "necessary and proper" power.

United States Constitution (1788)(Some provisions are omitted)

ARTICLE I

Section 2The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Section 3The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one vote.

Section 8The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;To borrow money on the credit of the United States;To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;To provide for the punishment of counterfeiting the securities and current coin of the United States;To establish post offices and post roads;To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;To constitute tribunals inferior to the Supreme Court;

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To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;To provide and maintain a navy;To make rules for the government and regulation of the land and naval forces;To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;AndTo make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Section 9The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.No bill of attainder or ex post facto Law shall be passed.No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.No tax or duty shall be laid on articles exported from any state.No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.

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No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

ARTICLE II

Section 1The President shall be elected as follows: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. The Electors shall meet in their respective States, and vote by Ballot for two persons.” The person having the greatest number of votes shall be the President. The person having the next greatest number of votes shall be the Vice President. Note: The above section has additional provisions.Section 2The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

ARTICLE IIISection 1The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

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Section 2

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

ARTICLE IV

Section 2

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

ARTICLE V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of

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three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

ARTICLE VI

Clause 1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

AMENDMENT I (1791)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

AMENDMENT II (1791)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AMENDMENT III (1791)

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, not in time of war, but in a manner to be prescribed by law.

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AMENDMENT IV (1791)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

AMENDMENT V (1791)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in the cases in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

AMENDMENT VI (1791)

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.

AMENDMENT VII (1791)

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

AMENDMENT VIII (1791)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

AMENDMENT IX (1791)

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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AMENDMENT X (1791)

The powers not delegated to the United States by the Constitution, nor prohibited by the States, are reserved to the States respectively, or to the people. Note: The rights in the bold sections above apply only to federal action.

AMENDMENT XI (1798)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

AMENDMENT XIII (1865)

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The Congress shall have the power to enforce this article by appropriate legislation.Note: Mississippi did not ratify until 2013.

AMENDMENT XIV (1868)

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereto, are citizens of the United States, and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

AMENDMENT XV (1870)

The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation.Note: Tennessee did not ratify until 1997.

INDIANA OFFENSES AND SENTENCES

OFFENSES AGAINST THE PERSONHomicide 216 (Intentional Murder, Felony Murder, Voluntary Manslaughter, Involuntary Manslaughter, Reckless Homicide)Battery 218

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Kidnapping 222Rape 223Robbery 229

OFFENSES AGAINST PROPERTYArson-Mischief: 230 Class B or A FelonyBurglary : 232 Class C or B FelonyTrespass: 232 Class A Misdemeanor or Class D FelonyTheft: 235 Class D to C FelonyConversion: 237 Class A Misdemeanor to Class D FelonyForgery: 237 Class D to C FelonyFraud: 240 Class D FelonyCheck Deception: 241 Class A Misdemeanor to Class D Felony

MISCELLANEOUSControlled Substances: IC 35-48-4Motor Vehicle Operation Violations: IC 9-21-8Attempt: 267Aiding (Accessory) 267Conspiracy 268

FELONY SENTENCES 243

Murder: 45-65 years plus $10,000.00 Advisory: 55 years. Judge decides sentence. However, if death or life without parole requested by the prosecutor, the jury and not the judge decides the sentence. 247 The judge decides the sentence in all of the following: Class A: 20-50 years plus $10,000.00 Advisory: 30 years Class B: 6-20 years plus $10,000.00 Advisory: 10 years Class C: 2-8 years plus $10,000.00 Advisory: 4 years Class D: 6 months - 3 years plus $10,000.00 Advisory: 1 1/2 years May be reduced to a Class A Misdemeanor Habitual Offender; With 3 felonies an additional penalty can be added equal to the advisory sentence up to three times the advisory sentence not to exceed 30 years. IC 35-50-2-8

MISDEMEANOR SENTENCES 249 The judge decides the sentence in all of the following: Class A: Not more than 1 year plus $5,000.00

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Class B: Not more than 180 days plus $1,000.00 Class C: Not more than 60 days plus $500.00

INFRACTION SENTENCES IC 34-28-5-4 (Fines only plus court costs-no imprisonment) The judge decides the sentence in all of the following: Class A: Max. $10,000.00 Class B: Max. $1,000.00 Class C: Max. $500.00 Class D: Max. $25.00

NOTE: The Indiana Criminal Code was amended substantially, effective July 1, 2014. The law assigns new penalties to many crimes; adds, changes and deletes some crimes; and changes the classification of felonies from four Classes (A-D) to six Levels (1-6).

IC 35-50-2-4 to IC 35-50-2-7

Level 1: 20-50 years, advisory 30 years, $10,000.00 fineLevel 2: 10-30 years, advisory 17years, $10,000.00 fineLevel 3: 3-20 years, advisory 6years, $10,000.00 fine Level 4: 2-12 years, advisory 4years, $10,000.00 fineLevel 5: 1-6 years, advisory 2years, $10,000.00 fineLevel 6: 6-30 months, advisory 1 year, $10,000.00 fine

INDIANA CODE http://iga.in.gov/legislative/laws/2014/ic/

IC 35-42    ARTICLE 42. OFFENSES AGAINST THE PERSON

IC 35-42-1     Chapter 1. Homicide

IC 35-42-1-0.5Abortions exempt     Sec. 0.5. Sections 1, 3, and 4 of this chapter do not apply to an abortion performed in compliance with:        (1) IC 16-34; or        (2) IC 35-1-58.5 (before its repeal).As added by P.L.261-1997, SEC.2.

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IC 35-42-1-1Murder     Sec. 1. A person who:        (1) knowingly or intentionally kills another human being;        (2) kills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor, or carjacking;        (3) kills another human being while committing or attempting to commit:            (A) dealing in or manufacturing cocaine or a narcotic drug (IC 35-48-4-1);            (B) dealing in or manufacturing methamphetamine (IC 35-48-4-1.1);            (C) dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2);            (D) dealing in a schedule IV controlled substance (IC 35-48-4-3); or            (E) dealing in a schedule V controlled substance; or        (4) knowingly or intentionally kills a fetus that has attained viability (as defined in IC 16-18-2-365); commits murder, a felony.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.25; P.L.326-1987, SEC.2; P.L.296-1989, SEC.1; P.L.230-1993, SEC.2; P.L.261-1997, SEC.3; P.L.17-2001, SEC.15; P.L.151-2006, SEC.16; P.L.173-2006, SEC.51; P.L.1-2007, SEC.230.

IC 35-42-1-2Causing suicide     Sec. 2. A person who intentionally causes another human being, by force, duress, or deception, to commit suicide commits causing suicide, a Class B felony.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.26.

IC 35-42-1-2.5Assisting suicide     Sec. 2.5. (a) This section does not apply to the following:        (1) A licensed health care provider who administers, prescribes, or dispenses medications or procedures to relieve a person's pain or discomfort, even if the medication or procedure may hasten or increase the risk of death, unless such medications or procedures are intended to cause death.        (2) The withholding or withdrawing of medical treatment or life-prolonging procedures by a licensed health care provider, including pursuant to IC 16-36-4 (living wills and life-prolonging procedures), IC 16-36-1 (health care consent), or IC 30-5 (power of attorney).    (b) A person who has knowledge that another person intends to commit or attempt to commit suicide and who intentionally does either of the following commits assisting suicide, a Class C felony:        (1) Provides the physical means by which the other person attempts or commits suicide.        (2) Participates in a physical act by which the other person attempts or commits suicide.As added by P.L.246-1993, SEC.1. Amended by P.L.1-1994, SEC.167.

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IC 35-42-1-3Voluntary manslaughter     Sec. 3. (a) A person who knowingly or intentionally:        (1) kills another human being; or        (2) kills a fetus that has attained viability (as defined in IC 16-18-2-365);while acting under sudden heat commits voluntary manslaughter, a Class B felony. However, the offense is a Class A felony if it is committed by means of a deadly weapon.    (b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.27; P.L.321-1987, SEC.1; P.L.261-1997, SEC.4.

IC 35-42-1-4Involuntary manslaughter     Sec. 4. (a) As used in this section, "child care provider" means a person who provides child care in or on behalf of:        (1) a child care center (as defined in IC 12-7-2-28.4); or        (2) a child care home (as defined in IC 12-7-2-28.6);regardless of whether the child care center or child care home is licensed.    (b) As used in this section, "fetus" means a fetus that has attained viability (as defined in IC 16-18-2-365).    (c) A person who kills another human being while committing or attempting to commit:

        (1) a Class C or Class D felony that inherently poses a risk of serious bodily injury;        (2) a Class A misdemeanor that inherently poses a risk of serious bodily injury; or        (3) battery;commits involuntary manslaughter, a Class C felony. However, if the killing results from the operation of a vehicle, the offense is a Class D felony.    (d) A person who kills a fetus while committing or attempting to commit:        (1) a Class C or Class D felony that inherently poses a risk of serious bodily injury;        (2) a Class A misdemeanor that inherently poses a risk of serious bodily injury;        (3) battery; or        (4) a violation of IC 9-30-5-1 through IC 9-30-5-5 (operating a vehicle while intoxicated);commits involuntary manslaughter, a Class C felony. However, if the killing results from the operation of a vehicle, the offense is a Class D felony.    (e) If:        (1) a child care provider recklessly supervises a child; and        (2) the child dies as a result of the child care provider's reckless supervision;the child care provider commits involuntary manslaughter, a Class D felony.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.28; P.L.261-1997, SEC.5; P.L.133-2002, SEC.65; P.L.7-2010, SEC.1.

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IC 35-42-1-5Reckless homicide     Sec. 5. A person who recklessly kills another human being commits reckless homicide, a Class C felony.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.29; Acts 1980, P.L.83, SEC.6.

IC 35-42-1-6Feticide     Sec. 6. A person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide, a Class B felony. This section does not apply to an abortion performed in compliance with:        (1) IC 16-34; or        (2) IC 35-1-58.5 (before its repeal).As added by Acts 1979, P.L.153, SEC.3. Amended by P.L.2-1995, SEC.126; P.L.40-2009, SEC.1.

IC 35-42-2 Chapter 2. Battery and Related Offenses

IC 35-42-2-1Battery     Sec. 1. (a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:        (1) a Class A misdemeanor if:            (A) it results in bodily injury to any other person;            (B) it is committed against a law enforcement officer or against a person summoned and directed by the officer while the officer is engaged in the execution of the officer's official duty;            (C) it is committed against an employee of a penal facility or a juvenile detention facility (as defined in IC 31-9-2-71) while the employee is engaged in the execution of the employee's official duty;            (D) it is committed against a firefighter (as defined in IC 9-18-34-1) while the firefighter is engaged in the execution of the firefighter's official duty;            (E) it is committed against a community policing volunteer:                (i) while the volunteer is performing the duties described in IC 35-41-1-4.7; or                (ii) because the person is a community policing volunteer; or            (F) it is committed against the state chemist or the state chemist's agent while the state chemist or the state chemist's agent is performing a duty under IC 15-16-5;        (2) a Class D felony if it results in bodily injury to:            (A) a law enforcement officer or a person summoned and directed by a law enforcement officer while the officer is engaged in the execution of the officer's official duty;            (B) a person less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age;            (C) a person of any age who has a mental or physical disability and is committed by a person having the care of the person with a mental or physical disability, whether the care is assumed voluntarily or because of a legal obligation;

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            (D) the other person and the person who commits the battery was previously convicted of a battery in which the victim was the other person;            (E) an endangered adult (as defined in IC 12-10-3-2);            (F) an employee of the department of correction while the employee is engaged in the execution of the employee's official duty;            (G) an employee of a school corporation while the employee is engaged in the execution of the employee's official duty;            (H) a correctional professional while the correctional professional is engaged in the execution of the correctional professional's official duty;            (I) a person who is a health care provider (as defined in IC 16-18-2-163) while the health care provider is engaged in the execution of the health care provider's official duty;            (J) an employee of a penal facility or a juvenile detention facility (as defined in IC 31-9-2-71) while the employee is engaged in the execution of the employee's official duty;            (K) a firefighter (as defined in IC 9-18-34-1) while the firefighter is engaged in the execution of the firefighter's official duty;            (L) a community policing volunteer:                (i) while the volunteer is performing the duties described in IC 35-41-1-4.7; or                (ii) because the person is a community policing volunteer;            (M) a family or household member (as defined in IC 35-41-1-10.6) if the person who committed the offense:                (i) is at least eighteen (18) years of age; and                (ii) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense; or            (N) a department of child services employee while the employee is engaged in the execution of the employee's official duty;        (3) a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon;        (4) a Class B felony if it results in serious bodily injury to a person less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age;        (5) a Class A felony if it results in the death of a person less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age;        (6) a Class C felony if it results in serious bodily injury to an endangered adult (as defined in IC 12-10-3-2);        (7) a Class B felony if it results in the death of an endangered adult (as defined in IC 12-10-3-2); and        (8) a Class C felony if it results in bodily injury to a pregnant woman and the person knew the woman was pregnant.    (b) For purposes of this section:        (1) "law enforcement officer" includes an alcoholic beverage enforcement officer; and        (2) "correctional professional" means a:            (A) probation officer;            (B) parole officer;            (C) community corrections worker; or            (D) home detention officer.

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IC 35-42-2-1.3Domestic battery     Sec. 1.3. (a) A person who knowingly or intentionally touches an individual who:        (1) is or was a spouse of the other person;        (2) is or was living as if a spouse of the other person as provided in subsection (c); or        (3) has a child in common with the other person;in a rude, insolent, or angry manner that results in bodily injury to the person described in subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor.    (b) However, the offense under subsection (a) is a Class D felony if the person who committed the offense:        (1) has a previous, unrelated conviction:            (A) under this section (or IC 35-42-2-1(a)(2)(E) before its repeal); or            (B) in any other jurisdiction, including a military court, in which the elements of the crime for which the conviction was entered are substantially similar to the elements described in this section; or        (2) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense.    (c) In considering whether a person is or was living as a spouse of another individual in subsection (a)(2), the court shall review the following:        (1) the duration of the relationship;        (2) the frequency of contact;        (3) the financial interdependence;        (4) whether the two (2) individuals are raising children together;        (5) whether the two (2) individuals have engaged in tasks directed toward maintaining a common household; and        (6) other factors the court considers relevant.As added by P.L.188-1999, SEC.6. Amended by P.L.47-2000, SEC.3; P.L.221-2003, SEC.18; P.L.129-2006, SEC.1.

IC 35-42-2-1.5Aggravated battery     Sec. 1.5. A person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death or causes:        (1) serious permanent disfigurement;        (2) protracted loss or impairment of the function of a bodily member or organ; or        (3) the loss of a fetus;commits aggravated battery, a Class B felony.As added by P.L.213-1991, SEC.2. Amended by P.L.261-1997, SEC.6.

IC 35-42-2-2Criminal recklessness; element of hazing; liability barred for good faith report or judicial participation     Sec. 2. (a) As used in this section, "hazing" means forcing or requiring another person:        (1) with or without the consent of the other person; and

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        (2) as a condition of association with a group or organization;to perform an act that creates a substantial risk of bodily injury.    (b) A person who recklessly, knowingly, or intentionally performs:        (1) an act that creates a substantial risk of bodily injury to another person; or        (2) hazing;commits criminal recklessness. Except as provided in subsection (c), criminal recklessness is a Class B misdemeanor.    (c) The offense of criminal recklessness as defined in subsection (b) is:        (1) a Class A misdemeanor if the conduct includes the use of a vehicle;        (2) a Class D felony if:            (A) it is committed while armed with a deadly weapon; or            (B) the person committed aggressive driving (as defined in IC 9-21-8-55) that results in serious bodily injury to another person; or        (3) a Class C felony if:            (A) it is committed by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather; or            (B) the person committed aggressive driving (as defined in IC 9-21-8-55) that results in the death of another person.    (d) A person who recklessly, knowingly, or intentionally:        (1) inflicts serious bodily injury on another person; or        (2) performs hazing that results in serious bodily injury to a person;commits criminal recklessness, a Class D felony. However, the offense is a Class C felony if committed by means of a deadly weapon.    (e) A person, other than a person who has committed an offense under this section or a delinquent act that would be an offense under this section if the violator was an adult, who:        (1) makes a report of hazing in good faith;        (2) participates in good faith in a judicial proceeding resulting from a report of hazing;        (3) employs a reporting or participating person described in subdivision (1) or (2); or        (4) supervises a reporting or participating person described in subdivision (1) or (2);is not liable for civil damages or criminal penalties that might otherwise be imposed because of the report or participation.    (f) A person described in subsection (e)(1) or (e)(2) is presumed to act in good faith.    (g) A person described in subsection (e)(1) or (e)(2) may not be treated as acting in bad faith solely because the person did not have probable cause to believe that a person committed:        (1) an offense under this section; or        (2) a delinquent act that would be an offense under this section if the offender was an adult.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.31; Acts 1981, P.L.300, SEC.1; P.L.323-1987, SEC.1; P.L.216-1996, SEC.17; P.L.1-2003, SEC.94; P.L.75-2006, SEC.3.

IC 35-42-2-3Provocation     Sec. 3. A person who recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable man to commit battery commits provocation, a Class C infraction.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.32.

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IC 35-42-2-9Strangulation     Sec. 9. (a) This section does not apply to a medical procedure.    (b) A person who, in a rude, angry, or insolent manner, knowingly or intentionally:        (1) applies pressure to the throat or neck of another person; or        (2) obstructs the nose or mouth of the another person;in a manner that impedes the normal breathing or the blood circulation of the other person commits strangulation, a Class D felony.

IC 35-42-3 Chapter 3. Kidnapping and Confinement

IC 35-42-3-1Definition     Sec. 1. As used in this chapter, "confine" means to substantially interfere with the liberty of a person.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.33.

IC 35-42-3-2Kidnapping     Sec. 2. (a) A person who knowingly or intentionally confines another person:        (1) with intent to obtain ransom;        (2) while hijacking a vehicle;        (3) with intent to obtain the release, or intent to aid in the escape, of any person from lawful detention; or        (4) with intent to use the person confined as a shield or hostage;commits kidnapping, a Class A felony.    (b) A person who knowingly or intentionally removes another person, by fraud, enticement, force, or threat of force, from one place to another:        (1) with intent to obtain ransom;        (2) while hijacking a vehicle;        (3) with intent to obtain the release, or intent to aid in the escape, of any person from lawful detention; or        (4) with intent to use the person removed as a shield or hostage;commits kidnapping, a Class A felony.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.34; Acts 1978, P.L.144, SEC.4.

IC 35-42-3-3Criminal confinement     Sec. 3. (a) A person who knowingly or intentionally:        (1) confines another person without the other person's consent; or        (2) removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another;commits criminal confinement. Except as provided in subsection (b), the offense of criminal

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confinement is a Class D felony.    (b) The offense of criminal confinement defined in subsection (a) is:        (1) a Class C felony if:            (A) the person confined or removed is less than fourteen (14) years of age and is not the confining or removing person's child;            (B) it is committed by using a vehicle; or            (C) it results in bodily injury to a person other than the confining or removing person; and

        (2) a Class B felony if it:            (A) is committed while armed with a deadly weapon;            (B) results in serious bodily injury to a person other than the confining or removing person; or            (C) is committed on an aircraft.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.35; Acts 1979, P.L.299, SEC.1; P.L.183-1984, SEC.2; P.L.278-1985, SEC.8; P.L.49-1989, SEC.21; P.L.59-2002, SEC.2; P.L.70-2006, SEC.1.

IC 35-42-4 Chapter 4. Sex Crimes

IC 35-42-4-1Rape     Sec. 1. (a) Except as provided in subsection (b), a person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when:        (1) the other person is compelled by force or imminent threat of force;        (2) the other person is unaware that the sexual intercourse is occurring; or        (3) the other person is so mentally disabled or deficient that consent to sexual intercourse cannot be given;commits rape, a Class B felony.    (b) An offense described in subsection (a) is a Class A felony if:        (1) it is committed by using or threatening the use of deadly force;        (2) it is committed while armed with a deadly weapon;        (3) it results in serious bodily injury to a person other than a defendant; or        (4) the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.36; P.L.320-1983, SEC.23; P.L.16-1984, SEC.19; P.L.297-1989, SEC.1; P.L.31-1998, SEC.3.

IC 35-42-4-2Criminal deviate conduct     Sec. 2. (a) A person who knowingly or intentionally causes another person to perform or submit to deviate sexual conduct when:        (1) the other person is compelled by force or imminent threat of force;

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        (2) the other person is unaware that the conduct is occurring; or        (3) the other person is so mentally disabled or deficient that consent to the conduct cannot be given;commits criminal deviate conduct, a Class B felony.    (b) An offense described in subsection (a) is a Class A felony if:        (1) it is committed by using or threatening the use of deadly force;        (2) it is committed while armed with a deadly weapon;        (3) it results in serious bodily injury to any person other than a defendant; or        (4) the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.37; P.L.320-1983, SEC.24; P.L.183-1984, SEC.3; P.L.31-1998, SEC.4.

IC 35-42-4-3Child molesting     Sec. 3. (a) A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony. However, the offense is a Class A felony if:        (1) it is committed by a person at least twenty-one (21) years of age;        (2) it is committed by using or threatening the use of deadly force or while armed with a deadly weapon;        (3) it results in serious bodily injury; or        (4) the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge.    (b) A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony. However, the offense is a Class A felony if:        (1) it is committed by using or threatening the use of deadly force;        (2) it is committed while armed with a deadly weapon; or        (3) the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge.    (c) It is a defense that the accused person reasonably believed that the child was sixteen (16) years of age or older at the time of the conduct, unless:        (1) the offense is committed by using or threatening the use of deadly force or while armed with a deadly weapon;        (2) the offense results in serious bodily injury; or        (3) the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance

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without the victim's knowledge.As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.38; Acts 1978, P.L.82, SEC.2; Acts 1981, P.L.301, SEC.1; P.L.79-1994, SEC.12; P.L.33-1996, SEC.8; P.L.216-1996, SEC.18; P.L.31-1998, SEC.5; P.L.216-2007, SEC.42.

IC 35-42-4-5Vicarious sexual gratification; sexual conduct in presence of a minor     Sec. 5. (a) A person eighteen (18) years of age or older who knowingly or intentionally directs, aids, induces, or causes a child under the age of sixteen (16) to touch or fondle himself or another child under the age of sixteen (16) with intent to arouse or satisfy the sexual desires of a child or the older person commits vicarious sexual gratification, a Class D felony. However, the offense is:        (1) a Class C felony if a child involved in the offense is under the age of fourteen (14);        (2) a Class B felony if:            (A) the offense is committed by using or threatening the use of deadly force or while armed with a deadly weapon; or            (B) the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge; and        (3) a Class A felony if it results in serious bodily injury.    (b) A person eighteen (18) years of age or older who knowingly or intentionally directs, aids, induces, or causes a child under the age of sixteen (16) to:        (1) engage in sexual intercourse with another child under sixteen (16) years of age;        (2) engage in sexual conduct with an animal other than a human being; or        (3) engage in deviate sexual conduct with another person;with intent to arouse or satisfy the sexual desires of a child or the older person commits vicarious sexual gratification, a Class C felony. However, the offense is a Class B felony if any child involved in the offense is less than fourteen (14) years of age, and it is a Class A felony if the offense is committed by using or threatening the use of deadly force, if it is committed while armed with a deadly weapon, if it results in serious bodily injury, or if the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge.    (c) A person eighteen (18) years of age or older who knowingly or intentionally:        (1) engages in sexual intercourse;        (2) engages in deviate sexual conduct; or        (3) touches or fondles the person's own body;in the presence of a child less than fourteen (14) years of age with the intent to arouse or satisfy the sexual desires of the child or the older person commits performing sexual conduct in the presence of a minor, a Class D felony.As added by P.L.183-1984, SEC.4. Amended by P.L.79-1994, SEC.13; P.L.31-1998, SEC.6; P.L.118-2002, SEC.1; P.L.123-2003, SEC.1.

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IC 35-42-4-6Child solicitation     Sec. 6. (a) As used in this section, "solicit" means to command, authorize, urge, incite, request, or advise an individual:        (1) in person;        (2) by telephone;        (3) in writing;        (4) by using a computer network (as defined in IC 35-43-2-3(a));        (5) by advertisement of any kind; or        (6) by any other means;to perform an act described in subsection (b) or (c).    (b) A person eighteen (18) years of age or older who knowingly or intentionally solicits a child under fourteen (14) years of age, or an individual the person believes to be a child under fourteen (14) years of age, to engage in:        (1) sexual intercourse;        (2) deviate sexual conduct; or        (3) any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person;commits child solicitation, a Class D felony. However, the offense is a Class C felony if it is committed by using a computer network (as defined in IC 35-43-2-3(a)), and a Class B felony if the person commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and has a previous unrelated conviction for committing the offense by using a computer network (as defined in IC 35-43-2-3(a)).    (c) A person at least twenty-one (21) years of age who knowingly or intentionally solicits a child at least fourteen (14) years of age but less than sixteen (16) years of age, or an individual the person believes to be a child at least fourteen (14) years of age but less than sixteen (16) years of age, to engage in:        (1) sexual intercourse;        (2) deviate sexual conduct; or        (3) any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person;commits child solicitation, a Class D felony. However, the offense is a Class C felony if it is committed by using a computer network (as defined in IC 35-43-2-3(a)), and a Class B felony if the person commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and has a previous unrelated conviction for committing the offense by using a computer network (as defined in IC 35-43-2-3(a)).    (d) In a prosecution under this section, including a prosecution for attempted solicitation, the state is not required to prove that the person solicited the child to engage in an act described in subsection (b) or (c) at some immediate time.As added by P.L.183-1984, SEC.5. Amended by P.L.11-1994, SEC.16; P.L.79-1994, SEC.14; P.L.216-1996, SEC.20; P.L.118-2002, SEC.2; P.L.124-2005, SEC.1; P.L.216-2007, SEC.44.

IC 35-42-4-7Child seduction     Sec. 7. (a) As used in this section, "adoptive parent" has the meaning set forth in IC 31-9-2-6.    (b) As used in this section, "adoptive grandparent" means the parent of an adoptive parent.

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    (c) As used in this section, "charter school" has the meaning set forth in IC 20-18-2-2.5.    (d) As used in this section, "child care worker" means a person who:        (1) provides care, supervision, or instruction to a child within the scope of the person's employment in a shelter care facility;        (2) is employed by a:            (A) school corporation;            (B) charter school;            (C) nonpublic school; or            (D) special education cooperative;        attended by a child who is the victim of a crime under this chapter; or        (3) is:            (A) affiliated with a:                (i) school corporation;                (ii) charter school;                (iii) nonpublic school; or                (iv) special education cooperative;            attended by a child who is the victim of a crime under this chapter, regardless of how or whether the person is compensated;            (B) in a position of trust in relation to a child who attends the school or cooperative;            (C) engaged in the provision of care or supervision to a child who attends the school or cooperative; and            (D) at least four (4) years older than the child who is the victim of a crime under this chapter.The term does not include a student who attends the school or cooperative.    (e) As used in this section, "custodian" means any person who resides with a child and is responsible for the child's welfare.    (f) As used in this section, "military recruiter" means a member

of the armed forces of the United States (as defined in IC 20-33-10-2) or the Indiana National Guard whose primary job function, classification, or specialty is recruiting individuals to enlist with the armed forces of the United States or the Indiana National Guard.    (g) As used in this section, "nonpublic school" has the meaning set forth in IC 20-18-2-12.    (h) As used in this section, "school corporation" has the meaning set forth in IC 20-18-2-16.    (i) As used in this section, "special education cooperative" has the meaning set forth in IC 20-35-5-1.    (j) As used in this section, "stepparent" means an individual who is married to a child's custodial or noncustodial parent and is not the child's adoptive parent.    (k) If a person who:        (1) is at least eighteen (18) years of age; and        (2) is:            (A) the:                (i) guardian, adoptive parent, adoptive grandparent, custodian, or stepparent of; or                (ii) child care worker for; or            (B) a military recruiter who is attempting to enlist;        a child at least sixteen (16) years of age but less than eighteen (18) years of age;engages with the child in sexual intercourse, deviate sexual conduct (as defined in IC 35-41-1-9),

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or any fondling or touching with the intent to arouse or satisfy the sexual desires of either the child or the adult, the person commits child seduction, a Class D felony.As added by P.L.158-1987, SEC.4. Amended by P.L.1-1997, SEC.148; P.L.71-1998, SEC.5; P.L.228-2001, SEC.5; P.L.161-2003, SEC.10; P.L.1-2005, SEC.228; P.L.125-2009, SEC.7.

IC 35-42-4-8Sexual battery     Sec. 8. (a) A person who, with intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person, touches another person when that person is:        (1) compelled to submit to the touching by force or the imminent threat of force; or        (2) so mentally disabled or deficient that consent to the touching cannot be given;commits sexual battery, a Class D felony.    (b) An offense described in subsection (a) is a Class C felony if:        (1) it is committed by using or threatening the use of deadly force;        (2) it is committed while armed with a deadly weapon; or        (3) the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the

drug or controlled substance without the victim's knowledge.As added by P.L.322-1987, SEC.2. Amended by P.L.31-1998, SEC.7.

IC 35-42-4-9Sexual misconduct with a minor     Sec. 9. (a) A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with a minor, a Class C felony. However, the offense is:        (1) a Class B felony if it is committed by a person at least twenty-one (21) years of age; and        (2) a Class A felony if it is committed by using or threatening the use of deadly force, if it is committed while armed with a deadly weapon, if it results in serious bodily injury, or if the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge.    (b) A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits sexual misconduct with a minor, a Class D felony. However, the offense is:        (1) a Class C felony if it is committed by a person at least twenty-one (21) years of age; and        (2) a Class B felony if it is committed by using or threatening the use of deadly force, while armed with a deadly weapon, or if the commission of the offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge.

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    (c) It is a defense that the accused person reasonably believed that the child was at least sixteen (16) years of age at the time of the conduct. However, this subsection does not apply to an offense described in subsection (a)(2) or (b)(2).    (d) It is a defense that the child is or has ever been married. However, this subsection does not apply to an offense described in subsection (a)(2) or (b)(2).    (e) It is a defense to a prosecution under this section if all the following apply:        (1) The person is not more than four (4) years older than the victim.        (2) The relationship between the person and the victim was a dating relationship or an ongoing personal relationship. The term "ongoing personal relationship" does not include a family relationship.

(3) The crime:

            (A) was not committed by a person who is at least twenty-one (21) years of age;            (B) was not committed by using or threatening the use of deadly force;            (C) was not committed while armed with a deadly weapon;            (D) did not result in serious bodily injury;            (E) was not facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge; and            (F) was not committed by a person having a position of authority or substantial influence over the victim.        (4) The person has not committed another sex offense (as defined in IC 11-8-8-5.2) (including a delinquent act that would be a sex offense if committed by an adult) against any other person.As added by P.L.79-1994, SEC.15. Amended by P.L.33-1996, SEC.9; P.L.216-1996, SEC.21; P.L.31-1998, SEC.8; P.L.266-2003, SEC.1; P.L.216-2007, SEC.45.

IC 35-42-5     Chapter 5. Robbery

IC 35-42-5-1Robbery     Sec. 1. A person who knowingly or intentionally takes property from another person or from the presence of another person:        (1) by using or threatening the use of force on any person; or        (2) by putting any person in fear;commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant, and a Class A felony if it results in serious bodily injury to any person other than a defendant.As added by Acts 1977, P.L.340, SEC.39. Amended by Acts 1982, P.L.204, SEC.34; P.L.186-1984, SEC.1.

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IC 35-42-5-2Carjacking     Sec. 2. A person who knowingly or intentionally takes a motor vehicle from another person or from the presence of another person:        (1) by using or threatening the use of force on any person; or        (2) by putting any person in fear;commits carjacking, a Class B felony.As added by P.L.230-1993, SEC.3.

OFFENSES AGAINST PROPERTY

IC 35-43-1

     Chapter 1. Arson, Mischief, and Tampering

IC 35-43-1-1Arson     Sec. 1. (a) A person who, by means of fire, explosive, or destructive device, knowingly or intentionally damages:        (1) a dwelling of another person without the other person's consent;        (2) property of any person under circumstances that endanger human life;        (3) property of another person without the other person's consent if the pecuniary loss is at least five thousand dollars ($5,000); or        (4) a structure used for religious worship without the consent of the owner of the structure;commits arson, a Class B felony. However, the offense is a Class A felony if it results in either bodily injury or serious bodily injury to any person other than a defendant.    (b) A person who commits arson for hire commits a Class B felony. However, the offense is a Class A felony if it results in bodily injury to any other person.    (c) A person who, by means of fire, explosive, or destructive device, knowingly or intentionally damages property of any person with intent to defraud commits arson, a Class C felony.    (d) A person who, by means of fire, explosive, or destructive device, knowingly or intentionally damages property of another person without the other person's consent so that the resulting pecuniary loss is at least two hundred fifty dollars ($250) but less than five thousand dollars ($5,000) commits arson, a Class D felony.As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.40; Acts 1980, P.L.159, SEC.4; Acts 1981, P.L.302, SEC.1; Acts 1982, P.L.204, SEC.35; P.L.88-1999, SEC.1; P.L.123-2002, SEC.36.

IC 35-43-1-2Criminal mischief; penalties     Sec. 2. (a) A person who:        (1) recklessly, knowingly, or intentionally damages or defaces property of another person without the other person's consent; or

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        (2) knowingly or intentionally causes another to suffer pecuniary loss by deception or by an expression of intention to injure another person or to damage the property or to impair the rights of another person;commits criminal mischief, a Class B misdemeanor. However, the offense is:

            (A) a Class A misdemeanor if:                (i) the pecuniary loss is at least two hundred fifty dollars ($250) but less than two thousand five hundred dollars ($2,500);                (ii) the property damaged was a moving motor vehicle;                (iii) the property damaged contained data relating to a person required to register as a sex or violent offender under IC 11-8-8 and the person is not a sex or violent offender or was not required to register as a sex or violent offender;                (iv) the property damaged was a locomotive, a railroad car, a train, or equipment of a railroad company being operated on a railroad right-of-way;                (v) the property damaged was a part of any railroad signal system, train control system, centralized dispatching system, or highway railroad grade crossing warning signal on a railroad right-of-way owned, leased, or operated by a railroad company;                (vi) the property damaged was any rail, switch, roadbed, viaduct, bridge, trestle, culvert, or embankment on a right-of-way owned, leased, or operated by a railroad company; or                (vii) the property damage or defacement was caused by paint or other markings; and            (B) a Class D felony if:                (i) the pecuniary loss is at least two thousand five hundred dollars ($2,500);                (ii) the damage causes a substantial interruption or impairment of utility service rendered to the public;                (iii) the damage is to a public record;                (iv) the property damaged contained data relating to a person required to register as a sex or violent offender under IC 11-8-8 and the person is a sex or violent offender or was required to register as a sex or violent offender;                (v) the damage causes substantial interruption or impairment of work conducted in a scientific research facility;                (vi) the damage is to a law enforcement animal (as defined in IC 35-46-3-4.5); or                (vii) the damage causes substantial interruption or impairment of work conducted in a food processing facility.    (b) A person who recklessly, knowingly, or intentionally damages:        (1) a structure used for religious worship;        (2) a school or community center;        (3) the grounds:            (A) adjacent to; and            (B) owned or rented in common with;        a structure or facility identified in subdivision (1) or (2); or        (4) personal property contained in a structure or located at a

facility identified in subdivision (1) or (2);without the consent of the owner, possessor, or occupant of the property that is damaged, commits institutional criminal mischief, a Class A misdemeanor. However, the offense is a Class D felony if the pecuniary loss is at least two hundred fifty dollars ($250) but less than two

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thousand five hundred dollars ($2,500), and a Class C felony if the pecuniary loss is at least two thousand five hundred dollars ($2,500).    (c) If a person is convicted of an offense under this section that involves the use of graffiti, the court may, in addition to any other penalty, order that the person's operator's license be suspended or invalidated by the bureau of motor vehicles for not more than one (1) year.    (d) The court may rescind an order for suspension or invalidation under subsection (c) and allow the person to receive a license or permit before the period of suspension or invalidation ends if the court determines that:        (1) the person has removed or painted over the graffiti or has made other suitable restitution; and        (2) the person who owns the property damaged or defaced by the criminal mischief or institutional criminal mischief is satisfied with the removal, painting, or other restitution performed by the person.

IC 35-43-2 Chapter 2. Burglary and Trespass

IC 35-43-2-1Burglary     Sec. 1. A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is:        (1) a Class B felony if:            (A) it is committed while armed with a deadly weapon; or            (B) the building or structure is a:                (i) dwelling; or                (ii) structure used for religious worship; and        (2) a Class A felony if it results in:            (A) bodily injury; or            (B) serious bodily injury;        to any person other than a defendant.As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.42; Acts 1982, P.L.204, SEC.36; P.L.88-1999, SEC.2.

IC 35-43-2-1.5Residential entry     Sec. 1.5. A person who knowingly or intentionally breaks and enters the dwelling of another person commits residential entry, a Class D felony.As added by P.L.215-1991, SEC.1.

IC 35-43-2-2Criminal trespass; denial of entry; permission to enter; exceptions     Sec. 2. (a) A person who:        (1) not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person's agent;

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        (2) not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person's agent;        (3) accompanies another person in a vehicle, with knowledge that the other person knowingly or intentionally is exerting unauthorized control over the vehicle;        (4) knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent;        (5) not having a contractual interest in the property, knowingly or intentionally enters the dwelling of another person without the person's consent;        (6) knowingly or intentionally:            (A) travels by train without lawful authority or the railroad carrier's consent; and

            (B) rides on the outside of a train or inside a passenger car, locomotive, or freight car, including a boxcar, flatbed, or container without lawful authority or the railroad carrier's consent;        (7) not having a contractual interest in the property, knowingly or intentionally enters or refuses to leave the property of another person after having been prohibited from entering or asked to leave the property by a law enforcement officer when the property is:            (A) vacant or designated by a municipality or county enforcement authority to be abandoned property; and            (B) subject to abatement under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9, or IC 36-7-36; or        (8) knowingly or intentionally enters the property of another person after being denied entry by a court order that has been issued to the person or issued to the general public by conspicuous posting on or around the premises in areas where a person can observe the order when the property:            (A) has been designated by a municipality or county enforcement authority to be a vacant property or an abandoned property; and            (B) is subject to an abatement order under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9, or IC 36-7-36;commits criminal trespass, a Class A misdemeanor. However, the offense is a Class D felony if it is committed on a scientific research facility, on a key facility, on a facility belonging to a public utility (as defined in IC 32-24-1-5.9(a)), on school property, or on a school bus or the person has a prior unrelated conviction for an offense under this section concerning the same property.    (b) A person has been denied entry under subdivision (a)(1) of this section when the person has been denied entry by means of:        (1) personal communication, oral or written;        (2) posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public; or        (3) a hearing authority or court order under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9, or IC 36-7-36.    (c) A law enforcement officer may not deny entry to property or ask a person to leave a property under subsection (a)(7) unless there is reasonable suspicion that criminal activity has occurred or is occurring.    (d) A person described in subsection (a)(7) violates subsection (a)(7) unless the person has the written permission of the owner, owner's agent, enforcement authority, or court to come onto the property for purposes of performing maintenance, repair, or demolition.

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    (e) A person described in subsection (a)(8) violates subsection (a)(8) unless the court that issued the order denying the person entry grants permission for the person to come onto the property.    (f) Subsections (a), (b), and (e) do not apply to the following:

        (1) A passenger on a train.        (2) An employee of a railroad carrier while engaged in the performance of official duties.        (3) A law enforcement officer, firefighter, or emergency response personnel while engaged in the performance of official duties.        (4) A person going on railroad property in an emergency to rescue a person or animal from harm's way or to remove an object that the person reasonably believes poses an imminent threat to life or limb.        (5) A person on the station grounds or in the depot of a railroad carrier:            (A) as a passenger; or            (B) for the purpose of transacting lawful business.        (6) A:            (A) person; or            (B) person's:                (i) family member;                (ii) invitee;                (iii) employee;                (iv) agent; or                (v) independent contractor;        going on a railroad's right-of-way for the purpose of crossing at a private crossing site approved by the railroad carrier to obtain access to land that the person owns, leases, or operates.        (7) A person having written permission from the railroad carrier to go on specified railroad property.        (8) A representative of the Indiana department of transportation while engaged in the performance of official duties.        (9) A representative of the federal Railroad Administration while engaged in the performance of official duties.        (10) A representative of the National Transportation Safety Board while engaged in the performance of official duties.

IC 35-43-4    Chapter 4. Theft, Conversion, and Receiving Stolen Property

IC 35-43-4-1Definitions     Sec. 1. (a) As used in this chapter, "exert control over property" means to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property.    (b) Under this chapter, a person's control over property of another person is "unauthorized" if it is exerted:        (1) without the other person's consent;        (2) in a manner or to an extent other than that to which the other person has consented;

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        (3) by transferring or encumbering other property while failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of that other property;        (4) by creating or confirming a false impression in the other person;        (5) by failing to correct a false impression that the person knows is influencing the other person, if the person stands in a relationship of special trust to the other person;        (6) by promising performance that the person knows will not be performed;        (7) by expressing an intention to damage the property or impair the rights of any other person; or        (8) by transferring or reproducing:            (A) recorded sounds; or            (B) a live performance;without consent of the owner of the master recording or the live performance, with intent to distribute the reproductions for a profit.    (c) As used in this chapter, "receiving" means acquiring possession or control of or title to property, or lending on the security of property.As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.44; Acts 1979, P.L.300, SEC.1; P.L.180-1991, SEC.7.

IC 35-43-4-2Theft; receiving stolen property     Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony. However, the offense is a Class C felony if:        (1) the fair market value of the property is at least one hundred thousand dollars ($100,000); or        (2) the property that is the subject of the theft is a valuable metal (as defined in IC 25-37.5-1-1) and:            (A) relates to transportation safety;            (B) relates to public safety; or            (C) is taken from a:

                (i) hospital or other health care facility;                (ii) telecommunications provider;                (iii) public utility (as defined in IC 32-24-1-5.9(a)); or                (iv) key facility;        and the absence of the property creates a substantial risk of bodily injury to a person.    (b) A person who knowingly or intentionally receives, retains, or disposes of the property of another person that has been the subject of theft commits receiving stolen property, a Class D felony. However, the offense is a Class C felony if:        (1) the fair market value of the property is at least one hundred thousand dollars ($100,000); or        (2) the property that is the subject of the theft is a valuable metal (as defined in IC 25-37.5-1-1) and:            (A) relates to transportation safety;            (B) relates to public safety; or            (C) is taken from a:

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                (i) hospital or other health care facility;                (ii) telecommunications provider;                (iii) public utility (as defined in IC 32-24-1-5.9(a)); or                (iv) key facility;        and the absence of the property creates a substantial risk of bodily injury to a person.As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.45; Acts 1979, P.L.300, SEC.2; P.L.320-1985, SEC.1; P.L.158-2009, SEC.8.

IC 35-43-4-2.5Auto theft; receiving stolen auto parts     Sec. 2.5. (a) As used in this section, "motor vehicle" has the meaning set forth in IC 9-13-2-105(a).    (b) A person who knowingly or intentionally exerts unauthorized control over the motor vehicle of another person, with intent to deprive the owner of:        (1) the vehicle's value or use; or        (2) a component part (as defined in IC 9-13-2-34) of the vehicle;commits auto theft, a Class D felony. However, the offense is a Class C felony if the person has a prior conviction of an offense under this subsection or subsection (c).    (c) A person who knowingly or intentionally receives, retains, or disposes of a motor vehicle or any part of a motor vehicle of another person that has been the subject of theft commits receiving stolen auto parts, a Class D felony. However, the offense is a Class C felony if the person has a prior conviction of an offense under this subsection or subsection (b).As added by P.L.321-1985, SEC.1. Amended by P.L.136-1987, SEC.6; P.L.2-1991, SEC.106.

IC 35-43-4-2.7Unlawful entry of motor vehicle; defense; rebuttable presumption     Sec. 2.7. (a) This section does not apply to the following:        (1) A public safety officer (as defined in IC 35-47-4.5-3) or state police motor carrier inspector acting within the scope of the officer's or inspector's duties.        (2) A motor vehicle that must be moved because the motor vehicle is abandoned, inoperable, or improperly parked.        (3) An employee or agent of an entity that possesses a valid lien on a motor vehicle who is expressly authorized by the lienholder to repossess the motor vehicle based upon the failure of the owner or lessee of the motor vehicle to abide by the terms and conditions of the loan or lease agreement.    (b) As used in this section, "authorized operator" means a person who is authorized to operate a motor vehicle by an owner or a lessee of the motor vehicle.    (c) As used in this section, "motor vehicle" has the meaning set forth in IC 9-13-2-105(a).    (d) A person who:        (1) enters a motor vehicle knowing that the person does not have the permission of an owner, a lessee, or an authorized operator of the motor vehicle to enter the motor vehicle; and        (2) does not have a contractual interest in the motor vehicle;commits unauthorized entry of a motor vehicle, a Class B misdemeanor.    (e) The offense under subsection (d) is:        (1) a Class A misdemeanor if the motor vehicle has visible steering column damage or ignition switch alteration as a result of an act described in subsection (d)(1); or

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        (2) a Class D felony if a person occupies the motor vehicle while the motor vehicle is used to further the commission of a crime, if the person knew or should have known that a person intended to use the motor vehicle in the commission of a crime.    (f) It is a defense to a prosecution under this section that the accused person reasonably believed that the person's entry into the vehicle was necessary to prevent bodily injury or property damage.    (g) There is a rebuttable presumption that the person did not have the permission of an owner, a lessee, or an authorized operator of the motor vehicle to enter the motor vehicle if the motor vehicle has visible steering column damage or ignition switch alteration.As added by P.L.143-2005, SEC.1.

IC 35-43-4-3Conversion     Sec. 3. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.    (b) The offense under subsection (a) is a Class D felony if committed by a person who exerts unauthorized control over the motor vehicle of another person with the intent to use the motor vehicle to assist the person in the commission of a crime.    (c) The offense under subsection (a) is a Class C felony if:        (1) committed by a person who exerts unauthorized control over the motor vehicle of another person; and        (2) the person uses the motor vehicle to assist the person in the commission of a felony.As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.46; P.L.143-2005, SEC.2.

IC 35-43-5     Chapter 5. Forgery, Fraud, and Other Deceptions

IC 35-43-5-2

Forgery; counterfeiting; application fraud     Sec. 2. (a) A person who knowingly or intentionally:        (1) makes or utters a written instrument in such a manner that it purports to have been made:            (A) by another person;            (B) at another time;            (C) with different provisions; or            (D) by authority of one who did not give authority; or        (2) possesses more than one (1) written instrument knowing that the written instruments were made in a manner that they purport to have been made:            (A) by another person;            (B) at another time;            (C) with different provisions; or            (D) by authority of one who did not give authority;commits counterfeiting, a Class D felony.

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    (b) A person who, with intent to defraud, makes, utters, or possesses a written instrument in such a manner that it purports to have been made:        (1) by another person;        (2) at another time;        (3) with different provisions; or        (4) by authority of one who did not give authority;commits forgery, a Class C felony.    (c) This subsection applies to a person who applies for a driver's license (as defined in IC 9-13-2-48). A person who:        (1) knowingly or intentionally uses a false or fictitious name or gives a false or fictitious address in an application for a driver's license or for a renewal or a duplicate of a driver's license; or        (2) knowingly or intentionally makes a false statement or conceals a material fact or otherwise commits fraud in an application for a driver's license;commits application fraud, a Class D felony.    (d) This subsection applies to a person who applies for a state identification card (as issued under IC 9-24-16). A person who:        (1) knowingly or intentionally uses false information in an application for an identification card or for a renewal or duplicate of an identification card; or        (2) knowingly or intentionally makes a false statement or otherwise commits fraud in an application for an identification card;commits application fraud, a Class D felony.

IC 35-43-5-3Deception     Sec. 3. (a) A person who:        (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent;        (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity;        (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted;        (4) knowingly or intentionally, in the regular course of business, either:            (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or            (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity;        (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service;        (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property;

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        (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine;        (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug;        (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;        (10) with intent to defraud, misrepresents a person as being a physician licensed under IC 25-22.5; or        (11) knowingly and intentionally defrauds another person furnishing cable TV service by avoiding paying compensation for that service by any scheme or device or by tampering with facilities or equipment of the person furnishing the service;commits deception, a Class A misdemeanor.    (b) In determining whether an advertisement is false, misleading, or deceptive under subsection (a)(9), there shall be considered, among other things, not only representations contained or suggested in the advertisement, by whatever means, including device or sound, but also the extent to which the advertisement fails to reveal material facts in the light of the representations.As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.51; Acts 1978, P.L.144, SEC.5; P.L.182-1984, SEC.4; P.L.237-1989, SEC.2; P.L.247-1993, SEC.2; P.L.222-1996, SEC.1.

IC 35-43-5-3.5Identity deception     Sec. 3.5. (a) Except as provided in subsection (c), a person who knowingly or intentionally obtains, possesses, transfers, or uses the identifying information of another person, including the identifying information of a person who is deceased:        (1) without the other person's consent; and        (2) with intent to:            (A) harm or defraud another person;            (B) assume another person's identity; or            (C) profess to be another person;commits identity deception, a Class D felony.    (b) However, the offense defined in subsection (a) is a Class C felony if:        (1) a person obtains, possesses, transfers, or uses the identifying information of more than one hundred (100) persons;        (2) the fair market value of the fraud or harm caused by the offense is at least fifty thousand dollars ($50,000); or        (3) a person obtains, possesses, transfers, or uses the identifying information of a person who is less than eighteen (18) years of age and is:            (A) the person's son or daughter;            (B) a dependent of the person;            (C) a ward of the person; or            (D) an individual for whom the person is a guardian.    (c) The conduct prohibited in subsections (a) and (b) does not apply to:        (1) a person less than twenty-one (21) years of age who uses the identifying information of another person to acquire an alcoholic beverage (as defined in IC 7.1-1-3-5);

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        (2) a minor (as defined in IC 35-49-1-4) who uses the identifying information of another person to acquire:            (A) a cigarette or tobacco product (as defined in IC 6-7-2-5);            (B) a periodical, a videotape, or other communication medium that contains or depicts nudity (as defined in IC 35-49-1-5);            (C) admittance to a performance (live or film) that prohibits the attendance of the minor based on age; or            (D) an item that is prohibited by law for use or consumption by a minor; or        (3) any person who uses the identifying information for a lawful purpose.    (d) It is not a defense in a prosecution under subsection (a) or (b) that no person was harmed or defrauded.As added by P.L.180-2001, SEC.2. Amended by P.L.22-2003, SEC.2; P.L.125-2006, SEC.9; P.L.137-2009, SEC.14.

IC 35-43-5-4Fraud     Sec. 4. A person who:        (1) with intent to defraud, obtains property by:            (A) using a credit card, knowing that the credit card was unlawfully obtained or retained;            (B) using a credit card, knowing that the credit card is forged, revoked, or expired;            (C) using, without consent, a credit card that was issued to another person;            (D) representing, without the consent of the credit card holder, that the person is the authorized holder of the credit card; or            (E) representing that the person is the authorized holder of a credit card when the card has not in fact been issued;        (2) being authorized by an issuer to furnish property upon presentation of a credit card, fails to furnish the property and, with intent to defraud the issuer or the credit card holder, represents in writing to the issuer that the person has furnished the property;        (3) being authorized by an issuer to furnish property upon presentation of a credit card, furnishes, with intent to defraud the issuer or the credit card holder, property upon presentation of a credit card, knowing that the credit card was unlawfully obtained or retained or that the credit card is forged, revoked, or expired;        (4) not being the issuer, knowingly or intentionally sells a credit card;        (5) not being the issuer, receives a credit card, knowing that the credit card was unlawfully obtained or retained or that the credit card is forged, revoked, or expired;        (6) with intent to defraud, receives a credit card as security for debt;        (7) receives property, knowing that the property was obtained in violation of subdivision (1) of this section;        (8) with intent to defraud the person's creditor or purchaser, conceals, encumbers, or transfers property;        (9) with intent to defraud, damages property; or        (10) knowingly or intentionally:            (A) sells;            (B) rents;            (C) transports; or            (D) possesses;

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        a recording for commercial gain or personal financial gain that does not conspicuously display the true name and address of the manufacturer of the recording;commits fraud, a Class D felony.As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.52; Acts 1978, P.L.82, SEC.3; P.L.180-1991, SEC.9; P.L.193-1991, SEC.3; P.L.1-1992, SEC.180; P.L.180-2001, SEC.3; P.L.181-2005, SEC.6.

IC 35-43-5-5Check deception     Sec. 5. (a) A person who knowingly or intentionally issues or delivers a check, a draft, or an order on a credit institution for the payment of or to acquire money or other property, knowing that it will not be paid or honored by the credit institution upon presentment in the usual course of business, commits check deception, a Class A misdemeanor. However, the offense is a Class D felony if the amount of the check, draft, or order is at least two thousand five hundred dollars ($2,500) and the property acquired by the person was a motor vehicle.

    (b) An unpaid and dishonored check, a draft, or an order that has the drawee's refusal to pay and reason printed, stamped, or written on or attached to it constitutes prima facie evidence:        (1) that due presentment of it was made to the drawee for payment and dishonor thereof; and        (2) that it properly was dishonored for the reason stated.    (c) The fact that a person issued or delivered a check, a draft, or an order, payment of which was refused by the drawee, constitutes prima facie evidence that the person knew that it would not be paid or honored. In addition, evidence that a person had insufficient funds in or no account with a drawee credit institution constitutes prima facie evidence that the person knew that the check, draft, or order would not be paid or honored.    (d) The following two (2) items constitute prima facie evidence of the identity of the maker of a check, draft, or order if at the time of its acceptance they are obtained and recorded, either on the check, draft, or order itself or on file, by the payee:        (1) Name and residence, business, or mailing address of the maker.        (2) Motor vehicle operator's license number, Social Security number, home telephone number, or place of employment of the maker.    (e) It is a defense under subsection (a) if a person who:        (1) has an account with a credit institution but does not have sufficient funds in that account; and        (2) issues or delivers a check, a draft, or an order for payment on that credit institution;pays the payee or holder the amount due, together with protest fees and any service fee or charge, which may not exceed the greater of twenty-seven dollars and fifty cents ($27.50) or five percent (5%) (but not more than two hundred fifty dollars ($250)) of the amount due, that may be charged by the payee or holder, within ten (10) days after the date of mailing by the payee or holder of notice to the person that the check, draft, or order has not been paid by the credit institution. Notice sent in the manner set forth in IC 26-2-7-3 constitutes notice to the person that the check, draft, or order has not been paid by the credit institution. The payee or holder of a check, draft, or order that has been dishonored incurs no civil or criminal liability for sending

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notice under this subsection.    (f) A person does not commit a crime under subsection (a) when:        (1) the payee or holder knows that the person has insufficient funds to ensure payment or that the check, draft, or order is postdated; or        (2) insufficiency of funds or credit results from an adjustment to the person's account by the credit institution without notice to the person.

IC 35-43-5-12Check fraud     Sec. 12. (a) As used in this section, "financial institution" refers to a state or federally chartered bank, savings bank, savings association, or credit union.    (b) A person who knowingly or intentionally obtains property, through a scheme or artifice, with intent to defraud:        (1) by issuing or delivering a check, a draft, an electronic debit, or an order on a financial institution:            (A) knowing that the check, draft, order, or electronic debit will not be paid or honored by the financial institution upon presentment in the usual course of business;            (B) using false or altered evidence of identity or residence;            (C) using a false or an altered account number; or            (D) using a false or an altered check, draft, order or electronic instrument;        (2) by:            (A) depositing the minimum initial deposit required to open an account; and            (B) either making no additional deposits or making insufficient additional deposits to insure debits to the account; or        (3) by opening accounts with more than one (1) financial institution in either a consecutive or concurrent time period;commits check fraud, a Class D felony. However, the offense is a Class C felony if the person has a prior unrelated conviction under this section or the aggregate amount of property obtained is at least twenty-five thousand dollars ($25,000).As added by P.L.161-1994, SEC.1. Amended by P.L.79-1998, SEC.105.

IC 35-50SENTENCES

IC 35-50-1 Chapter 1. General Provisions

IC 35-50-1-1Authority to sentence (Author’s note: Except for jury verdict of death or life w/o parole.)     Sec. 1. The court shall fix the penalty of and sentence a person convicted of an offense.As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.110.

Death Sentence and Sentences for Felonies and Habitual Offenders

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IC 35-50-2-1Definitions     Sec. 1. (a) As used in this chapter, "Class D felony conviction" means a conviction of a Class D felony in Indiana and a conviction, in any other jurisdiction at any time, with respect to which the convicted person might have been imprisoned for more than one (1) year. However, it does not include a conviction with respect to which the person has been pardoned, or a conviction of a Class A misdemeanor under section 7(b) of this chapter.    (b) As used in this chapter, "felony conviction" means a conviction, in any jurisdiction at any time, with respect to which the convicted person might have been imprisoned for more than one (1) year. However, it does not include a conviction with respect to which the person has been pardoned, or a conviction of a Class A misdemeanor under section 7(b) of this chapter.    (c) As used in this chapter, "minimum sentence" means:        (1) for murder, forty-five (45) years;        (2) for a Class A felony, twenty (20) years;        (3) for a Class B felony, six (6) years;        (4) for a Class C felony, two (2) years; and        (5) for a Class D felony, one-half (1/2) year.As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.114; P.L.334-1983, SEC.1; P.L.98-1988, SEC.8; P.L.243-2001, SEC.2 and P.L.291-2001, SEC.225.

IC 35-50-2-1.3Advisory sentences     Sec. 1.3. (a) For purposes of sections 3 through 7 of this chapter, "advisory sentence" means a guideline sentence that the court may voluntarily consider as the midpoint between the maximum sentence and the minimum sentence.    (b) Except as provided in subsection (c), a court is not required to use an advisory sentence.    (c) In imposing:        (1) consecutive sentences for felony convictions that are not crimes of violence (as defined in IC 35-50-1-2(a)) arising out of an episode of criminal conduct, in accordance with IC 35-50-1-2;        (2) an additional fixed term to an habitual offender under section 8 of this chapter; or        (3) an additional fixed term to a repeat sexual offender under section 14 of this chapter;a court is required to use the appropriate advisory sentence in imposing a consecutive sentence or an additional fixed term. However, the court is not required to use the advisory sentence in imposing the sentence for the underlying offense.     (d) This section does not require a court to use an advisory sentence in imposing consecutive sentences for felony convictions that do not arise out of an episode of criminal conduct.As added by P.L.71-2005, SEC.5. Amended by P.L.178-2007, SEC.4.

IC 35-50-2-3Murder     Sec. 3. (a) A person who commits murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).    (b) Notwithstanding subsection (a), a person who was:        (1) at least eighteen (18) years of age at the time the murder was committed may be

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sentenced to:            (A) death; or            (B) life imprisonment without parole; and        (2) at least sixteen (16) years of age but less than eighteen (18) years of age at the time the murder was committed may be sentenced to life imprisonment without parole;under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is an individual with mental retardation.As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.116; P.L.332-1987, SEC.1; P.L.250-1993, SEC.1; P.L.164-1994, SEC.2; P.L.158-1994, SEC.5; P.L.2-1995, SEC.128; P.L.148-1995, SEC.4; P.L.117-2002, SEC.1; P.L.71-2005, SEC.6; P.L.99-2007, SEC.212.

IC 35-50-2-4Class A felony     Sec. 4. A person who commits a Class A felony shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.117; P.L.164-1994, SEC.3; P.L.148-1995, SEC.5; P.L.71-2005, SEC.7.

IC 35-50-2-5Class B felony     Sec. 5. A person who commits a Class B felony shall be imprisoned for a fixed term of between six (6) and twenty (20) years, with the advisory sentence being ten (10) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.118; P.L.71-2005, SEC.8.

IC 35-50-2-6

Class C felony; commission of nonsupport of child as Class D felony     Sec. 6. (a) A person who commits a Class C felony shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).    (b) Notwithstanding subsection (a), if a person has committed nonsupport of a child as a Class C felony under IC 35-46-1-5, upon motion of the prosecuting attorney, the court may enter judgment of conviction of a Class D felony under IC 35-46-1-5 and sentence the person accordingly. The court shall enter in the record detailed reasons for the court's action when the court enters a judgment of conviction of a Class D felony under this subsection.As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.119; P.L.167-1990, SEC.1; P.L.213-1996, SEC.5; P.L.71-2005, SEC.9.

IC 35-50-2-7

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Class D felony     Sec. 7. (a) A person who commits a Class D felony shall be imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being one and one-half (1 1/2) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).    (b) Notwithstanding subsection (a), if a person has committed a Class D felony, the court may enter judgment of conviction of a Class A misdemeanor and sentence accordingly. However, the court shall enter a judgment of conviction of a Class D felony if:        (1) the court finds that:            (A) the person has committed a prior, unrelated felony for which judgment was entered as a conviction of a Class A misdemeanor; and            (B) the prior felony was committed less than three (3) years before the second felony was committed;        (2) the offense is domestic battery as a Class D felony under IC 35-42-2-1.3; or        (3) the offense is possession of child pornography (IC 35-42-4-4(c)).The court shall enter in the record, in detail, the reason for its action whenever it exercises the power to enter judgment of conviction of a Class A misdemeanor granted in this subsection.As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.120; Acts 1982, P.L.204, SEC.40; P.L.334-1983, SEC.3; P.L.136-1987, SEC.7; P.L.167-1990, SEC.2; P.L.188-1999, SEC.9; P.L.98-2003, SEC.3; P.L.71-2005, SEC.10.

IC 35-50-2-9Death penalty sentencing procedure     Sec. 9. (a) The state may seek either a death sentence or a sentence of life imprisonment without parole for murder by alleging, on a page separate from the rest of the charging instrument, the existence of at least one (1) of the aggravating circumstances listed in subsection (b). In the sentencing hearing after a person is convicted of murder, the state must prove beyond a reasonable doubt the existence of at least one (1) of the aggravating circumstances alleged. However, the state may not proceed against a defendant under this section if a court determines at a pretrial hearing under IC 35-36-9 that the defendant is an individual with mental retardation.    (b) The aggravating circumstances are as follows:        (1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following:            (A) Arson (IC 35-43-1-1).            (B) Burglary (IC 35-43-2-1).            (C) Child molesting (IC 35-42-4-3).            (D) Criminal deviate conduct (IC 35-42-4-2).            (E) Kidnapping (IC 35-42-3-2).            (F) Rape (IC 35-42-4-1).            (G) Robbery (IC 35-42-5-1).            (H) Carjacking (IC 35-42-5-2).            (I) Criminal gang activity (IC 35-45-9-3). (J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).

        (2) The defendant committed the murder by the unlawful detonation of an explosive with intent to injure person or damage property.

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        (3) The defendant committed the murder by lying in wait.        (4) The defendant who committed the murder was hired to kill.        (5) The defendant committed the murder by hiring another person to kill.        (6) The victim of the murder was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge, or law enforcement officer, and either:            (A) the victim was acting in the course of duty; or            (B) the murder was motivated by an act the victim performed while acting in the course of duty.        (7) The defendant has been convicted of another murder.        (8) The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.        (9) The defendant was:            (A) under the custody of the department of correction;            (B) under the custody of a county sheriff;            (C) on probation after receiving a sentence for the commission of a felony; or            (D) on parole;        at the time the murder was committed.        (10) The defendant dismembered the victim.        (11) The defendant burned, mutilated, or tortured the victim while the victim was alive.        (12) The victim of the murder was less than twelve (12) years of age.        (13) The victim was a victim of any of the following offenses for which the defendant was convicted:            (A) Battery as a Class D felony or as a Class C felony under IC 35-42-2-1.            (B) Kidnapping (IC 35-42-3-2).            (C) Criminal confinement (IC 35-42-3-3).            (D) A sex crime under IC 35-42-4.        (14) The victim of the murder was listed by the state or known by the defendant to be a witness against the defendant and the defendant committed the murder with the intent to prevent the person from testifying.        (15) The defendant committed the murder by intentionally discharging a firearm (as defined in IC 35-47-1-5):            (A) into an inhabited dwelling; or            (B) from a vehicle.        (16) The victim of the murder was pregnant and the murder resulted in the intentional killing of a fetus that has attained viability (as defined in IC 16-18-2-365).    (c) The mitigating circumstances that may be considered under this section are as follows:        (1) The defendant has no significant history of prior criminal conduct.        (2) The defendant was under the influence of extreme mental or emotional disturbance when the murder was committed.

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        (3) The victim was a participant in or consented to the defendant's conduct.        (4) The defendant was an accomplice in a murder committed by another person, and the defendant's participation was relatively minor.        (5) The defendant acted under the substantial domination of another person.        (6) The defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.        (7) The defendant was less than eighteen (18) years of age at the time the murder was committed.        (8) Any other circumstances appropriate for consideration.    (d) If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing. The jury or the court may consider all the evidence introduced at the trial stage of the proceedings, together with new evidence presented at the sentencing hearing. The court shall instruct the jury concerning the statutory penalties for murder and any other offenses for which the defendant was convicted, the potential for consecutive or concurrent sentencing, and the availability of good time credit and clemency. The court shall instruct the jury that, in order for the jury to recommend to the court that the death penalty or life imprisonment without parole should be imposed, the jury must find at least one (1) aggravating circumstance beyond a reasonable doubt as described in subsection (l) and shall provide a special verdict form for each aggravating circumstance alleged. The defendant may present any additional evidence relevant to:        (1) the aggravating circumstances alleged; or        (2) any of the mitigating circumstances listed in subsection (c).    (e) For a defendant sentenced after June 30, 2002, except as provided by IC 35-36-9, if the hearing is by jury, the jury shall recommend to the court whether the death penalty or life imprisonment without parole, or neither, should be imposed. The jury may recommend:        (1) the death penalty; or        (2) life imprisonment without parole;only if it makes the findings described in subsection (l). If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly. After a court pronounces sentence, a representative of the victim's family and friends may present a statement regarding the impact of the crime on family and friends.

The impact statement may be submitted in writing or given orally by the representative. The statement shall be given in the presence of the defendant.    (f) If a jury is unable to agree on a sentence recommendation after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.    (g) If the hearing is to the court alone, except as provided by IC 35-36-9, the court shall:

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        (1) sentence the defendant to death; or        (2) impose a term of life imprisonment without parole;only if it makes the findings described in subsection (l).    (h) If a court sentences a defendant to death, the court shall order the defendant's execution to be carried out not later than one (1) year and one (1) day after the date the defendant was convicted. The supreme court has exclusive jurisdiction to stay the execution of a death sentence. If the supreme court stays the execution of a death sentence, the supreme court shall order a new date for the defendant's execution.    (i) If a person sentenced to death by a court files a petition for post-conviction relief, the court, not later than ninety (90) days after the date the petition is filed, shall set a date to hold a hearing to consider the petition. If a court does not, within the ninety (90) day period, set the date to hold the hearing to consider the petition, the court's failure to set the hearing date is not a basis for additional post-conviction relief. The attorney general shall answer the petition for post-conviction relief on behalf of the state. At the request of the attorney general, a prosecuting attorney shall assist the attorney general. The court shall enter written findings of fact and conclusions of law concerning the petition not later than ninety (90) days after the date the hearing concludes. However, if the court determines that the petition is without merit, the court may dismiss the petition within ninety (90) days without conducting a hearing under this subsection.    (j) A death sentence is subject to automatic review by the supreme court. The review, which shall be heard under rules adopted by the supreme court, shall be given priority over all other cases. The supreme court's review must take into consideration all claims that the:        (1) conviction or sentence was in violation of the:            (A) Constitution of the State of Indiana; or            (B) Constitution of the United States;        (2) sentencing court was without jurisdiction to impose a sentence; and        (3) sentence:            (A) exceeds the maximum sentence authorized by law; or            (B) is otherwise erroneous.If the supreme court cannot complete its review by the date set by the sentencing court for the defendant's execution under subsection (h), the supreme court shall stay the execution of the death sentence and set a new date to carry out the defendant's execution.    (k) A person who has been sentenced to death and who has completed state post-conviction review proceedings may file a written petition with the supreme court seeking to present new evidence challenging the person's guilt or the appropriateness of the death sentence if the person serves notice on the attorney general. The supreme court shall determine, with or without a hearing, whether the person has presented previously undiscovered evidence that undermines confidence in the conviction or the death sentence. If necessary, the supreme court may remand the case to the trial court for an evidentiary hearing to consider the new evidence and its effect on the person's conviction and death sentence. The supreme court may not make a determination in the person's favor nor make a decision to remand the case to the trial court for an evidentiary hearing without first providing the attorney general with an opportunity to be heard on the matter.    (l) Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that:        (1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating

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circumstances listed in subsection (b) exists; and        (2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.As added by Acts 1977, P.L.340, SEC.122. Amended by P.L.336-1983, SEC.1; P.L.212-1986, SEC.1; P.L.332-1987, SEC.2; P.L.320-1987, SEC.2; P.L.296-1989, SEC.2; P.L.138-1989, SEC.6; P.L.1-1990, SEC.354; P.L.230-1993, SEC.5; P.L.250-1993, SEC.2; P.L.158-1994, SEC.7; P.L.306-1995, SEC.1; P.L.228-1996, SEC.1; P.L.216-1996, SEC.25; P.L.261-1997, SEC.7; P.L.80-2002, SEC.1; P.L.117-2002, SEC.2; P.L.1-2003, SEC.97; P.L.147-2003, SEC.1; P.L.1-2006, SEC.550; P.L.99-2007, SEC.213.

IC 35-50-2-11Firearm used in commission of offense; separate charge; additional sentence     Sec. 11. (a) As used in this section, "firearm" has the meaning set forth in IC 35-47-1-5.    (b) As used in this section, "offense" means:        (1) a felony under IC 35-42 that resulted in death or serious bodily injury;        (2) kidnapping; or        (3) criminal confinement as a Class B felony.    (c) The state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed an offense sentenced to an additional fixed term of imprisonment if the state can show beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense.    (d) If the person was convicted of the offense in a jury trial, the jury shall reconvene to hear evidence in the enhancement hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall hear evidence in the enhancement hearing.    (e) If the jury (if the hearing is by jury) or the court (if the hearing is to the court alone) finds that the state has proved beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense, the court may sentence the person to an additional fixed term of imprisonment of five (5) years.As added by P.L.140-1994, SEC.15. Amended by P.L.203-1996, SEC.9; P.L.71-2005, SEC.13.

Sentences for Misdemeanors

IC 35-50-3-1Suspension; probation     Sec. 1. (a) The court may suspend any part of a sentence for a misdemeanor.    (b) Except as provided in subsection (c), whenever the court suspends in whole or in part a sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter. However, the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.    (c) Whenever the court suspends a sentence for a misdemeanor, if the court finds that the use or abuse of alcohol, drugs, or harmful substances is a contributing factor or a material element of the offense, the court may place the person on probation under IC 35-38-2 for a fixed period of

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not more than two (2) years. However, a court may not place a person on probation for a period of more than twelve (12) months in the absence of a report that substantiates the need for a period of probation that is longer than twelve (12) months for the purpose of completing a course of substance abuse treatment. A probation user's fee that exceeds fifty percent (50%) of the maximum probation user's fee allowed under IC 35-38-2-1 may not be required beyond the first twelve (12) months of probation.IC 35-50-3-2Class A misdemeanor     Sec. 2. A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year; in addition, he may be fined not more than five thousand dollars ($5,000).IC 35-50-3-3Class B misdemeanor     Sec. 3. A person who commits a Class B misdemeanor shall be imprisoned for a fixed term of not more than one hundred eighty (180) days; in addition, he may be fined not more than one thousand dollars ($1,000).IC 35-50-3-4Class C misdemeanor     Sec. 4. A person who commits a Class C misdemeanor shall be imprisoned for a fixed term of not more than sixty (60) days; in addition, he may be fined not more than five hundred dollars ($500).

IC 35-33-1

Chapter 1. Arrest

IC 35-33-1-1Law enforcement officer; federal enforcement officer     Sec. 1. (a) A law enforcement officer may arrest a person when the officer has:        (1) a warrant commanding that the person be arrested;        (2) probable cause to believe the person has committed or attempted to commit, or is committing or attempting to commit, a felony;        (3) probable cause to believe the person has violated the provisions of IC 9-26-1-1(1), IC 9-26-1-1(2), IC 9-26-1-2(1), IC 9-26-1-2(2), IC 9-26-1-3, IC 9-26-1-4, or IC 9-30-5;        (4) probable cause to believe the person is committing or attempting to commit a misdemeanor in the officer's presence;        (5) probable cause to believe the person has committed a:            (A) battery resulting in bodily injury under IC 35-42-2-1; or            (B) domestic battery under IC 35-42-2-1.3.        The officer may use an affidavit executed by an individual alleged to have direct knowledge of the incident alleging the elements of the offense of battery to establish probable cause;        (6) probable cause to believe that the person violated IC 35-46-1-15.1 (invasion of privacy);        (7) probable cause to believe that the person violated IC 35-47-2-1 (carrying a handgun

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without a license) or IC 35-47-2-22 (counterfeit handgun license);        (8) probable cause to believe that the person is violating or has violated an order issued under IC 35-50-7;        (9) probable cause to believe that the person is violating or has violated IC 35-47-6-1.1 (undisclosed transport of a dangerous device); or        (10) probable cause to believe that the person is:            (A) violating or has violated IC 35-45-2-5 (interference with the reporting of a crime); and            (B) interfering with or preventing the reporting of a crime involving domestic or family violence (as defined in IC 34-6-2-34.5).    (b) A person who:        (1) is employed full time as a federal enforcement officer;        (2) is empowered to effect an arrest with or without warrant for a violation of the United States Code; and        (3) is authorized to carry firearms in the performance of the person's duties;may act as an officer for the arrest of offenders against the laws of this state where the person reasonably believes that a felony has been or is about to be committed or attempted in the person's presence.

IC 35-33-1-1.5Crime involving domestic or family violence; duties of law enforcement officers; confiscation of firearm, ammunition, or deadly weapon     Sec. 1.5. (a) A law enforcement officer responding to the scene of an alleged crime involving domestic or family violence shall use all reasonable means to prevent further violence, including the following:        (1) Transporting or obtaining transportation for the alleged victim and each child to a designated safe place to meet with a domestic violence counselor, local family member, or friend.        (2) Assisting the alleged victim in removing toiletries, medication, and necessary clothing.        (3) Giving the alleged victim immediate and written notice of the rights under IC 35-40.    (b) A law enforcement officer may confiscate and remove a firearm, ammunition, or a deadly weapon from the scene if the law enforcement officer has:        (1) probable cause to believe that a crime involving domestic or family violence has occurred;        (2) a reasonable belief that the firearm, ammunition, or deadly weapon:            (A) exposes the victim to an immediate risk of serious bodily injury; or            (B) was an instrumentality of the crime involving domestic or family violence; and        (3) observed the firearm, ammunition, or deadly weapon at the scene during the response.    (c) If a firearm, ammunition, or a deadly weapon is removed from the scene under subsection (b), the law enforcement officer shall provide for the safe storage of the firearm, ammunition, or deadly weapon during the pendency of a proceeding related to the alleged act of domestic or family violence.As added by P.L.133-2002, SEC.60.

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IC 35-33-1-1.7Mandatory hold on person arrested for domestic violence     Sec. 1.7. (a) A facility having custody of a person arrested for a crime of domestic violence (as described in IC 35-41-1-6.3) shall keep the person in custody for at least eight (8) hours from the time of the arrest.

    (b) A person described in subsection (a) may not be released on bail until at least eight (8) hours from the time of the person's arrest.As added by P.L.44-2008, SEC.1.

IC 35-33-1-2Judge     Sec. 2. A judge may arrest, or order the arrest of a person in his presence, when he has probable cause to believe the person has committed a crime.As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-1-3Coroner     Sec. 3. A coroner has the authority to arrest any person when performing the duties of the sheriff under IC 36-2-14-4 and authority to arrest the sheriff under IC 36-2-14-5.IC 35-33-1-4Any person     Sec. 4. (a) Any person may arrest any other person if:        (1) the other person committed a felony in his presence;        (2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or        (3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.    (b) A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.    (c) The law enforcement officer may process the arrested person as if the officer had arrested him. The officer who receives or processes a person arrested by another under this section is not liable for false arrest or false imprisonment.As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.7.

IC 35-33-1-5Definition     Sec. 5. Arrest is the taking of a person into custody, that he may be held to answer for a crime.As added by P.L.320-1983, SEC.3.

IC 35-33-1-6Chart to determine detention time before release pending trial     Sec. 6. A law enforcement agency may use the following chart to determine the minimum number of hours that a person arrested for an alcohol-related offense should be detained before his release pending trial:

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HOURS AFTER INITIAL READING

BLOOD OR IS TAKEN

BREATH

ALCOHOLLEVEL INGRAMS    1    2    3    4    5    6    7    8    9    10    11    12    13    14.09     .075 .06 .045 .03 .015 .00 .000 .00 .000 .00 .000 .00 .000 .00.10     .085 .07 .055 .04 .025 .01 .000 .00 .000 .00 .000 .00 .000 .00.11     .095 .08 .065 .05 .035 .02 .005 .00 .000 .00 .000 .00 .000 .00.12     .105 .09 .075 .06 .045 .03 .015 .00 .000 .00 .000 .00 .000 .00.13     .115 .10 .085 .07 .055 .04 .025 .01 .000 .00 .000 .00 .000 .00

.14     .125 .11 .095 .08 .065 .05 .035 .02 .005 .00 .000 .00 .000 .00

.15     .135 .12 .105 .09 .075 .06 .045 .03 .015 .00 .000 .00 .000 .00

.16     .145 .13 .115 .10 .085 .07 .055 .04 .025 .01 .000 .00 .000 .00 1    2    3    4    5    6    7    8    9    10    11    12    13    14

.17     .155 .14 .125 .11 .095 .08 .065 .05 .035 .02 .005 .00 .000 .00

.18     .165 .15 .135 .12 .105 .09 .075 .06 .045 .03 .015 .00 .000 .00

.19     .175 .16 .145 .13 .115 .10 .085 .07 .055 .04 .025 .01 .000 .00

.20     .185 .17 .155 .14 .125 .11 .095 .08 .065 .05 .035 .02 .005 .00

.21     .195 .18 .165 .15 .135 .12 .105 .09 .075 .06 .045 .03 .015 .00

.22     .205 .19 .175 .16 .145 .13 .115 .10 .085 .07 .055 .04 .025 .01

.23     .215 .20 .185 .17 .155 .14 .125 .11 .095 .08 .065 .05 .035 .02

.24     .225 .21 .195 .18 .165 .15 .135 .12 .105 .09 .075 .06 .045 .03

.25     .235 .22 .205 .19 .175 .16 .145 .13 .115 .10 .085 .07 .055 .04

.26     .245 .23 .215 .20 .185 .17 .155 .14 .125 .11 .095 .08 .065 .05Note: In order to find when a person will reach the legal blood or breath alcohol level, find the blood or breath alcohol level reading in the left hand column, go across and find where the blood or breath alcohol level reading is an alcohol concentration equivalent (as defined in IC 9-13-2-2.4) to below eight-hundredths (0.08) gram of alcohol per one hundred (100) milliliters of the person's blood or per two hundred ten (210) liters of the person's breath, then read up that column to find the minimum number of hours before the person can be released.

Chapter 2. Arrest Warrants

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IC 35-33-2-1Grounds; indictment or information filed; probable cause     Sec. 1. (a) Except as provided in chapter 4 of this article, whenever an indictment is filed and the defendant has not been arrested or otherwise brought within the custody of the court, the court, without making a determination of probable cause, shall issue a warrant for the arrest of the defendant.    (b) Whenever an information is filed and the defendant has not been arrested or otherwise brought within the custody of the court, the court shall issue a warrant for the arrest of the defendant after first determining that probable cause exists for the arrest.    (c) No warrant for arrest of a person may be issued until:        (1) an indictment has been found charging him with the commission of an offense; or        (2) a judge has determined that probable cause exists that the person committed a crime and an information has been filed charging him with a crime.As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-2-2Contents; form     Sec. 2. (a) A warrant of arrest shall:        (1) be in writing;        (2) specify the name of the person to be arrested, or if his name is unknown, shall designate such person by any name or description by which he can be identified with reasonable certainty;        (3) set forth the nature of the offense for which the warrant is issued;        (4) state the date and county of issuance;        (5) be signed by the clerk or the judge of the court with the title of his office;        (6) command that the person against whom the indictment or information was filed be arrested and brought before the court issuing the warrant, without unnecessary delay;        (7) specify the amount of bail, if any; and        (8) be directed to the sheriff of the county.    (b) An arrest warrant may be in substantially the following form:TO: ______________    You are hereby commanded to arrest ___________ forthwith, and hold that person to bail in the sum of _______ dollars, to answer in the _______ Court of ________ County, in the State of Indiana, an information or indictment for ____________.    And for want of bail commit him to the jail of the County, and thereafter without unnecessary delay to bring him before the said court.    IN WITNESS WHEREOF, I, ___________ (Clerk/Judge) of said

Court, hereto affix the seal thereof, and subscribe my name at __________ this ________ day of _______ A.D. 20__.

______________________

Clerk or Judge of the Court

IC 35-33-2-3

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Issuance; service or arrests; forcible entry; wrongful entry, recovery of damages     Sec. 3. (a) The warrant is issued to the sheriff of the county where the indictment or information is filed. This warrant may be served or arrests on it made:        (1) by any law enforcement officer;        (2) on any day of the week; and        (3) at any time of the day or night.    (b) A law enforcement officer may break open any outer or inner door or window in order to execute an arrest warrant, if he is not admitted following an announcement of his authority and purpose.    (c) The accused person shall be delivered to the sheriff of the county in which the indictment or information was filed, and the sheriff shall commit the accused person to jail or hold him to bail as provided in this article.    (d) A person or persons whose property is wrongfully damaged or whose person is wrongfully injured by any law enforcement officer or officers who wrongfully enter may recover such damage from the responsible authority and the law enforcement officer or officers as the court may determine. The action may be filed in the circuit court, superior court or county court in the county where the wrongful entry took place.As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.8; P.L.320-1983, SEC.4.

INVOLUNTARY DETENTIONS OF MENTALLY ILL

I. Involuntary Detention or Commitment

A. IC 12-26-1-1 refers to four types of involuntary detention or commitment: 1. Immediate Detention (24 hour) 2. Emergency Detention (72 hour) 3. Temporary Commitment (90 day) 4. Regular Commitment B. All of the above require that the individual be (1) mentally ill and (2) either (1) dangerous to self or others or gravely disabled (Immediate Detention not available if only gravely disabled).

II. Definitions:

A. Mental illness (IC 12-7-2-130): a psychiatric disorder that (1) substantially disturbs an individual’s thinking, feeling, or behavior and (2) impairs the individual’s ability to function. The term includes mental retardation, alcoholism, and addiction to narcotics or drugs. B. Dangerous (IC 12-7-2-53): a condition in which an individual as a result of mental illness presents a substantial risk that the individual will harm themselves or others.

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C. Gravely Disabled (IC 12-7-2-96): a condition in which an individual as a result of mental illness is in danger of coming to harm because the individual: 1. Is unable to provide for that individual’s food, clothing, shelter or other essential human needs; or 2. Has a substantial impairment or an obvious deterioration of that individual’s judgment, reasoning or behavior that results in the individual’s inability to function independently.

III. Immediate Detention (IC 12-26-4) (Commonly known as a 24 hour detention). Often used by a Crisis Intervention Team program. Note: This type of detention does not require the approval of a judge.

A. A law enforcement officer, having reasonable grounds to believe that: 1. An individual is (1) mentally ill and (2) dangerous and (3) in immediate need of hospitalization and treatment may: (a) Apprehend and transport the individual to the nearest appropriate facility (not a state institution) for emergency treatment to preserve the individual’s health and safety. (b) Charge the individual with an offense if applicable. The officer does not have immunity from civil liability but will not be liable if the officer has reasonable grounds to believe. The officer shall submit to the facility a written statement containing the basis for the officer’s conclusion that reasonable grounds exist for the detention. B. The detention may not be for more than 24 hours commencing from the time of admission to the facility. The facility shall provide emergency treatment. If the attending physician believes that the individual should be detained for more than 24 hours, an application for Emergency 72 hour Detention should be filed.

IV. Emergency Detention (IC 12-26-5) (Commonly known as a 72 hour detention).

A. Initiated by written application for detention. The application must contain (1) a statement from the applicant that the applicant believes the person is mentally ill and either dangerous or gravely disabled and (3) in need of immediate restraint. A law enforcement officer may be an applicant. The application must contain a statement by at least one physician that is based upon an examination or information given to the physician that the individual may be mentally ill and is either dangerous or gravely disabled. B. The application is filed with a judge and if approved, the judge issues an order that the individual be taken into custody and transported to an appropriate facility. The officer executing the order has immunity from civil liability. C. The detention may not be for more than 72 hours commencing from the time of admission to the facility. The facility shall provide emergency treatment. If the attending physician believes that there is probable cause to believe that the individual is mentally ill and dangerous or gravely disabled and requires continuing care and treatment and therefore should be detained for

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more than 72 hours, a petition for involuntary commitment should be prepared and filed with the court prior to the expiration of the 72 hour detention. D. Upon the filing of the petition for involuntary commitment with the court, the court within 48 hours of receiving the report shall hold a hearing to determine if there is clear and convincing evidence that such facts are true, and if so, whether a temporary (90 day) or regular commitment order should be issued.

V. Temporary Commitment (IC 12-26-6-1) (Commonly known as a 90 day commitment).

A. After the hearing set forth in D above, the Court can order the individual committed to an appropriate facility for a period of not to exceed 90 days or order the individual to participate in out-patient treatment not to exceed 90 days. The commitment may be extended by the court for an additional 90 days.

VI. Regular Commitment (IC 12-26-7) (Ends with discharge by facility or court order)

May be ordered by the court after a hearing set forth in D above, after a 90 day commitment or after a hearing on an initial petition for regular commitment if the court expects the individual to require custody, care or treatment in a facility for a period exceeding 90 days. The court may order a commitment for a period exceeding 90 days if the court finds by clear and convincing evidence that the individual is mentally ill and either dangerous or gravely disabled and that care and treatment will exceed 90 days. Annual review by court unless discharged earlier.

IC 35-33-5Chapter 5. Search and Seizure

IC 35-33-5-1Issuance by court; probable cause; oath and affirmation; "place" defined; objects of search     Sec. 1. (a) A court may issue warrants only upon probable cause, supported by oath or affirmation, to search any place for any of the following:        (1) Property which is obtained unlawfully.        (2) Property, the possession of which is unlawful.        (3) Property used or possessed with intent to be used as the means of committing an offense or concealed to prevent an offense from being discovered.        (4) Property constituting evidence of an offense or tending to show that a particular person committed an offense.        (5) Any person.        (6) Evidence necessary to enforce statutes enacted to prevent cruelty to or neglect of children.        (7) A firearm possessed by a person who is dangerous (as defined in IC 35-47-14-1).    (b) As used in this section, "place" includes any location where property might be secreted or hidden, including buildings, persons, or vehicles.

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As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.10; P.L.187-2005, SEC.1; P.L.1-2006, SEC.526.

IC 35-33-5-2Affidavit; descriptions; information to establish credibility of hearsay; form     Sec. 2. (a) Except as provided in section 8 of this chapter, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:        (1) particularly describing:            (A) the house or place to be searched and the things to be searched for; or            (B) particularly describing the person to be arrested;        (2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:            (A) the things as are to be searched for are there concealed; or            (B) the person to be arrested committed the offense; and        (3) setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause.    (b) When based on hearsay, the affidavit must either:        (1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or        (2) contain information that establishes that the totality of the circumstances corroborates the hearsay.    (c) An affidavit for search substantially in the following form shall be treated as sufficient:       

STATE OF INDIANA            )                     ) SS: COUNTY OF __________    )            A B swears (or affirms, as the case may be) that he believes and has good cause to believe (here set forth the facts and information constituting the probable cause) that (here describe the things to be searched for and the offense in relation thereto) are concealed in or about the (here describe the house or place) of C D, situated in the county of _____________________, in said state.            Subscribed and sworn to before me this _____ day of _______ 20__.As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.177-1984, SEC.1; P.L.161-1990, SEC.1; P.L.1-1991, SEC.190; P.L.2-2005, SEC.117.

IC 35-33-5-3Form     Sec. 3. A search warrant in substantially the following form shall be sufficient:STATE OF INDIANA     )     )    SS:COUNTY OF __________ )    IN THE _______ COURT  OF _____________________

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To _______________ (herein insert the name, department or classification of the law enforcement officer to whom it is addressed)    You are authorized and ordered, in the name of the State of Indiana, with the necessary and proper assistance to enter into or upon ________________________ (here describe the place to be searched), and there diligently search for ________________ (here describe property which is the subject of the search). You are ordered to seize such property, or any part thereof, found on such search.    Dated this ____ day of ______, 20___, at the hour of ___ __M.

_________________________

(Signature of Judge)

    Executed this ___ day of ______, 20___, at the hour of ____ ___M.

________________________________

(Signature of Law Enforcement Officer)

As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.2-2005, SEC.118.

IC 35-33-5-8Issue of warrant without affidavit; types of sworn testimony; procedures; perjury     Sec. 8. (a) A judge may issue a search or arrest warrant without the affidavit required under section 2 of this chapter, if the judge receives sworn testimony of the same facts required for an affidavit:        (1) in a nonadversarial, recorded hearing before the judge;        (2) orally by telephone or radio; or        (3) in writing by facsimile transmission (FAX).

    (b) After reciting the facts required for an affidavit and verifying the facts recited under penalty of perjury, an applicant for a warrant under subsection (a)(2) shall read to the judge from a warrant form on which the applicant enters the information read by the applicant to the judge. The judge may direct the applicant to modify the warrant. If the judge agrees to issue the warrant, the judge shall direct the applicant to sign the judge's name to the warrant, adding the time of the issuance of the warrant.    (c) After transmitting an affidavit, an applicant for a warrant under subsection (a)(3) shall transmit to the judge a copy of a warrant form completed by the applicant. The judge may modify the transmitted warrant. If the judge agrees to issue the warrant, the judge shall transmit to the applicant a duplicate of the warrant. The judge shall then sign the warrant retained by the judge, adding the time of the issuance of the warrant.    (d) If a warrant is issued under subsection (a)(2), the judge shall record the conversation on audio tape and order the court reporter to type or transcribe the recording for entry in the record. The judge shall certify the audio tape, the transcription, and the warrant retained by the judge for

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entry in the record.    (e) If a warrant is issued under subsection (a)(3), the judge shall order the court reporter to the retype or copy the facsimile transmission for entry in the record. The judge shall certify the transcription or copy and warrant retained by the judge for entry in the record.    (f) The court reporter shall notify the applicant who received a warrant under subsection (a)(2) or (a)(3) when the transcription or copy required under this section is entered in the record. The applicant shall sign the typed, transcribed, or copied entry upon receiving notice from the court reporter.

As added by P.L.161-1990, SEC.2.

IC 35-33-7Chapter 7. Probable Cause; Initial Hearing

IC 35-33-7-1Arrest without warrant; initial hearing; venue     Sec. 1. (a) A person arrested without a warrant for a crime shall be taken promptly before a judicial officer:        (1) in the county in which the arrest is made; or        (2) of any county believed to have venue over the offense committed; for an initial hearing in court.    (b) Except as provided in subsection (c), if the person arrested makes bail before the person's initial hearing before a judicial officer, the initial hearing shall occur at any time within twenty (20) calendar days after the person's arrest.    (c) If a person arrested under IC 9-30-5 makes bail before the person's initial hearing before a judicial officer, the initial hearing must occur within ten (10) calendar days after the person's arrest.As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.126-1989, SEC.27; P.L.2-1991, SEC.103.

IC 35-33-7-2Probable cause; affidavit or oral presentation under oath; record; determination; detention or release     Sec. 2. (a) At or before the initial hearing of a person arrested without a warrant for a crime, the facts upon which the arrest was made shall be submitted to the judicial officer, ex parte, in a probable cause affidavit. In lieu of the affidavit or in addition to it, the facts may be submitted orally under oath to the judicial officer. If facts upon which the arrest was made are submitted orally, the proceeding shall be recorded by a court reporter, and, upon request of any party in the case or upon order of the court, the record of the proceeding shall be transcribed.    (b) If the judicial officer determines that there is probable cause to believe that any crime was committed and that the arrested person committed it, the judicial officer shall order that the arrested person be held to answer in the proper court. If the facts submitted do not establish probable cause or if the prosecuting attorney informs the judicial officer on the record that no

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charge will be filed against the arrested person, the judicial officer shall order that the arrested person be released immediately.As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.12.

IC 35-33-7-3Filing of indictment or information; recess or continuation of initial hearing; informing accused of rights     Sec. 3. (a) When a person is arrested for a crime before a formal charge has been filed, an information or indictment shall be filed or be prepared to be filed at or before the initial hearing, unless the prosecuting attorney has informed the court that there will be no

charges filed in the case.    (b) If the prosecuting attorney states that more time is required to evaluate the case and determine whether a charge should be filed, or if it is necessary to transfer the person to another court, then the court shall recess or continue the initial hearing for up to seventy-two (72) hours, excluding intervening Saturdays, Sundays, and legal holidays.    (c) Before recessing the initial hearing and after the ex parte probable cause determination has been made, the court shall inform a defendant charged with a felony of the rights specified in subdivisions (1), (2), (3), (4), and (5) of section 5 of this chapter.As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.13; P.L.320-1983, SEC.8.

IC 35-33-7-3.5Conformity of initial hearing to summons; probable cause     Sec. 3.5. The initial hearing of a person issued a:        (1) summons; or        (2) summons and promise to appear;must take place according to the terms of the summons. At such an initial hearing, a determination of probable cause is not required unless the prosecuting attorney requests on the record that the person be held in custody before his trial.As added by P.L.320-1983, SEC.9.

IC 35-33-7-4Arrest under warrant; jurisdiction; time of initial hearing     Sec. 4. A person arrested in accordance with the provisions of a warrant shall be taken promptly for an initial hearing before the court issuing the warrant or before a judicial officer having jurisdiction over the defendant. If the arrested person has been released in accordance with the provisions for release stated on the warrant, the initial hearing shall occur at any time within twenty (20) days after his arrest.As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-7-5Informing of accused     Sec. 5. At the initial hearing of a person, the judicial officer shall inform him orally or in writing:        (1) that he has a right to retain counsel and if he intends to retain counsel he must do so

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within:            (A) twenty (20) days if the person is charged with a felony; or            (B) ten (10) days if the person is charged only with one (1) or more misdemeanors;        after this initial hearing because there are deadlines for filing motions and raising defenses, and if those deadlines are missed, the legal issues and defenses that could have been raised will be waived;        (2) that he has a right to assigned counsel at no expense to him

if he is indigent;        (3) that he has a right to a speedy trial;        (4) of the amount and conditions of bail;        (5) of his privilege against self-incrimination;        (6) of the nature of the charge against him; and        (7) that a preliminary plea of not guilty is being entered for him and the preliminary plea of not guilty will become a formal plea of not guilty:            (A) twenty (20) days after the completion of the initial hearing; or            (B) ten (10) days after the completion of the initial hearing if the person is charged only with one (1) or more misdemeanors;        unless the defendant enters a different plea.    In addition, the judge shall direct the prosecuting attorney to give the defendant or his attorney a copy of any formal felony charges filed or ready to be filed. The judge shall, upon request of the defendant, direct the prosecuting attorney to give the defendant or his attorney a copy of any formal misdemeanor charges filed or ready to be filed.As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.14; P.L.320-1983, SEC.10.

IC 35-33-7-6Indigent defendant; assignment of counsel; payment to supplemental public defender services fund     Sec. 6. (a) Prior to the completion of the initial hearing, the judicial officer shall determine whether a person who requests assigned counsel is indigent. If the person is found to be indigent, the judicial officer shall assign counsel to the person.    (b) If jurisdiction over an indigent defendant is transferred to another court, the receiving court shall assign counsel immediately upon acquiring jurisdiction over the defendant.    (c) If the court finds that the person is able to pay part of the cost of representation by the assigned counsel, the court shall order the person to pay the following:        (1) For a felony action, a fee of one hundred dollars ($100).        (2) For a misdemeanor action, a fee of fifty dollars ($50).The clerk of the court shall deposit fees collected under this subsection in the county's supplemental public defender services fund established under IC 33-40-3-1.    (d) The court may review the finding of indigency at any time during the proceedings.As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.216-1996, SEC.11; P.L.98-2004, SEC.139.

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IC 35-33-7-7Order of release not to bar further proceedings     Sec. 7. An order releasing a person under this chapter does not bar further proceedings in the case.

Chapter 8. Bail and Bail Procedure

IC 35-33-8-1"Bail bond" defined     Sec. 1. As used in this chapter, "bail bond" means a bond executed by a person who has been arrested for the commission of an offense, for the purpose of ensuring:        (1) the person's appearance at the appropriate legal proceeding;        (2) another person's physical safety; or        (3) the safety of the community.As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.221-1996, SEC.1.

IC 35-33-8-1.5"Publicly paid costs of representation" defined     Sec. 1.5. As used in this chapter, "publicly paid costs of representation" means the portion of all attorney's fees, expenses, or wages incurred by the county that are:        (1) directly attributable to the defendant's defense; and        (2) not overhead expenditures made in connection with the maintenance or operation of a governmental agency.As added by P.L.167-1987, SEC.8.

IC 35-33-8-2Murder; other offenses     Sec. 2. (a) Murder is not bailable when the proof is evident or the presumption strong. In all other cases, offenses are bailable.    (b) A person charged with murder has the burden of proof that he should be admitted to bail.As added by Acts 1981, P.L.298, SEC.2. Overruled by Indiana Supreme Court see pg. 42.

IC 35-33-8-3.2Conditions to assure appearance; remittance of deposit; collection of fees     Sec. 3.2. (a) A court may admit a defendant to bail and impose any of the following conditions to assure the defendant's appearance at any stage of the legal proceedings, or, upon a showing of clear and convincing evidence that the defendant poses a risk of physical danger to another person or the community, to assure the public's physical safety:        (1) Require the defendant to:

            (A) execute a bail bond with sufficient solvent sureties;            (B) deposit cash or securities in an amount equal to the bail;            (C) execute a bond secured by real estate in the county, where thirty-three hundredths (0.33) of the true tax value less encumbrances is at least equal to the amount of the bail;            (D) post a real estate bond; or            (E) perform any combination of the requirements described in clauses (A) through (D).

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        If the court requires the defendant to deposit cash or cash and another form of security as bail, the court may require the defendant and each person who makes the deposit on behalf of the defendant to execute an agreement that allows the court to retain all or a part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted. The defendant must also pay the fee required by subsection (d).        (2) Require the defendant to execute:            (A) a bail bond by depositing cash or securities with the clerk of the court in an amount not less than ten percent (10%) of the bail; and            (B) an agreement that allows the court to retain all or a part of the cash or securities to pay fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.        A portion of the deposit, not to exceed ten percent (10%) of the monetary value of the deposit or fifty dollars ($50), whichever is the lesser amount, may be retained as an administrative fee. The clerk shall also retain from the deposit under this subdivision fines, costs, fees, and restitution as ordered by the court, publicly paid costs of representation that shall be disposed of in accordance with subsection (b), and the fee required by subsection (d). In the event of the posting of a real estate bond, the bond shall be used only to insure the presence of the defendant at any stage of the legal proceedings, but shall not be foreclosed for the payment of fines, costs, fees, or restitution. The individual posting bail for the defendant or the defendant admitted to bail under this subdivision must be notified by the sheriff, court, or clerk that the defendant's deposit may be forfeited under section 7 of this chapter or retained under subsection (b).        (3) Impose reasonable restrictions on the activities, movements, associations, and residence of the defendant during the period of release.        (4) Except as provided in section 3.6 of this chapter, require the defendant to refrain from any direct or indirect contact with an individual and, if the defendant has been charged with an offense under IC 35-46-3, any animal belonging to the individual, including if the defendant has not been released from lawful detention.

        (5) Place the defendant under the reasonable supervision of a probation officer, pretrial services agency, or other appropriate public official. If the court places the defendant under the supervision of a probation officer or pretrial services agency, the court shall determine whether the defendant must pay the pretrial services fee under section 3.3 of this chapter.        (6) Release the defendant into the care of a qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court. The supervisor shall maintain reasonable contact with the defendant in order to assist the defendant in making arrangements to appear in court and, where appropriate, shall accompany the defendant to court. The supervisor need not be financially responsible for the defendant.        (7) Release the defendant on personal recognizance unless:            (A) the state presents evidence relevant to a risk by the defendant:                (i) of nonappearance; or                (ii) to the physical safety of the public; and            (B) the court finds by a preponderance of the evidence that the risk exists.        (8) Require a defendant charged with an offense under IC 35-46-3 to refrain from owning, harboring, or training an animal.        (9) Impose any other reasonable restrictions designed to assure the defendant's presence in

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court or the physical safety of another person or the community.    (b) Within thirty (30) days after disposition of the charges against the defendant, the court that admitted the defendant to bail shall order the clerk to remit the amount of the deposit remaining under subsection (a)(2) to the defendant. The portion of the deposit that is not remitted to the defendant shall be deposited by the clerk in the supplemental public defender services fund established under IC 33-40-3.    (c) For purposes of subsection (b), "disposition" occurs when the indictment or information is dismissed or the defendant is acquitted or convicted of the charges.    (d) Except as provided in subsection (e), the clerk of the court shall:        (1) collect a fee of five dollars ($5) from each bond or deposit required under subsection (a)(1); and        (2) retain a fee of five dollars ($5) from each deposit under subsection (a)(2).The clerk of the court shall semiannually remit the fees collected under this subsection to the board of trustees of the public employees' retirement fund for deposit in the special death benefit fund. The fee required by subdivision (2) is in addition to the administrative fee retained under subsection (a)(2).    (e) With the approval of the clerk of the court, the county sheriff may collect the bail posted under this section. The county sheriff

shall remit the bail to the clerk of the court by the following business day and remit monthly the five dollar ($5) special death benefit fee to the county auditor.    (f) When a court imposes a condition of bail described in subsection (a)(4):        (1) the clerk of the court shall comply with IC 5-2-9; and        (2) the prosecuting attorney shall file a confidential form prescribed or approved by the division of state court administration with the clerk.

IC 35-33-8-4Amount of bail; order; indorsement; facts taken into account     Sec. 4. (a) The court shall order the amount in which a person charged by an indictment or information is to be held to bail, and the clerk shall enter the order on the order book and indorse the amount on each warrant when issued. If no order fixing the amount of bail has been made, the sheriff shall present the warrant to the judge of an appropriate court of criminal jurisdiction, and the judge shall indorse on the warrant the amount of bail.    (b) Bail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community. In setting and accepting an amount of bail, the judicial officer shall take into account all facts relevant to the risk of nonappearance, including:        (1) the length and character of the defendant's residence in the community;        (2) the defendant's employment status and history and his ability to give bail;        (3) the defendant's family ties and relationships;        (4) the defendant's character, reputation, habits, and mental condition;        (5) the defendant's criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court's authority to bring him to trial;        (6) the defendant's previous record in not responding to court appearances when required or

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with respect to flight to avoid criminal prosecution;        (7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;        (8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance; and        (9) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring him to trial.As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.221-1996, SEC.3.

IC 35-33-8.5-6Murder; admittance to bail     Sec. 6. When any person is indicted for murder, the court in which the indictment is pending, upon motion, upon application by writ of habeas corpus, may admit the defendant to bail when it appears upon examination that the defendant is entitled to be let to bail.As added by P.L.5-1988, SEC.180.

IC 35-44-3-6Failure to appear     Sec. 6. (a) A person who, having been released from lawful detention on condition that he appear at a specified time and place in connection with a charge of a crime, intentionally fails to appear at that time and place commits failure to appear, a Class A misdemeanor. However, the offense is a Class D felony if the charge was a felony charge.    (b) It is no defense that the accused person was not convicted of the crime with which he was originally charged.    (c) This section does not apply to obligations to appear incident to release under suspended sentence or on probation or parole.As added by Acts 1976, P.L.148, SEC.4. Amended by Acts 1977, P.L.340, SEC.64.

IC 35-41-2     Chapter 2. Basis of Criminal Liability

IC 35-41-2-1Voluntary conduct     Sec. 1. (a) A person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense. However, a person who omits to perform an act commits an offense only if he has a statutory, common law, or contractual duty to perform the act.    (b) If possession of property constitutes any part of the prohibited conduct, it is a defense that the person who possessed the property was not aware of his possession for a time sufficient for him to have terminated his possession.

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IC 35-41-2-2Culpability     Sec. 2. (a) A person engages in conduct "intentionally" if, when he engages in the conduct, it is his conscious objective to do so.    (b) A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of a high probability that he is doing so.    (c) A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.    (d) Unless the statute defining the offense provides otherwise, if a kind of culpability is required for commission of an offense, it is required with respect to every material element of the prohibited conduct.

IC 35-41-2-4

Aiding, inducing, or causing an offense (Accessory)     Sec. 4. A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person:        (1) has not been prosecuted for the offense;        (2) has not been convicted of the offense; or        (3) has been acquitted of the offense.

IC 35-41-2-5Intoxication     Sec. 5. Intoxication is not a defense in a prosecution for an offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense unless the defendant meets the requirements of IC 35-41-3-5.

IC 35-41-5     Chapter 5. Offenses of General Applicability

IC 35-41-5-1Attempt     Sec. 1. (a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony.    (b) It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted.

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IC 35-41-5-2Conspiracy     Sec. 2. (a) A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same class as the underlying felony. However, a conspiracy to commit murder is a Class A felony.    (b) The state must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement.    (c) It is no defense that the person with whom the accused person is alleged to have conspired:        (1) has not been prosecuted;        (2) has not been convicted;        (3) has been acquitted;        (4) has been convicted of a different crime;        (5) cannot be prosecuted for any reason; or        (6) lacked the capacity to commit the crime.

IC 35-41-5-3Multiple convictions     Sec. 3. (a) A person may not be convicted of both a conspiracy and an attempt with respect to the same underlying crime.    (b) A person may not be convicted of both a crime and an attempt to commit the same crime.

IC 35-41-3     Chapter 3. Defenses Relating to Culpability

IC 35-41-3-1Legal authority      Sec. 1. A person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.IC 35-41-3-2

Use of force to protect person or propertySec. 2. (a) In enacting this section, the general assembly finds and declares that it is the policy of this state to recognize the unique character of a citizen's home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant. By reaffirming the long standing right of a citizen to protect his or her home against unlawful intrusion, however, the general assembly does not intend to diminish in any way the other robust self defense rights that citizens of this state have always enjoyed. Accordingly, the general assembly also finds and declares that it is the policy of this state that people have a right to defend themselves and third parties from physical harm and crime. The purpose of this section is to provide the citizens of this state with a lawful means of carrying out this policy.    (b) As used in this section, "public servant" means a person described in IC 35-41-1-17, IC 35-31.5-2-129, or IC 35-31.5-2-185.     (c) A person is justified in using reasonable force against any other person to protect the

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person or a third person from what the person reasonably believes to be the imminent use of unlawful force.

However, a person:        (1) is justified in using deadly force; and        (2) does not have a duty to retreat;if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.    (d) A person:        (1) is justified in using reasonable force, including deadly force, against any other person; and        (2) does not have a duty to retreat;if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.    (e) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against any other person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:        (1) is justified in using deadly force; and        (2) does not have a duty to retreat;only if that force is justified under subsection (c).    (f) A person is justified in using reasonable force, including deadly force, against any other person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this subsection, an aircraft is considered to be in flight while the aircraft is:        (1) on the ground in Indiana:            (A) after the doors of the aircraft are closed for takeoff; and            (B) until the aircraft takes off;        (2) in the airspace above Indiana; or        (3) on the ground in Indiana:            (A) after the aircraft lands; and            (B) before the doors of the aircraft are opened after landing.    (g) Notwithstanding subsections (c) through (e), a person is not justified in using force if:

        (1) the person is committing or is escaping after the commission of a crime;        (2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or        (3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.

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    (h) Notwithstanding subsection (f), a person is not justified in using force if the person:        (1) is committing, or is escaping after the commission of, a crime;        (2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or        (3) continues to combat another person after the other person withdraws from the encounter and communicates the other person's intent to stop hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight.     (i) A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:        (1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;        (2) prevent or terminate the public servant's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle; or        (3) prevent or terminate the public servant's unlawful trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect.    (j) Notwithstanding subsection (i), a person is not justified in using force against a public servant if:        (1) the person is committing or is escaping after the commission of a crime;        (2) the person provokes action by the public servant with intent to cause bodily injury to the public servant;        (3) the person has entered into combat with the public servant or is the initial aggressor, unless the person withdraws from the encounter and communicates to the public servant the intent to do so and the public servant nevertheless continues

or threatens to continue unlawful action; or        (4) the person reasonably believes the public servant is:            (A) acting lawfully; or            (B) engaged in the lawful execution of the public servant's official duties.    (k) A person is not justified in using deadly force against a public servant whom the person knows or reasonably should know is a public servant unless:        (1) the person reasonably believes that the public servant is:            (A) acting unlawfully; or            (B) not engaged in the execution of the public servant's official duties; and        (2) the force is reasonably necessary to prevent serious bodily injury to the person or a third person.( AMENDED IN 2012 BY P.L.189-2006, SECTION 1)

IC 35-41-3-3Use of force relating to arrest or escape     Sec. 3. (a) A person other than a law enforcement officer is justified in using reasonable force against another person to effect an arrest or prevent the other person's escape if:

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        (1) a felony has been committed; and        (2) there is probable cause to believe the other person committed that felony.However, such a person is not justified in using deadly force unless that force is justified under section 2 of this chapter.    (b) A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest. However, an officer is justified in using deadly force only if the officer:        (1) has probable cause to believe that that deadly force is necessary:            (A) to prevent the commission of a forcible felony; or            (B) to effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily

injury to the officer or a third person; and        (2) has given a warning, if feasible, to the person against whom the deadly force is to be used.    (c) A law enforcement officer making an arrest under an invalid warrant is justified in using force as if the warrant was valid, unless the officer knows that the warrant is invalid.    (d) A law enforcement officer who has an arrested person in custody is justified in using the same force to prevent the escape of the arrested person from custody that the officer would be justified in using if the officer was arresting that person. However, an officer is justified in using deadly force only if the officer:        (1) has probable cause to believe that deadly force is necessary to prevent the escape from custody of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person; and        (2) has given a warning, if feasible, to the person against whom the deadly force is to be used.    (e) A guard or other official in a penal facility or a law enforcement officer is justified in using reasonable force, including deadly force, if the officer has probable cause to believe that the force is necessary to prevent the escape of a person who is detained in the penal facility.    (f) Notwithstanding subsection (b), (d), or (e), a law enforcement officer who is a defendant in a criminal prosecution has the same right as a person who is not a law enforcement officer to assert self-defense under IC 35-41-3-2.

IC 35-41-3-5Intoxication     Sec. 5. It is a defense that the person who engaged in the prohibited conduct did so while he was intoxicated, only if the intoxication resulted from the introduction of a substance into his body:        (1) without his consent; or        (2) when he did not know that the substance might cause intoxication.

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IC 35-41-3-6Mental disease or defect (Definition)     Sec. 6. (a) A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.    (b) As used in this section, "mental disease or defect" means a severely abnormal mental condition that grossly and demonstrably impairs a person's perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.

IC 35-41-3-7Mistake of fact     Sec. 7. It is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense.As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.12.

IC 35-41-3-8Duress     Sec. 8. (a) It is a defense that the person who engaged in the prohibited conduct was compelled to do so by threat of imminent serious bodily injury to himself or another person. With respect to offenses other than felonies, it is a defense that the person who engaged in the prohibited conduct was compelled to do so by force or threat of force. Compulsion under this section exists only if the force, threat, or circumstances are such as would render a person of reasonable firmness incapable of resisting the pressure.    (b) This section does not apply to a person who:        (1) recklessly, knowingly, or intentionally placed himself in a situation in which it was foreseeable that he would be subjected to duress; or        (2) committed an offense against the person as defined in IC 35-42.

IC 35-41-3-9Entrapment     Sec. 9. (a) It is a defense that:        (1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and        (2) the person was not predisposed to commit the offense.    (b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

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IC 35-41-3-10

Abandonment     Sec. 10. With respect to a charge under IC 35-41-2-4, IC 35-41-5-1, or IC 35-41-5-2, it is a defense that the person who engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission.

IC 35-41-3-11Mental disease or defect; use of justifiable reasonable force     Sec. 11. (a) As used in this section, "defendant" refers to an individual charged with any crime involving the use of force against a person.    (b) This section applies under the following circumstances when the defendant in a prosecution raises the issue that the defendant was at the time of the alleged crime suffering from the effects of battery as a result of the past course of conduct of the individual who is the victim of the alleged crime:        (1) The defendant raises the issue that the defendant was not responsible as a result of mental disease or defect under section 6 of this chapter, rendering the defendant unable to appreciate the wrongfulness of the conduct at the time of the crime.        (2) The defendant claims to have used justifiable reasonable force under section 2 of this chapter. The defendant has the burden of going forward to produce evidence from which a trier of fact could find support for the reasonableness of the defendant's belief in the imminence of the use of unlawful force or, when deadly force is employed, the imminence of serious bodily injury to the defendant or a third person or the commission of a forcible felony.    (c) If a defendant proposes to claim the use of justifiable reasonable force under subsection (b)(2), the defendant must file a written motion of that intent with the trial court not later than:        (1) twenty (20) days if the defendant is charged with a felony; or        (2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;before the omnibus date. However, in the interest of justice and upon a showing of good cause, the court may permit the filing to be made at any time before the commencement of the trial.    (d) The introduction of any expert testimony under this section shall be in accordance with the Indiana Rules of Evidence.

INSANITY

IC 35-36-2     Chapter 2. Affirmative Defense of Insanity or Mental Illness; Pleadings, Orders, and Findings (See pg. 272 for definition)

IC 35-36-2-1Time of filing     Sec. 1. When the defendant in a criminal case intends to interpose the defense of insanity, he must file a notice of that intent with the trial court no later than:        (1) twenty (20) days if the defendant is charged with a felony; or        (2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;

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before the omnibus date. However, in the interest of justice and upon a showing of good cause, the court may permit the filing to be made at any time before commencement of the trial.As added by Acts 1981, P.L.298, SEC.5. Amended by Acts 1982, P.L.204, SEC.29.

IC 35-36-2-2Admissibility of evidence; psychiatrists, psychologists, or physicians; defendant's failure to communicate, participate, and cooperate with court appointed medical witnesses     Sec. 2. (a) At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant's sanity or insanity at the time at which the defendant is alleged to have committed the offense charged in the indictment or information.    (b) When notice of an insanity defense is filed, the court shall appoint two (2) or three (3) competent disinterested psychiatrists, psychologists endorsed by the state psychology board as health service providers in psychology, or physicians, at least one (1) of whom must be a psychiatrist, to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense.    (c) If a defendant does not adequately communicate, participate, and cooperate with the medical witnesses appointed by the court, after being ordered to do so by the court, the defendant may not present as evidence the testimony of any other medical witness:        (1) with whom the defendant adequately communicated, participated, and cooperated; and        (2) whose opinion is based upon examinations of the defendant;unless the defendant shows by a preponderance of the evidence that the defendant's failure to communicate, participate, or cooperate with the medical witnesses appointed by the court was caused by the defendant's mental illness.    (d) The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness.As added by Acts 1981, P.L.298, SEC.5. Amended by P.L.321-1983, SEC.2; P.L.19-1986, SEC.59; P.L.149-1987, SEC.119; P.L.77-2004, SEC.3.

IC 35-36-2-3Finding of jury     Sec. 3. In all cases in which the defense of insanity is interposed, the jury (or the court if tried by it) shall find whether the defendant is:        (1) guilty;        (2) not guilty;        (3) not responsible by reason of insanity at the time of the crime; or        (4) guilty but mentally ill at the time of the crime.As added by Acts 1981, P.L.298, SEC.5.

IC 35-36-2-4Finding of nonresponsibility by reason of insanity; commitment procedures; requirements of the superintendent and attending physician; transmittal of information to NICS     Sec. 4. (a) Whenever a defendant is found not responsible by reason of insanity at the time of the crime, the prosecuting attorney shall file a written petition with the court under IC 12-26-6-

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2(a)(3) or under IC 12-26-7. If a petition is filed under IC 12-26-6-2(a)(3), the court shall hold a commitment hearing under IC 12-26-6. If a petition is filed under IC 12-26-7, the court shall hold a commitment hearing under IC 12-26-7.    (b) The hearing shall be conducted at the earliest opportunity after the finding of not responsible by reason of insanity at the time of the crime, and the defendant shall be detained in custody until the completion of the hearing. The court may take judicial notice of evidence introduced during the trial of the defendant and may call the physicians appointed by the court to testify concerning whether the defendant is currently mentally ill and dangerous or currently mentally ill and gravely disabled, as those terms are defined by IC 12-7-2-96 and IC 12-7-2-130(1). The court may subpoena any other persons with knowledge concerning the issues presented at the hearing.    (c) The defendant has all the rights provided by the provisions of IC 12-26 under which the petition against the defendant was filed. The prosecuting attorney may cross-examine the witnesses and present relevant evidence concerning the issues presented at the hearing.    (d) If a court orders an individual to be committed under IC 12-26-6 or IC 12-26-7 following a verdict of not responsible by reason of insanity at the time of the crime, the superintendent of the facility to which the individual is committed and the attending physician are subject to the requirements of IC 12-26-15-1.    (e) If a defendant is found not responsible by reason of insanity, the court shall transmit any information required by the division of state court administration to the division of state court administration for transmission to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with IC 33-24-6-3.

IC 35-36-2-5Finding or plea of guilty but mentally ill; evaluation; sentence; treatment; transmittal of information to NICS     Sec. 5. (a) Except as provided by subsection (e), whenever a defendant is found guilty but mentally ill at the time of the crime or enters a plea to that effect that is accepted by the court, the court shall sentence the defendant in the same manner as a defendant found guilty of the offense.    (b) Before sentencing the defendant under subsection (a), the court shall require the defendant to be evaluated by a physician licensed under IC 25-22.5 who practices psychiatric medicine, a licensed psychologist, or a community mental health center (as defined in IC 12-7-2-38). However, the court may waive this requirement if the defendant was evaluated by a physician licensed under IC 25-22.5 who practices psychiatric medicine, a licensed psychologist, or a community mental health center and the evaluation is contained in the record of the defendant's trial or plea agreement hearing.    (c) If a defendant who is found guilty but mentally ill at the time of the crime is committed to the department of correction, the defendant shall be further evaluated and then treated in such a manner as is psychiatrically indicated for the defendant's mental illness. Treatment may be provided by:        (1) the department of correction; or        (2) the division of mental health and addiction after transfer under IC 11-10-4.    (d) If a defendant who is found guilty but mentally ill at the time of the crime is placed on probation, the court may, in accordance with IC 35-38-2-2.3, require that the defendant undergo treatment.

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    (e) As used in this subsection, "individual with mental retardation" has the meaning set forth in IC 35-36-9-2. If a court determines under IC 35-36-9 that a defendant who is charged with a murder for which the state seeks a death sentence is an individual with mental retardation, the court shall sentence the defendant under IC 35-50-2-3(a).    (f) If a defendant is found guilty but mentally ill, the court shall transmit any information required by the division of state court administration to the division of state court administration for transmission to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with IC 33-24-6-3.

IC 35-41-4     Chapter 4. Standard of Proof and Bars to Prosecution

IC 35-41-4-1Standard of proof; insanity defense     Sec. 1. (a) A person may be convicted of an offense only if his guilt is proved beyond a reasonable doubt.    (b) Notwithstanding subsection (a), the burden of proof is on the defendant to establish the defense of insanity (IC 35-41-3-6) by a preponderance of the evidence.As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.16; Acts 1978, P.L.145, SEC.9.

IC 35-41-4-3When prosecution barred for same offense     Sec. 3. (a) A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if:        (1) the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.); or        (2) the former prosecution was terminated after the jury was impaneled and sworn or, in a trial by the court without a jury, after the first witness was sworn, unless (i) the defendant consented to the termination or waived, by motion to dismiss or otherwise, his right to object to the termination, (ii) it was physically impossible to proceed with the trial in conformity with law, (iii) there was a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law, (iv) prejudicial conduct, in or outside the courtroom, made it impossible to proceed with the trial without injustice to either the defendant or the state, (v) the jury was unable to agree on a verdict, or (vi) false statements of a juror on voir dire prevented a fair trial.    (b) If the prosecuting authority brought about any of the circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this section, with intent to cause termination of the trial, another prosecution is barred.As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.18.

IC 35-41-4-5Former prosecution in another jurisdiction a bar     Sec. 5. In a case in which the alleged conduct constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction, a former prosecution in any other jurisdiction is a

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bar to a subsequent prosecution for the same conduct in Indiana, if the former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.20.

JURY VERDICTS AND SENTENCES FOR MURDER

1. Death sentence or life w/o parole not requested by prosecuting attorney.(a) Jury verdict of not guilty of murder or any lesser included offense.

OR(b) Jury verdict of not guilty of murder or any lesser included offense by reason of insanity if insanity plea, followed by civil commitment procedure.

OR(c) Jury verdict of guilty murder: The judge decides the sentence with a 45-65 year possible sentence of imprisonment. If guilty of any lesser included offense, the sentence is determined by the judge. OR (d) Jury verdict of guilty of murder but mentally ill if insanity plea: The judge decides the sentence with a possible sentence of between 45 and 65 years imprisonment. The defendant is first treated for mental illness by the Department of Corrections or Department of Mental Health and then serves the balance of the imprisonment sentence.2. Death sentence or life w/o parole requested by prosecuting attorney.(a) Jury verdict of not guilty of murder or any lesser included offense.

OR(b) Jury verdict of not guilty of murder or any included offense by reason of insanity if insanity plea, followed by civil commitment procedure.

OR(c) Jury verdict of guilty of murder but no death or life without parole sentence and that the sentence shall be determined by the judge with a possible sentence of between 45-65 years imprisonment. If guilty of any lesser included offense, the sentence is determined by the judge. OR (d) Jury verdict of guilty of murder but mentally ill if insanity plea. Jury decides sentence (death, life w/out parole or 45-60 years) which sentence must be ordered (or determined if 45-60 years) by the judge. Except for a death sentence, the defendant is first treated for mental illness by the Department of Corrections or Department of mental Health and then serves the balance of the imprisonment sentence. OR (e) Jury verdict of guilty of murder and the jury recommends the death sentence which sentence must be ordered by the judge. OR

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(f) Jury verdict of guilty of murder and the jury recommends a sentence of life imprisonment without possibility of parole which sentence must be ordered by the judge.NOTE 1: If jury cannot agree, then the judge determines the sentence. Pg 248NOTE 2: The above sentences are for a defendant 18 or above. If a defendant 16-17 years old is convicted by a jury of murder, then the death sentence is not permitted. Life without parole and 45-65 are permitted. No juvenile court jurisdiction. If a defendant 10-15 years old is convicted of by a jury of murder, then the death sentence and life without parole are not permitted. 45-65 years are permitted. Defendant must have been waived from juvenile court. If defendant is under 10, then only juvenile procedure. If no waiver for murder, then if 13-15 years old under juvenile procedure and may be committed until 18 to the Department of Corrections. NOTE 3: If defendant is under 21 and determined to have mental retardation pursuant to IC 35-36-9 (pgs 244 and 245), there can be no death sentence.

INDIANA CRIMINAL PROCEDURE

Criminal Information Grand Jury Indictment filed with Court filed with Court (the Grand Jury ! finds probable cause to believe)Probable Cause Hearing !by Judge (Affidavit or oral) ! !____ Judge authorizes arrest ______ ! Warrant ! Law Officer arrest Law Officer arrest of Defendant without Warrant of Defendant with Warrant ! Officer must have probable cause to believe ! that a person has committed, is committing ! or attempting to commit a felony or ! committing or attempting to commit a ! misdemeanor in his presence. (Any ! person can arrest if a felony is committed ! in his presence or he has probable cause to ! believe that a felony has been committed) ! ! Defendant in Jail Defendant in Jail Defendant released on Bail? Defendant released on Bail? ! ! ! Criminal Information or Grand Jury ! Indictment filed with Court ! ! INITIAL HEARING (Previously called Arraignment) IC 35-33-7 pg. 260An Initial Hearing before a judge must be held promptly after arrest if arrest made without a warrant (or within 20 days if bail), and 20 days after arrest if arrest made with a warrant.

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At the initial hearing the judge must determine if there was probable cause for the arrest if the arrest was made without a warrant (by Affidavit or oral testimony) and in all cases advise the defendant of his right to be represented by counsel including pauper counsel, the charges and a copy thereof, the right to a speedy trial*, the amount and conditions of bail, and the privilege against self incrimination. A plea is entered and, if no plea, that a preliminary plea of not guilty will be entered. The pleas allowed are guilty, not guilty and guilty but mentally ill. If a plea of guilty but mentally ill is accepted by the judge, the judge sentences the defendant as if he was not mentally ill but the first part of the sentence is served at a state mental institution for treatment. The Court also sets an Omnibus Date which is a date within 45 and 75 days thereafter. The date determines various deadlines for certain action. Ex: Insanity plea, mental retardation defense, and Alibi defense must be filed 20 days before such date. Pretrial hearing date may be set.

Interrogatories submitted, Depositions taken, and various Motions such as to produce evidence, to suppress evidence illegally obtained, for witness and documents list, in limine filed. ! ! PRETRIAL HEARING (Previously called Omnibus Hearing) IC 35-36-8Motions heard and ruled upon, issues simplified, admission of facts and documents, defenses (except for alibi, mental retardation, and insanity previously filed) set forth, date set for filing of proposed Court’s Instructions, and setting trial date.* Right to a trial within 70 days if in jail and defendant discharged if not tried w/in 6 months.

DEFENSES: Insanity, self defense, intoxication, mistake of fact, duress, entrapment, abandonment (pgs. 268-273), alibi (IC 35-36-4) (pgs. 49 and 279), and mental retardation (IC 35-36-9). Except for insanity and mental retardation, the state has the burden of proving beyond a reasonable doubt that the defendant has no such defense (pg. 276). Defendant has the burden to prove insanity “by a preponderance of the evidence” and mental retardation by “clear and convincing evidence”.

Indiana Rules of Criminal Procedure can be found at www.in.gov/judiciary/rules/

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DEFINITIONS: DEADLY WEAPON, BODILY INJURY, SERIOUS BODILY INJURY

IC 35-41    ARTICLE 41. SUBSTANTIVE CRIMINAL PROVISIONS

IC 35-41-1-8"Deadly weapon" defined     Sec. 8. (a) Except as provided in subsection (b), "deadly weapon" means the following:        (1) A loaded or unloaded firearm.        (2) A destructive device, weapon, device, taser (as defined in IC 35-47-8-3) or electronic stun weapon (as defined in IC 35-47-8-1), equipment, chemical substance, or other material that in the manner it is used, or could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily injury.        (3) An animal (as defined in IC 35-46-3-3) that is:            (A) readily capable of causing serious bodily injury; and            (B) used in the commission or attempted commission of a crime.        (4) A biological disease, virus, or organism that is capable of causing serious bodily injury.    (b) The term does not include:        (1) a taser (as defined in IC 35-47-8-3);        (2) an electronic stun weapon (as defined in IC 35-47-8-1);        (3) a chemical designed to temporarily incapacitate a person; or        (4) another device designed to temporarily incapacitate a person;if the device described in subdivisions (1) through (4) is used by a law enforcement officer who has been trained in the use of the device and who uses the device in accordance with the law enforcement officer's training and while lawfully engaged in the execution of official duties.As added by P.L.311-1983, SEC.9. Amended by P.L.318-1985, SEC.1; P.L.140-1994, SEC.4; P.L.156-2001, SEC.8; P.L.123-2002, SEC.33; P.L.143-2006, SEC.1.

IC 35-41-1-4"Bodily injury" defined     Sec. 4. "Bodily injury" means any impairment of physical condition, including physical pain.As added by P.L.311-1983, SEC.5.

IC 35-41-1-25"Serious bodily injury" defined     Sec. 25. "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes:        (1) serious permanent disfigurement;        (2) unconsciousness;        (3) extreme pain;        (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus.        

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See IC 31-34 for Children in Need of Services

IC 31-37    ARTICLE 37. JUVENILE LAW: DELINQUENCY

IC 31-37-1     Chapter 1. Delinquent Children Who Commit Acts That Would Be Offenses if Committed by Adults.

IC 31-37-1-1Delinquent child defined     Sec. 1. A child is a delinquent child if, before becoming eighteen (18) years of age, the child commits a delinquent act described in this chapter.As added by P.L.1-1997, SEC.20.

IC 31-37-1-2Delinquent act     Sec. 2. A child commits a delinquent act if, before becoming eighteen (18) years of age, the child commits an act that would be an offense if committed by an adult, except an act committed by a person over which the juvenile court lacks jurisdiction under IC 31-30-1.As added by P.L.1-1997, SEC.20.

PETITION ALLEGING DELINQUENCY

IC 31-37-10     Chapter 10. Filing of Petition Alleging That Child Is Delinquent Child

IC 31-37-10-1Standing     Sec. 1. The prosecuting attorney may file a petition alleging that a child is a delinquent child.As added by P.L.1-1997, SEC.20. Amended by P.L.146-2008, SEC.633.

IC 31-37-10-2Approval of filing of petition     Sec. 2. The juvenile court shall do the following:        (1) Consider the preliminary inquiry and the evidence of probable cause.        (2) Approve the filing of a petition if there is probable cause to believe that:            (A) the child is a delinquent child; and            (B) it is in the best interests of the child or the public that the petition be filed.As added by P.L.1-1997, SEC.20.

IC 31-37-10-3Petition; verification and contents     Sec. 3. A petition must:        (1) be verified;        (2) be entitled "In the Matter of __________, a Child Alleged to be a Delinquent Child";

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and        (3) contain the following information:            (A) A citation to the provision of the juvenile law that gives the juvenile court jurisdiction in the proceeding.            (B) A citation to the statute that the child is alleged to have violated.            (C) A concise statement of the facts upon which the allegations are based, including the date and location at which the alleged act occurred.            (D) The child's name, birth date, and residence address if known.            (E) The name and residence address of the child's parent, guardian, or custodian if known.            (F) The name and title of the person signing the petition.As added by P.L.1-1997, SEC.20.

IC 31-37-10-5Written request that child be taken into custody; finding     Sec. 5. (a) If the filing of a petition is approved by the court under section 2 of this chapter, the prosecuting attorney may request in writing that the child be taken into custody. The person must support this request with sworn testimony or affidavit.    (b) The court may grant the request if the court makes written findings of fact upon the record that a ground for detention exists under IC 31-37-6-6.As added by P.L.1-1997, SEC.20. Amended by P.L.146-2008, SEC.634.

IC 31-37-10-6Detention hearing     Sec. 6. If the juvenile court grants the request to have the child taken into custody, the court shall proceed in accordance with IC 31-37-6.As added by P.L.1-1997, SEC.20.

JUVENILE COURT JURISDICTION

    ARTICLE 30. JUVENILE LAW: JUVENILE COURT JURISDICTION

IC 31-30-1     Chapter 1. Jurisdiction Generally

IC 31-30-1-1Exclusive original jurisdiction     Sec. 1. A juvenile court has exclusive original jurisdiction, except as provided in sections 9, 10, 12, and 13 of this chapter, in the following:        (1) Proceedings in which a child, including a child of divorced parents, is alleged to be a delinquent child under IC 31-37.

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IC 31-30-1-2

Applicability of juvenile law to certain offenses

     Sec. 2. Except as provided in IC 33-33-45-6 and section 8 of this chapter, the juvenile law does not apply to the following:        (1) A child who is alleged to have committed a violation of a statute defining an infraction, except as provided under IC 7.1-5-7.        (2) A child who is alleged to have committed a violation of an ordinance.        (3) A child who:            (A) is alleged to have committed an act that would be a felony if committed by an adult; and            (B) has previously been waived under IC 31-30-3 (or IC 31-6-2-4 before its repeal) to a court having felony jurisdiction.As added by P.L.1-1997, SEC.13. Amended by P.L.98-2004, SEC.104; P.L.67-2008, SEC.1.

IC 31-30-1-4Juvenile court lacks jurisdiction over individuals at least 16 years of age committing certain felonies; retention of jurisdiction by court having adult criminal jurisdiction     Sec. 4. (a) The juvenile court does not have jurisdiction over an individual for an alleged violation of:        (1) IC 35-41-5-1(a) (attempted murder);        (2) IC 35-42-1-1 (murder);        (3) IC 35-42-3-2 (kidnapping);        (4) IC 35-42-4-1 (rape);        (5) IC 35-42-4-2 (criminal deviate conduct);        (6) IC 35-42-5-1 (robbery) if:            (A) the robbery was committed while armed with a deadly weapon; or            (B) the robbery results in bodily injury or serious bodily injury;        (7) IC 35-42-5-2 (carjacking);        (8) IC 35-45-9-3 (criminal gang activity);        (9) IC 35-45-9-4 (criminal gang intimidation);        (10) IC 35-47-2-1 (carrying a handgun without a license), if charged as a felony;        (11) IC 35-47-10 (children and firearms), if charged as a felony;        (12) IC 35-47-5-4.1 (dealing in a sawed-off shotgun); or        (13) any offense that may be joined under IC 35-34-1-9(a)(2) with any crime listed in subdivisions (1) through (12);if the individual was at least sixteen (16) years of age at the time of the alleged violation.    (b) The juvenile court does not have jurisdiction for an alleged violation of manufacturing or dealing in cocaine or a narcotic drug (IC 35-48-4-1), dealing in methamphetamine (IC 35-48-4-1.1), dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2), or dealing in a

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schedule IV controlled substance (IC 35-48-4-3), if:        (1) the individual has a prior unrelated conviction under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-48-4-2, or IC 35-48-4-3; or        (2) the individual has a prior unrelated juvenile adjudication that, if committed by an adult, would be a crime under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-48-4-2, or IC 35-48-4-3;and the individual was at least sixteen (16) years of age at the time of the alleged violation.

    (c) Once an individual described in subsection (a) or (b) has been charged with any crime listed in subsection (a) or (b), the court having adult criminal jurisdiction shall retain jurisdiction over the case even if the individual pleads guilty to or is convicted of a lesser included offense. A plea of guilty to or a conviction of a lesser included offense does not vest jurisdiction in the juvenile court.As added by P.L.1-1997, SEC.13. Amended by P.L.17-2001, SEC.7; P.L.151-2006, SEC.12; P.L.216-2007, SEC.35; P.L.67-2008, SEC.2.

INITIAL HEARING

IC 31-37-12     Chapter 12. Initial Hearing and Issuance of Summons

IC 31-37-12-1Application of chapter     Sec. 1. This chapter applies only to a child alleged to be a delinquent child.As added by P.L.1-1997, SEC.20.

IC 31-37-12-2Initial hearing; service of copy of petition and summons; notice of initial hearing     Sec. 2. (a) The juvenile court shall hold an initial hearing on each petition.    (b) The juvenile court shall set a time for the initial hearing. A summons shall be issued for the following:        (1) The child.        (2) The child's parent, guardian, custodian, or guardian ad litem.        (3) Any other person necessary for the proceedings.    (c) A copy of the petition must accompany each summons. The clerk shall issue the summons under Rule 4 of the Indiana Rules of Trial Procedure.    (d) The prosecuting attorney or the probation department of the juvenile court shall provide notice of the time, place, and purpose of the initial hearing scheduled or held under this section to each foster parent or other caretaker with whom the child has been placed for temporary care under IC 31-37-5 or IC 31-37-7. The court shall:        (1) provide a:            (A) person for whom a summons is required to be issued under subsection (b); and            (B) person required to be notified under this subsection;        an opportunity to be heard; and

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        (2) allow a person described in subdivision (1) to make recommendations to the court;at the initial hearing.As added by P.L.1-1997, SEC.20. Amended by P.L.138-2007, SEC.82.

IC 31-37-12-3Representation by counsel; waiver; appointment     Sec. 3. (a) Before complying with the other requirements of this section, the juvenile court shall first determine whether counsel has been:        (1) waived under IC 31-32-5; or        (2) previously obtained.    (b) If counsel has not been waived or previously obtained, the juvenile court shall appoint counsel under IC 31-32-4.As added by P.L.1-1997, SEC.20.

IC 31-37-12-4

Waiver of jurisdiction     Sec. 4. The court shall next determine whether the prosecuting attorney intends to seek a waiver of jurisdiction under IC 31-30-3. If a waiver is sought, the court:        (1) may not accept an admission or a denial of the allegations from the child under section 9 of this chapter; and        (2) shall do the following:            (A) Schedule a waiver hearing.            (B) Advise the child according to section 5 of this chapter.As added by P.L.1-1997, SEC.20.

IC 31-37-12-5Duty to inform child and parent, guardian, or custodian regarding nature of allegations, child's legal rights, jurisdiction, and dispositional alternatives     Sec. 5. The juvenile court shall inform the child and the child's parent, guardian, or custodian, if the person is present, of the following:        (1) The nature of the allegations against the child.        (2) The child's right to the following:            (A) Be represented by counsel.            (B) Have a speedy trial.            (C) Confront witnesses against the child.            (D) Cross-examine witnesses against the child.            (E) Obtain witnesses or tangible evidence by compulsory process.            (F) Introduce evidence on the child's own behalf.            (G) Refrain from testifying against himself or herself.            (H) Have the state prove beyond a reasonable doubt that the child committed the delinquent act charged.        (3) The possibility of waiver to a court having criminal jurisdiction.        (4) The dispositional alternatives available to the juvenile court if the child is adjudicated a

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delinquent child.As added by P.L.1-1997, SEC.20.

IC 31-37-12-6Duty to inform parent or guardian of estate of effect of adjudication     Sec. 6. The juvenile court shall inform the parent or guardian of the estate of the following if a child is adjudicated a delinquent child:        (1) The parent, guardian, or custodian of the child may be required to participate in a program of care, treatment, or rehabilitation for the child.        (2) The parent or guardian may be held financially responsible for services provided for the child or the parent or guardian.        (3) The parent, guardian, or custodian of the child may controvert:            (A) an allegation made at the dispositional or other hearing concerning the participation of the parent, guardian, or

custodian; or            (B) an allegation concerning the financial responsibility of the parent, guardian, or custodian for services that would be provided.As added by P.L.1-1997, SEC.20.

IC 31-37-12-7Child's admission or denial of allegations     Sec. 7. (a) If:        (1) the prosecuting attorney has not requested that the juvenile court waive the court's jurisdiction; or        (2) a waiver has been requested and denied;the juvenile court shall determine whether a child admits or denies the allegations of a petition.    (b) A failure to respond constitutes a denial.As added by P.L.1-1997, SEC.20.

IC 31-37-12-8Procedure following admission of allegations by child     Sec. 8. If a child admits the allegations of a petition, the juvenile court shall do the following:        (1) Enter judgment accordingly.        (2) Schedule a dispositional hearing.As added by P.L.1-1997, SEC.20.

IC 31-37-12-9Dispositional hearing; factfinding hearing; consent     Sec. 9. (a) If a child has admitted the allegations of a petition, the juvenile court may hold the dispositional hearing immediately after the initial hearing.    (b) If a child denies the allegations, the juvenile court may hold the factfinding hearing immediately after the initial hearing.    (c) Except as provided in section 10 of this chapter:        (1) the child;        (2) the child's:

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            (A) counsel;            (B) guardian ad litem;            (C) parent;            (D) guardian; or            (E) custodian; and        (3) the person representing the interests of the state;must consent to the timing of the hearing.As added by P.L.1-1997, SEC.20.

FACTFINDING HEARING

IC 31-37-13     Chapter 13. Factfinding Hearing

IC 31-37-13-1Hearsay requirements; notice; opportunity to be heard     Sec. 1. (a) Unless the allegations of a petition have been admitted, the juvenile court shall hold a factfinding hearing.    (b) If the factfinding hearing is not held immediately after the initial hearing as provided under IC 31-37-12-9, the prosecuting attorney or probation department of the juvenile court shall provide notice of any factfinding hearing to each foster parent or other caretaker with whom the child has been placed for temporary care. The court shall provide a person required to be notified under this subsection an opportunity to be heard at the factfinding hearing.As added by P.L.1-1997, SEC.20. Amended by P.L.138-2007, SEC.83.

IC 31-37-13-2Judgment; order for predispositional report; scheduling of dispositional hearing     Sec. 2. If the court finds that a child is a delinquent child, the court shall do the following:        (1) Enter judgment accordingly.        (2) Order a predispositional report.        (3) Schedule a dispositional hearing.As added by P.L.1-1997, SEC.20. Amended by P.L.146-2008, SEC.635.

IC 31-37-13-3Discharge of child     Sec. 3. If the court finds that a child is not a delinquent child, the court shall discharge the child.As added by P.L.1-1997, SEC.20.

IC 31-37-13-5Findings required where delinquent act would be felony if committed by adult     Sec. 5. If a finding of delinquency is based on a delinquent act that would be a felony if committed by an adult, the juvenile court shall state in the findings the following:        (1) The specific statute that was violated.

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        (2) The class of the felony had the violation been committed by an adult.As added by P.L.1-1997, SEC.20.

DISPOSITIONAL DECREES

IC 31-37-19     Chapter 19. Dispositional Decrees

IC 31-37-19-1Entry of dispositional decrees; placement in foster family home or another facility; findings and conclusions     Sec. 1. (a) Subject to section 6.5 of this chapter, if a child is a delinquent child under IC 31-37-2, the juvenile court may enter one (1) or more of the following dispositional decrees:        (1) Order supervision of the child by the probation department.        (2) Order the child to receive outpatient treatment:            (A) at a social service agency or a psychological, a psychiatric, a medical, or an educational facility; or            (B) from an individual practitioner.        (3) Remove the child from the child's home and place the child in another home or shelter care facility. Placement under this subdivision includes authorization to control and discipline the child.        (4) Award wardship to a:            (A) person, other than the department; or            (B) shelter care facility.        (5) Partially or completely emancipate the child under section 27 of this chapter.        (6) Order:            (A) the child; or            (B) the child's parent, guardian, or custodian;        to receive family services.        (7) Order a person who is a party to refrain from direct or indirect contact with the child.    (b) If the child is removed from the child's home and placed in a foster family home or another facility, the juvenile court shall:        (A) approve a permanency plan for the child;        (B) find whether or not reasonable efforts were made to prevent or eliminate the need for the removal;        (C) designate responsibility for the placement and care of the child with the probation department; and        (D) find whether it:            (i) serves the best interests of the child to be removed; and            (ii) would be contrary to the health and welfare of the child for the child to remain in the home.    (c) If a dispositional decree under this section:        (1) orders or approves removal of a child from the child's home or awards wardship of the child to a:

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            (A) person other than the department; or            (B) shelter care facility; and        (2) is the first court order in the delinquent child proceeding that authorizes or approves removal of the child from the child's parent, guardian, or custodian;the court shall include in the decree the appropriate findings and conclusions described in IC 31-37-6-6(f) and IC 31-37-6-6(g).

IC 31-37-19-9Confinement of delinquent child at least 13 but less than 16 years of age committing act that would be murder, kidnapping, rape, criminal deviate conduct, or robbery if committed by adult

     Sec. 9. (a) This section applies if a child is a delinquent child under IC 31-37-1.    (b) After a juvenile court makes a determination under IC 11-8-8-5, the juvenile court may, in addition to an order under section 6 of this chapter, and if the child:        (1) is at least thirteen (13) years of age and less than sixteen (16) years of age; and        (2) committed an act that, if committed by an adult, would be:            (A) murder (IC 35-42-1-1);            (B) kidnapping (IC 35-42-3-2);            (C) rape (IC 35-42-4-1);            (D) criminal deviate conduct (IC 35-42-4-2); or            (E) robbery (IC 35-42-5-1) if the robbery was committed while armed with a deadly weapon or if the robbery resulted in bodily injury or serious bodily injury;order wardship of the child to the department of correction for a fixed period that is not longer than the date the child becomes eighteen (18) years of age, subject to IC 11-10-2-10.    (c) Notwithstanding IC 11-10-2-5, the department of correction may not reduce the period ordered under this section (or IC 31-6-4-15.9(b)(8) before its repeal).As added by P.L.1-1997, SEC.20. Amended by P.L.238-2001, SEC.17; P.L.140-2006, SEC.20 and P.L.173-2006, SEC.20.

IC 31-37-19-10Confinement of delinquent child at least 14 years of age committing act that would be felony against person, Class A or Class B controlled substances felony, or burglary and two prior unrelated adjudications that would be felonies if committed by an adult     Sec. 10. (a) This section applies to a child who:        (1) is adjudicated a delinquent child for an act that if committed by an adult would be:            (A) a felony against a person;            (B) a Class A or Class B felony that is a controlled substances offense under IC 35-48-4-1 through IC 35-48-4-5; or            (C) burglary as a Class A or Class B felony under IC 35-43-2-1;        (2) is at least fourteen (14) years of age at the time the child committed the act for which the child is being placed; and        (3) has two (2) unrelated prior adjudications of delinquency for acts that would be felonies if committed by an adult.

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    (b) A court may place the child in a facility authorized under this chapter for not more than two (2) years.    (c) Notwithstanding IC 11-10-2-5, the department of correction may not reduce the period ordered under this section (or IC 31-6-4-15.9(n) before its repeal).As added by P.L.1-1997, SEC.20.

WAIVER OF JURISDICTION

IC 31-30-3-1Waiver of jurisdiction defined     Sec. 1. Waiver of jurisdiction refers to an order of the juvenile court that waives the case to a court that would have jurisdiction had the act been committed by an adult. Waiver is for the offense charged and all included offenses.As added by P.L.1-1997, SEC.13.

IC 31-30-3-2Heinous or aggravated act, or act as part of repetitive pattern of delinquent acts     Sec. 2. Upon motion of the prosecuting attorney and after full investigation and hearing, the juvenile court may waive jurisdiction if it finds that:        (1) the child is charged with an act that is a felony:            (A) that is heinous or aggravated, with greater weight given to acts against the person than to acts against property; or            (B) that is a part of a repetitive pattern of delinquent acts, even though less serious;        (2) the child was at least fourteen (14) years of age when the act charged was allegedly committed;        (3) there is probable cause to believe that the child committed the act;        (4) the child is beyond rehabilitation under the juvenile justice system; and        (5) it is in the best interests of the safety and welfare of the community that the child stand trial as an adult.As added by P.L.1-1997, SEC.13. Amended by P.L.67-2008, SEC.3.

IC 31-30-3-3Act that would be felony relating to controlled substances     Sec. 3. Upon motion of the prosecuting attorney and after a full investigation and a hearing, the court may waive jurisdiction if it finds that:        (1) the child is charged with an act that, if committed by an adult, would be a felony under IC 35-48-4;        (2) there is probable cause to believe that the child has committed the act;        (3) the child was at least sixteen (16) years of age when the act was allegedly committed; and        (4) it is in the best interests of the safety and the welfare of the community for the child to stand trial as an adult.As added by P.L.1-1997, SEC.13.

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IC 31-30-3-4Act that would be murder     Sec. 4. Upon motion of the prosecuting attorney and after full

investigation and hearing, the juvenile court shall waive jurisdiction if it finds that:        (1) the child is charged with an act that would be murder if committed by an adult;        (2) there is probable cause to believe that the child has committed the act; and        (3) the child was at least ten (10) years of age when the act charged was allegedly committed;unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.As added by P.L.1-1997, SEC.13.

IC 31-30-3-5Acts that would be Class A or Class B felonies, involuntary manslaughter, or reckless homicide     Sec. 5. Except for those cases in which the juvenile court has no jurisdiction in accordance with IC 31-30-1-4, the court shall, upon motion of the prosecuting attorney and after full investigation and hearing, waive jurisdiction if it finds that:        (1) the child is charged with an act that, if committed by an adult, would be:            (A) a Class A or Class B felony, except a felony defined by IC 35-48-4;            (B) involuntary manslaughter as a Class C felony under IC 35-42-1-4; or            (C) reckless homicide as a Class C felony under IC 35-42-1-5;        (2) there is probable cause to believe that the child has committed the act; and        (3) the child was at least sixteen (16) years of age when the act charged was allegedly committed;unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.As added by P.L.1-1997, SEC.13.

IC 31-30-3-6Act that would be felony and prior felony or nontraffic misdemeanor conviction     Sec. 6. Upon motion by the prosecuting attorney, the juvenile court shall waive jurisdiction if it finds that:        (1) the child is charged with an act which would be a felony if committed by an adult; and        (2) the child has previously been convicted of a felony or a nontraffic misdemeanor.As added by P.L.1-1997, SEC.13.

IC 31-30-3-8Order to hold child for proceedings; recognizance bond     Sec. 8. If jurisdiction is waived, the juvenile court:        (1) shall order the child held for proceedings in the court to which the child is waived; and        (2) may fix a recognizance bond for the child to answer the charge in the court to which the child is waived.As added by P.L.1-1997, SEC.13.

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IC 31-30-3-9Probable cause finding     Sec. 9. The finding of probable cause required to waive jurisdiction is sufficient to establish probable cause in the court to which the child is waived.As added by P.L.1-1997, SEC.13.

IC 31-30-3-10Waiver order; findings     Sec. 10. A waiver order must include specific findings of fact to support the order.As added by P.L.1-1997, SEC.13.

IC 31-30-3-11Waiver order; filing     Sec. 11. The prosecuting attorney shall file a copy of the waiver order with the court to which the child has been waived when the prosecuting attorney files the indictment or information.As added by P.L.1-1997, SEC.13.

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INDIANA JUVENILE PROCEDURE

All hearings are before a juvenile judge and a jury is not allowed. If a child is held in custody, no bail is allowed. A law officer may take custody of a child (definition pg. 281) without a court order if the officer had probable cause to believe that the child has committed a delinquent act (pg.281). The child is held in an appropriate juvenile facility until a Detention Hearing is held before a judge within 48 hours excluding Saturday, Sunday and holidays. At a Detention Hearing the child is advised of the charges, his right to an attorney and the privilege against self incrimination. The hearing is continued if an attorney is requested. The judge will decide if there is probable cause to believe that the child has committed an act of delinquency and if no probable cause, the child is released. If probable cause, the judge will either release the child from custody (A Petition Alleging Delinquency may be filed later by the prosecuting attorney) or order the child to be continued to be detained in custody. A Petition Alleging Delinquency must be filed within 7 days excluding Saturday, Sunday and holidays, or the child is released. Procedure to file Petition Alleging Delinquency: A police officer or other person who has information concerning a delinquent act may provide such information to the prosecuting attorney who, if there is reason to believe that the child has committed a delinquent act, shall refer the information to an Intake Officer who shall make a Preliminary Inquiry and report to the prosecuting attorney. The prosecuting attorney may take no action, arrange an Informal Adjustment with the approval of the judge, or decide to file a Petition Alleging Delinquency with the juvenile judge. See IC 31-37-10-1 pg. 281. When such a petition is filed with the judge, if the judge finds probable cause to believe that the child has committed an act of delinquency, the judge will approve of the filing of the Petition for Delinquency. The prosecuting attorney may request by affidavit that the child be taken into custody and the judge may issue a custody order (similar to an arrest warrant) and the child is taken into custody and held at an appropriate juvenile facility. A Detention Hearing must be held within 48 hours of custody being taken excluding Saturday, Sunday and holidays. The next step in the procedure is an Initial Hearing before the juvenile judge. If the child is in custody, this hearing must be within 20 days of custody being taken excluding Saturday, Sunday and holidays. This hearing is similar to the Initial Hearing (Arraignment) in adult criminal procedure wherein the child’s rights are explained and an admission or denial of delinquency is obtained. See IC 31-37-12 pg. 284. A Factfinding Hearing date is set which must be within 20 days, excluding Saturday, Sunday and holidays, is child in custody. If a Waiver Petition is filed pursuant to IC 31-30-3 pg. 290, a hearing is held on the petition. This hearing must be within 20 days, excluding Saturday, Sunday and holidays, if child in custody. If child is waived, a Criminal Information is filed by the prosecuting attorney in adult criminal court and proceedings thereafter are as an adult. If child is not waived, then factfinding juvenile proceedings are held by the judge. After the initial hearing, if the child is not waived, the judge holds a Factfinding Hearing pursuant to IC 31-37-13 pg. 287. This is similar to an adult criminal trial.

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If the judge decides at the factfinding hearing that the child has committed an act of delinquency and the child has admitted that he committed an act of delinquency, the judge enters an order determining that the child is a delinquent child and orders the probation department to prepare and file a Predispositional Report with the judge. The judge sets a date for the Dispositional Hearing. If the child has denied that he committed an act of delinquency and the judge after the factfinding hearing determines beyond a reasonable doubt that the child has committed an act of delinquency, the judge enters an order determining that the child is a delinquent child and orders the probation department to prepare and file a Predispositional Report with the judge. The judge sets a date for the Dispositional Hearing. If the judge finds that the child has not committed an act of delinquency, an order to that effect is entered and the child is discharged. If an order of delinquency has been entered at the Factfinding Hearing, a Dispositional Hearing pursuant to IC 31-37-18 is held and the judge determines what an appropriate disposition should be and enters an order accordingly. See Dispositional Decrees pg. 288.

Checklist for Juvenile Court Jurisdiction and Waiver

A. Children in Need of Services IC 31-34B. Acts of Delinquency A Delinquent Child is a person up to 18 years of age who commits a delinquent act. pg. 281 A delinquent act is an act that would be an offense if committed by an adult unless the juvenile court lacks jurisdiction. pg. 2811. What age was the defendant at time of committing offense? If 18 or above, adult. 2. If 18 or under, what would the crime be if defendant were an adult?3. Does the juvenile court have jurisdiction? Yes if under 18 except: No if infraction (except false ID to purchase alcoholic beverages) or violation of ordinance. No if 16-17 for certain serious felonies (murder, kidnapping, rape etc.) pg. 283.4. If juvenile court has jurisdiction, juvenile procedure will follow unless juvenile court waiver (pg. 290) to adult criminal court. A waiver can only be granted by the juvenile court judge upon motion of the prosecuting attorney and pursuant to statute. If no waiver, the matter stays in juvenile court under juvenile justice system. a. Age 10-15 for an act that would be murder, the juvenile court judge shall waive unless---pg. 291 b. Age 14-17 for certain listed felonies that are heinous or aggravated may waive. pg. 290 c. Age 16-17 for certain serious felonies (A, B, Involuntary Manslaughter, Reckless Homicide) shall waive unless---pg. 291 d. For certain multiple offenses, must waive. Pg. 291

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There can be no waiver unless requested by the prosecuting attorney and, except for d above, the juvenile judge must find that waiver to adult court is appropriate before waiver is granted.

FEDERAL ADMINISTRATIVE AGENCIES

The executive power is vested in the President (Article II). One of the ways this power is exercised is by administering the laws that Congress enacts. Sec. 3 states : “he shall take care that the laws be faithfully executed.” This is the basis for the creation of the Department of Justice (Attorney General), for the creation of various bureaus, and for exercising powers granted by Congress concerning administrative agencies.

Congress passes laws (enabling acts) that create Administrative Agencies and delegates authority to administer these programs to the head of a cabinet department, bureau, or independent agency. The head of a cabinet department and certain bureaus are appointed by the President, and the enabling acts usually designate that the head of a bureau or agency be appointed by the President.

Some administrative agencies are referred to as independent agencies. Examples: Federal Reserve Board, Federal Communications Commission and Securities and Exchange Commission. The members of an independent agency are appointed by the President with the advice and consent of the Senate. The members serve fixed terms and can be removed only for good cause.

Agencies typically possess great power. They write Rules and Regulations (with the same force and effect as if passed by Congress), investigate compliance and bring charges for violations, impose sanctions for violations (fines or mandated actions), and adjudicate controversies much like a court (Administrative Law Judges). They employ millions of government officials and ordinary workers (two million civilian employees in 2009). Federal statutes, for example, require or permit government officials to obtain, provide, or regulate taxes, welfare, Social Security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas, stocks and bonds, banking, medical care, public health, safety, the environment, fair employment and housing practices, consumer protection, and much else besides.

Agency decisions are subject to judicial review. Such a review could encompass: did the agency properly find facts; follow proper procedure; follow its own rules and regulations; whether an agencies determinations are reasonable, not arbitrary, capricious or an abuse of discretion and conform to basic principles of fairness; and are not unconstitutional.

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The first administrative agency, the Interstate Commerce Commission, was created by Congress in 1887. The agency was abolished in 1995 and most of its functions transferred to the Surface Transportation Board. Other early agencies are the Food and Drug Administration (1906) and the Federal Trade Commission (1914).

The New Deal under President Roosevelt brought the Federal Power Commission (1930) which as of 1977 became the Federal Energy Regulatory Commission, the Securities and Exchange Commission (1934), the Federal Communications Commission (1934), the National Labor Relations Board (1935), and the Civil Aeronautics Board (1938) which was abolished in 1985 and its functions transferred to the Department of Transportation and Federal Aviation Administration.

1970 brought forth agencies created to protect the public health and safety such as the Environmental Protection Agency, Occupational Safety and Health Administration, and National Highway Traffic Safety Administration which is under the Department of Transportation.

See www.usa.gov/Agencies/Federal/All_Agencies/index.shtml for a mind-boggling list of government departments and agencies.

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LABOR LAW

A. PRIVATE EMPLOYERS AND EMPLOYEES

Pre-1932:

Labor law was very pro management. Courts and prosecutors were pro management and various methods were used by management to interfere with or prohibit the formation of labor unions such as:Injunction by federal court forbidding organizational activity by unions.State criminal prosecution of union organizers as a criminal conspiracy.Civil suit for large damages against union organizers as tortuous conduct.Federal and state criminal prosecution for a violation of anti-trust laws.Making employees agree not to join a union as a condition of employment (Yellow Dog Contracts).

1932: Norris-LaGuardia Act: Federal Law Prohibits the issuance of a court injunction against union organizational activity.Declares that union activity cannot be prosecuted as a conspiracy.Forbids Yellow Dog Contracts.Declared that it was the policy of the United States that labor was to have full freedom to form labor unions without interference by an employer.

1933: Indiana “Little Norris-LaGuardia Act”:IC 22-6-1: mirrors the federal act.

1935: National Labor Relations Act (The Wagner Act): Federal LawDeclared a right of employees to form and join a union and collective bargain.Act sets forth various employer unfair labor practices such as: Discriminating against employees in hiring, firing, changing jobs or job descriptions, threatening to fire, dominating the union, refusing to bargain in good faith.National Labor Relations Board (NLRB) established to monitor and administer the act including elections.

1947: Labor-Management Relations Act (Taft-Hartley Act): Federal LawAct sets forth various union unfair labor practices such as: Coercing an employee to join a union, making an employer fire non union employees, refusing to bargain in good faith, featherbedding (forcing employer to pay for work not done), secondary boycott or strike, closed shop (employer can only hire union members). The act permits union shops (employer can hire a non union employee but employee must join the union within 30-60 days)* except where state law has passed a “right to work” law. A right

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to work law forbids mandatory union membership or dues being required as a condition of employment. Indiana passed such a law in 2012.

* The law does not require union membership even in a union shop, as long as the employee pays reasonable union dues representing local union activity only.

B. INDIANA PUBLIC EMPLOYERS AND EMPLOYEES

Federal law does not apply to state public employers and employees (state, cities, towns, counties, townships, school corporations, and any subdivisions thereof).There is no state law prohibiting the formation of a union by public employees. However, except as noted below, there is no legal obligation for a public employer to recognize, bargain with or enter a contract with any such union. They may, however, voluntarily agree to do so. Strikes are illegal.

In 1990 Governor Bayh granted the right to collective bargain to state employee unions by Executive Order, and in 2005, Governor Daniels rescinded this order.

IC 22-6-2 (1947) sets forth a labor law for employers engaged in the business of rendering electric, gas, water, telephone, or transportation services to the public. The law encourages collective bargaining and forbids a strike by employees (Class B misdemeanor).

IC 20-29 (2012) sets forth labor law including collective bargaining for public school teachers. Strikes are unlawful. An employee cannot be required to join a union or to pay any union dues. The law provides for arbitration and fact finding. Sixty days after May 1 every two years the School Board unilaterally, after collective bargaining for 60 days and not agreeing to a contract, can declare an impasse and appoint an Arbitrator (not a mediator) from the Board’s staff to be paid for equally by the union and board. After various hearings, if the Arbitrator is unable to get the parties to agree to a contract, the Arbitrator who was appointed by the School Board from their staff determines what the contract will be and all parties are bound by the contract.

IC 36-8-22 (2008) sets forth a labor law for full-time police officers and firefighters. The law sets forth various rights to organize and join a union. The law requires all government units to meet with and confer in good faith with representatives of their full-time police officers and firefighters. Strikes are forbidden and may be cause for discharge. An employee may not be required to join the union or pay union dues.

The law does not apply to employers who: (a) have a population less than 7,000; or (b) have adopted by ordinance, resolution, amendment or executive order provisions or procedures that permit its employees to form, join or assist employee organizations for collective bargaining

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purposes. The law does not supersede or effect collective bargaining agreements entered into prior to January 1, 2008.

ANTITRUST LAW

In the latter half of the nineteenth century, in response to large combinations of economic power in the form of “trusts” and “combinations” of businesses which became too powerful and widespread, and which resulted in various anticompetitive practices, the first antitrust act was passed in 1890-the Sherman Act. The act prohibits in section 1 contracts, combinations, and conspiracies that restrain trade, such as price fixing, market allocations and tying arrangements, and in section 2 outlaws monopolies and attempts to monopolize. The act provides for criminal penalties of imprisonment for not to exceed ten years and large fines. It is now administered by the Department of Justice and civilly by the Federal Trade Commission. Anyone injured by a violation may recover treble damages in a civil action.

Later federal laws which established other prohibited anticompetitive activity, and strengthened enforcement procedures were:

1914: Federal Trade Commission Act which created the Federal Trade Commission (FTC). The FTC has broad powers to investigate violations of all antitrust laws and can issue cease and desist orders (injunctions).

1914: Clayton Act which prohibited tying contracts, exclusive dealing and certain mergers. Civil actions authorized by the FTC and Justice Department to prevent violations of the act. Anyone injured by a violation may recover treble damages in a civil action.

1936: Robinson-Patman Act which prohibited price discrimination. Contained the same sanctions and enforcement as the Clayton Act.

The Federal Trade Commission has published a comprehensive review of antitrust law which can be found at:

http://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws

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INDIANA STATUTES CONCERNING DNA

(DNA first reported profiling in England 1984 and available as evidence 1987)

IC 35-37-4-13"Forensic DNA analysis" defined; admissibility     Sec. 13. (a) As used in this section, "forensic DNA analysis" means an identification process in which the unique genetic code of an individual that is carried by the individual's deoxyribonucleic acid (DNA) is compared to genetic codes carried in DNA found in bodily substance samples obtained by a law enforcement agency in the exercise of the law enforcement agency's investigative function.    (b) In a criminal trial or hearing, the results of forensic DNA analysis are admissible in evidence without antecedent expert testimony that forensic DNA analysis provides a trustworthy and reliable method of identifying characteristics in an individual's genetic material.As added by P.L.1-1991, SEC.194.

IC 35-38-7     Chapter 7. Postconviction DNA Testing and Analysis

IC 35-38-7-1Applicability of chapter     Sec. 1. This chapter applies only to an offense that is any of the following:        (1) Murder.        (2) A Class A felony.        (3) A Class B felony.        (4) A Class C felony.As added by P.L.49-2001, SEC.2.

IC 35-38-7-2"DNA" defined     Sec. 2. As used in this chapter, "DNA" refers to deoxyribonucleic acid.As added by P.L.49-2001, SEC.2.

IC 35-38-7-3"Offense" defined     Sec. 3. As used in this chapter, "offense" means a felony to which a petition under this chapter relates.As added by P.L.49-2001, SEC.2. Amended by P.L.1-2002, SEC.147.

IC 35-38-7-4"Victim" defined     Sec. 4. As used in this chapter, "victim" means an individual who would be entitled under IC 35-40-5-8 to receive information about a release of the petitioner.As added by P.L.49-2001, SEC.2.

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IC 35-38-7-5Petition to require testing     Sec. 5. A person who was convicted of and sentenced for an offense may file a written petition with the court that sentenced the petitioner for the offense to require the forensic DNA testing and analysis of any evidence that:        (1) is:            (A) in the possession or control of a court or the state; or            (B) otherwise contained in the Indiana DNA data base established under IC 10-13-6;        (2) is related to the investigation or prosecution that resulted in the person's conviction; and        (3) may contain biological evidence.As added by P.L.49-2001, SEC.2. Amended by P.L.2-2003, SEC.93.

IC 35-38-7-6Notice of petition to prosecuting attorney     Sec. 6. A petitioner must give notice of the petition to the

prosecuting attorney for the county where the offense was allegedly committed.As added by P.L.49-2001, SEC.2.

IC 35-38-7-7Opportunity to respond to petition     Sec. 7. The court shall give the prosecuting attorney an opportunity to respond to the petition. The court may, in its discretion, order a hearing on the petition.As added by P.L.49-2001, SEC.2.

IC 35-38-7-8Prima facie proof required     Sec. 8. After complying with section 7 of this chapter, the court shall determine whether the petitioner has presented prima facie proof of the following:        (1) That the evidence sought to be tested is material to identifying the petitioner as:            (A) the perpetrator of; or            (B) an accomplice to;        the offense that resulted in the petitioner's conviction.        (2) That a sample of the evidence that the petitioner seeks to subject to DNA testing and analysis is in the possession or control of either:            (A) the state or a court; or            (B) another person, and, if this clause applies, that a sufficient chain of custody for the evidence exists to suggest that the evidence has not been substituted, tampered with, replaced, contaminated, or degraded in any material aspect.        (3) The evidence sought to be tested:            (A) was not previously tested; or            (B) was tested, but the requested DNA testing and analysis will:                (i) provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice; or                (ii) have a reasonable probability of contradicting prior test results.        (4) A reasonable probability exists that the petitioner would not have:

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            (A) been:                (i) prosecuted for; or                (ii) convicted of;            the offense; or            (B) received as severe a sentence for the offense;        if exculpatory results had been obtained through the requested DNA testing and analysis.As added by P.L.49-2001, SEC.2.

IC 35-38-7-9

Order for testing     Sec. 9. If the court makes the findings described in section 8(1), 8(2), 8(3), and 8(4) of this chapter, the court shall order DNA testing and analysis of the evidence.As added by P.L.49-2001, SEC.2.

IC 35-38-7-10Method and payment for testing     Sec. 10. If the court orders DNA testing and analysis under section 9 of this chapter, the court shall order the method and responsibility for the payment of any costs associated with the DNA testing and analysis.As added by P.L.49-2001, SEC.2.

IC 35-38-7-11Appointment of defense counsel     Sec. 11. The court may appoint defense counsel for the person who was convicted of the offense at any time during any proceedings under this chapter if the person is indigent.As added by P.L.49-2001, SEC.2.

IC 35-38-7-12Selection of laboratory     Sec. 12. If the court orders DNA testing and analysis under this chapter, the court shall select a laboratory that meets the quality assurance and proficiency testing standards applicable to laboratories conducting forensic DNA analysis under IC 10-13-6.As added by P.L.49-2001, SEC.2. Amended by P.L.2-2003, SEC.94.

IC 35-38-7-13Access to laboratory reports     Sec. 13. (a) If a prosecuting attorney or defense counsel has previously subjected relevant evidence to DNA testing and analysis, the court may order the prosecuting attorney or defense counsel to provide all the parties and the court with access to the laboratory reports that were prepared in connection with the testing and analysis, including underlying data and laboratory notes.    (b) If the court orders DNA testing and analysis under this chapter, the court:        (1) shall order the production of any laboratory reports that are prepared in connection with the testing and analysis; and

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        (2) may order the production of any underlying data and laboratory notes.As added by P.L.49-2001, SEC.2.

IC 35-38-7-14Preservation and inventory of testing results     Sec. 14. If a petition for DNA testing and analysis is filed under this chapter:        (1) the court shall order the state to preserve during the

pendency of the proceeding all evidence in the state's possession or control that could be subjected to DNA testing and analysis;        (2) the state shall:            (A) prepare an inventory of the evidence in the possession or control of the state that could be subjected to DNA testing and analysis; and            (B) submit a copy of the inventory to defense counsel and the court; and        (3) if evidence is intentionally destroyed after the court orders its preservation, the court may impose appropriate sanctions.As added by P.L.49-2001, SEC.2.

IC 35-38-7-15Discretionary orders by court; elimination samples     Sec. 15. (a) The court may make any other orders under this chapter that the court considers appropriate, including designating any of the following:        (1) The type of DNA testing and analysis to be used.        (2) That the DNA testing and analysis satisfies the pertinent evidentiary rules concerning the admission of scientific evidence or testimony in the Indiana Rules of Evidence.        (3) The procedures to be followed during the DNA testing and analysis.        (4) The preservation of some of the sample for replicating the DNA testing and analysis.        (5) Elimination samples from third parties.    (b) Elimination samples from a third party shall be required only if:        (1) the petitioner has been excluded as the perpetrator or accomplice by DNA testing and analysis; or        (2) extraordinary circumstances are shown to require the DNA test and analysis.If the court orders elimination samples from a third party, the court shall offer the third party the choice to provide a sample that can be obtained through the least intrusive method possible.As added by P.L.49-2001, SEC.2.

IC 35-38-7-16Notice to victims and third parties     Sec. 16. (a) The prosecuting attorney may provide notification under the procedures of IC 35-40-12 when:        (1) the petitioner first files a petition for DNA testing and analysis under this chapter; and        (2) the prosecuting attorney knows the name and address of the victim.If the court grants a petition for DNA testing and analysis, the prosecuting attorney shall provide notification if the name and address of the victim are known. A victim shall be notified of the results of the DNA testing and analysis.

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    (b) The name and address of a victim are confidential for purposes of this chapter.    (c) Notification of third parties regarding a court order to provide elimination samples shall be through the prosecuting attorney.    (d) If a petitioner is exonerated by DNA testing and analysis, the victim shall be notified before the petitioner's release.As added by P.L.49-2001, SEC.2.

IC 35-38-7-17Notification of convicted person     Sec. 17. Regardless of whether a petition has been filed under this chapter, if:        (1) a prosecuting attorney decides to order forensic DNA testing or analysis that was not previously performed on biological evidence that is related to the investigation or prosecution that resulted in a person's conviction; and        (2) the testing will consume the remaining biological evidence;the prosecuting attorney must notify the person of the proposed DNA testing and analysis.As added by P.L.49-2001, SEC.2.

IC 35-38-7-18Unfavorable results of postconviction testing     Sec. 18. If the results of the postconviction DNA testing and analysis are not favorable to the person who was convicted of the offense, the court:        (1) shall dismiss the person's petition; and        (2) may make any further orders that the court determines to be appropriate, including any of the following:            (A) An order providing for notification of the parole board or a probation department.            (B) An order requesting that the petitioner's sample be added to the Indiana data base established under IC 10-13-6.As added by P.L.49-2001, SEC.2. Amended by P.L.2-2003, SEC.95.

IC 35-38-7-19Favorable results of postconviction testing     Sec. 19. Notwithstanding any law that would bar a trial as untimely, if the results of postconviction DNA testing and analysis are favorable to the person who was convicted of the offense, the court shall order any of the following:        (1) Upon motion of the prosecuting attorney and good cause shown, order retesting of the identified biological material and stay the petitioner's motion for a new trial pending the results of the DNA retesting.        (2) Upon joint petition of the prosecuting attorney and the petitioner, order the release of the person.        (3) Order a new trial or any other relief as may be appropriate under Indiana law or court rule.As added by P.L.49-2001, SEC.2.

SEE IC 10-13-6 for Indiana DNA Data Base statute.

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THE RIGHT TO BEAR ARMS

John R. Berger, JD

AMENDMENT II (1791)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Prior to 2008 the United States Supreme Court had not ruled on whether the Second Amendment protected from infringement any individual right of the people to keep and bear arms. The lower federal courts had consistently decided that the Second Amendment protected from federal infringement only the collective right of the people to keep and bear arms as a member of the militia and that no individual right to keep and bear arms was protected. Therefore, a state could reasonably regulate the individual possession and use of arms under the state’s police power (the right of a state to pass reasonable laws to protect the citizen’s health, safety, morals and general welfare), subject to any limitations in the state constitution and subject to the state’s judicial determination as to what is a reasonable regulation. Also, Congress could reasonably regulate the individual possession and use of arms under the powers given Congress in the “commerce” and “necessary and proper” clauses in the Constitution. No such federal or state legislation would violate the Second Amendment.

All of this established interpretation of the Second Amendment was changed drastically by the United States Supreme Court in the cases of District of Columbia v. Heller (2008) and McDonald v, Chicago (2010). In addition to the collective right to bear arms as a member of the militia, the court established for the first time that there was also a pre-existing fundamental individual right to bear arms which existed in 1791, and which right was protected from infringement by the Second (federal action) and Fourteenth (state action) Amendments.

The Second Amendment does not create or grant the people any individual right to bear arms. Rather than granting a right, it protects the people from having the pre-existing fundamental right to bear arms taken away by the federal or state government. The United States Supreme Court in Heller stated “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it shall not be infringed.”

In contrast, many state constitutions establish such a right rather than protecting a pre-existing right. As an example, the Indiana Constitution in Article 1, Section 32, states “The people shall have the right to bear arms, for the defense of themselves and the state.”

The difficult decision is determining what this 1791 pre-existing individual “right of the people to keep and bear Arms” as set forth in the Second Amendment and “to bear arms, for the defense of themselves” as set forth in the Indiana and similar Constitutions mean, and what restrictions on such a right may be imposed. The Heller decision states that such a pre-existing right “was not to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

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What do keep, bear, and arms mean? The Heller and McDonald decisions attempted to answer this question and delineate some of the parameters of this individual right. Both involved the constitutionality of laws prohibiting the possession of handguns in the home. The United States Supreme Court decided (5-4) as a general principal that there were fundamental pre-existing individual rights to possess and carry weapons in case of confrontation, and to use a firearm for traditionally lawful purposes, such as self defense in the home. The court ruled that prohibition by the federal or state government on the possession of handguns in the home for self defense violates (infringes upon) the right to possess and carry arms protected by the Second Amendment as to federal action and incorporated in the Fourteenth Amendment as to state action. These decisions were limited to an examination only of the laws prohibiting possession of handguns in the home. The constitutionality of some permissible limitations on the possession of weapons was set forth in the Heller opinion in dicta. The Court stated: “We do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation. Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The Court further stated as to the personal use and possession of firearms “We also recognize another important limitation on the right to keep and carry arms. The sorts of weapons protected were those in common use at the time” and carrying of “dangerous and unusual” weapons can be prohibited. Further, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purpose.”

The District of Columbia law banned all handguns in the district and the Chicago law effectively banned all handguns in Chicago by registration provisions which had the practical effect of banning most handguns in the city. The Heller and McDonald decisions struck down the District of Columbia and Chicago laws because such laws would prohibit handguns in the home for the purpose of self-defense. The court did not decide if the laws banning handguns outside of the home in the District of Columbia and Chicago were constitutional.

The minority of four in Heller would have upheld the banning of handguns in the home in an urban society and thought that the major underlying value and purpose of the right to bear arms set forth in the Second Amendment was to protect the militias. There was fear that the right of Congress to regulate militias as set forth in Article I would allow Congress to weaken or disband militias, and therefore the Founders wanted to protect militias. The minority recognized that the individual right to bear arms for self defense was important in primarily rural America but, in light of changing circumstances to an urban society, this right can be limited because of the greater risk of taking lives. Protecting innocent lives by banning urban handguns does not disproportionally burden the interest the Second Amendment seeks to protect, “self defense.”

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Therefore, according to the minority, the right to possess a handgun is not now a fundamental right and is not incorporated in the Second Amendment or substantive due process clause as to either federal or state action.

Those opposed to any regulation of the personal use and possession of weapons often cite The Federalist Papers, written by James Madison, Alexander Hamilton and John Jay, Numbers 29 and 46, as authority for the unregulated personal right to bear arms. To support this claim, words and phrases, such as “the advantage of being armed, which the Americans possess over the people of almost every other nation,” are taken out of context, and a careful reading of the complete papers easily discloses the error. All references to the right to bear arms in The Federalist Papers are to the collective right to bear arms as a member of the organized militia. There is no discussion of a personal right to bear arms. The U. S. Supreme Court in the Heller and McDonald decisions properly and correctly did not refer to The Federalist Papers as authority for recognizing a personal right to bear arms.

At the time that the Constitution was being considered by the state conventions, the anti-federalists were afraid that the Constitution gave excessive power to the federal government and wanted a Bill of Rights added to the Constitution by amendment. In order to have the Constitution approved, it was agreed to add such amendments although the exact rights to be included had not yet been determined. The only reference in The Federalist Papers to any proposed Bill of Rights was in No. 84 which argued that no such Bill of Rights was needed.

The anti-federalists were afraid that the following powers of Congress provisions in the proposed Constitution, Article 1, Section 8 cls 15-16:

(15) To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

(16) To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

would give Congress the power to disarm the militias and impose rule through a standing army or select militia. In order to allay such fears and to counteract any such action the Second Amendment was proposed and later adopted. The first portion of the amendment would protect the militias and the collective right to bear arms, and allow the militia to traditionally defend against insurrection and invasion, and also to defend against their own government’s unlikely tyranny.

The Federalist Papers in No. 29 argues that the anti-federalists have no need to be concerned about the above Section 8 clauses in the proposed Constitution, and explains favorably the interrelationship of the militias and the proposed federal government pursuant to the above Section 8 clauses. In No 29 there is no discussion of the personal right to bear arms.

The anti-federalists were also afraid that the proposed federal government would have power to weaken the authority of the states. The Federalist Papers No. 46 argues that the states should

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have no fear of the new federal government as the states have the capacity to resist in many ways any ambitious encroachments of the federal government. Among such means of resisting would be the state militias “with arms in their hands.” This is the only mention in The Federalist Papers of any right to bear arms and it was restricted to arms used by the militia and not for personal use.

In conclusion, except for the possession of handguns in the home for self defense and the use of firearms for other traditionally lawful purposes (such as hunting, competitions, collecting and target practice), as set forth in Heller and McDonald, the U.S. Supreme Court has decided that laws can be constitutionally passed which place reasonable restrictions on the personal use and possession of weapons, and which reasonably restrict personal ownership to the sorts of weapons in common use at that time. What are “the sorts of weapons in common use at that time” and what are reasonable restrictions are of course the difficult decisions that the legislatures will be asked to determine, the constitutionality of which will be decided ultimately by the state and federal courts. Since the Heller and McDonald decisions, the U.S. Circuit Courts of Appeals have decided both ways on the issue of whether weapons for self defense can be possessed outside of the home.

Note: Two possible references were not cited or discussed by the U.S. Supreme Court:

1. The 1870s prohibition of all weapons possession in Dodge City (which included Miss Kitty’s Long Branch Saloon) by U.S. Marshall Matt Dillon.

2. The 1857 majority opinion of Chief Justice Roger B. Taney in the Dred Scott case wherein he stated that if persons of the negro race were recognized as citizens it would give them the right “to keep and carry arms wherever they went.”

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STATE OF INDIANA ss:

COUNTY OF DEKALB

"PETITION TO HAVE TUBAL LIGATION PERFORMED ON MINOR

"Ora Spitler McFarlin, being duly sworn upon her oath states that she is the natural mother of and has custody of her daughter, Linda Spitler, age fifteen (15) being born January 24, 1956 and said daughter resides with her at 108 Iwo Street, Auburn, DeKalb County, Indiana.

"Affiant states that her daughter's mentality is such that she is considered to be somewhat retarded although she is attending or has attended the public schools in DeKalb Central School System and has been passed along with other children in her age level even though she does not have what is considered normal mental capabilities and intelligence. Further, that said affiant has had problems in the home of said child as a result of said daughter leaving the home on several occasions to associate with older youth or young men and as a matter of fact having stayed overnight with said youth or men and about which incidents said affiant did not become aware of until after such incidents occurred. As a result of this behavior and the mental capabilities of said daughter, affiant believes that it is to the best interest of said child that a Tubal Ligation be performed on said minor daughter to prevent unfortunate circumstances to occur and since it is impossible for the affiant as mother of said minor child to maintain and control a continuous observation of the activities of said daughter each and every day.

QUESTIONS

1. Q. Can a non police officer arrest another person if the non police officer has probable cause to believe that the other person has committed a felony. (Citizen’s arrest)

2. Q. If Indiana passed a law that it was a crime to attend church on Sunday afternoon unless a permit was granted, would this violate the U.S. Constitution First Amendment?

3. Q. A store owner who has been repeatedly robbed by burglars entering through a skylight rigs up a spring gun at the skylight aimed at any intruder. One night an intruder enters through the skylight and is shot and killed by the spring gun. Can the owner take a life to protect property that is not his home? Has the owner committed any crime?

4. Q. Can an Indiana prosecuting attorney file murder charges against a person or do such charges have to originate by Grand Jury Indictment? See U.S. Constitution Fifth Amendment.

5. Q. In a general election 60% of the votes for President of the United States are cast for William Jones? Is William Jones entitled to be declared the president?

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6. Q. In a felony criminal trial, if the jury finds the defendant guilty, who determines the sentence-the jury or the judge?

7. (a) What do you think the penalty should be for theft of $10.00? $1,000.00? $99,000.00?

(b) What do you think the penalty for the sale of 1 gram of cocaine should be? 3 grams? 1000 pounds?

8. Under IC 35-33-1-1, a law enforcement officer can make an arrest pursuant to an arrest warrant, for felonies and misdemeanors in the officer’s presence, failure to report certain automobile accidents, and alcohol related driving violations.

Q. In Indiana can an officer make an arrest without an arrest warrant for:

(a) speeding 120 miles per hour?

(b) failure to observe a stop sign or light?

(c) driving with expired plates, registration, or no drivers license?

(d) passing a stopped school bus with warning arm extended?

(e) speeding in a work zone?

(f) aggressive driving? See IC 9-21-8-55 for definition.

(g) reckless driving? See IC 35-42-2-2

(h) Not turning when turn signal on?

9. The following questions concern the authority of a police officer pursuant to a valid arrest and without a search warrant to make a search for and seizure of evidence without violating the rights set forth in the United States Constitution IV Amendment. If there is no search warrant the search and seizure must be reasonable. Are the following searches and possible seizures constitutional?

(a) The arrested person is searched for weapons.

(b) The area within reach of the arrested person is searched for weapons or destructible evidence.

(c) A person is arrested in his home in the entrance hall on a charge of selling drugs. Can the first floor of his home be searched for drugs?

(d) A person is stopped by police in his car for driving with no license plates. Can the police search his car?

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(e) A person is stopped by police in his car for no tail light. When checking the driver’s license of the driver, the police smell a strong odor of alcohol and bleary eyes and slurred speech of the driver.

(1) The driver is arrested for drunk driving, handcuffed and placed in a locked police car. Can the police search the passenger compartment of his car and any containers for evidence that he had been drinking?

(2) The driver is arrested, not handcuffed, and made to stand outside of the car. Can the police search the passenger compartment of his car and any containers for evidence that he had been drinking?

PROBLEMS

CASE 1: Three boys, Joe, Bill and Tom, all 18, drove by the Clark Station in Angola, Indiana, one evening. They see the attendant by the gas pumps helping a customer. There are no other customers or attendants. The boys decide that Joe will sneak into the building and see if he can get any cash from the register. Bill and Tom know Joe has a knife. Bill and Tom remain in the car parked nearby. Joe, unnoticed by the attendant, goes into the building, finds the cash register open, takes $304.00 from the register and heads for the front door. As Joe is heading for the door the attendant sees Joe and rushes toward the building, yells help to the customer at the pump, and attempts to keep the door closed and Joe trapped inside. Joe pulls a large hunting knife from his jacket and yells “Let me out or I will cut you up.” The attendant steps aside just when Joe crashes against the door. The door glass breaks and a small piece of glass cuts the hand of the attendant. The cut is minor. Joe runs to the car, jumps in and the car drives off. The attendant tells the police that he was scared that Joe would knife him and that the cut he received hurt. About ten minutes later, about two blocks away, the police see the three boys sitting at the kitchen table and dividing up the money. The boys are all arrested and later charged with robbery as a Class B felony.

A.(1) You are appointed as pauper attorney for Joe. What is the possible penalty for a Class B felony?

Assuming the above facts are correct, is Joe guilty of Robbery? Any other offense?

(2) You are appointed as pauper attorney for Bill.

Assuming the above facts are correct, is Bill guilty of Robbery? Any other offense?

(3) You are appointed as pauper attorney for Tom.

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Assuming the above facts are correct but Tom is seventeen, can Tom correctly be charged with Robbery? Any other charges?

B.Assume the same facts as above except Joe is 17 and he stabs the attendant with the knife. The attendant dies as a result of the wound one hour later.(1) Can Joe properly be charged with an “Act of delinquency, to wit; murder if he had been an adult”?

(2) Is Joe guilty of murder?

(3) Are Bill and Tom guilty of murder if they are 17?

(4) If Tom was nine years old, is he guilty of murder?

CASE 2: A homeless man enters a barn to sleep. The farmer discovers him and orders him to leave. He does leave. Has he committed any criminal offense?

CASE 3: James is awakened in his home by a strange noise outside his home. James grabs his hand gun and goes downstairs. He sees a man with a ski mask open a closed window in the den and start to climb inside the house. James fires his gun and kills the intruder.

(1) Did James have a duty to retreat if a reasonable means of retreat was available and not shoot the intruder?

(2) Does James have the defense of self defense to a charge of murder?

(3) If James had yelled stop or I will shoot and the intruder immediately climbed back out of the window and started to run away, can James follow and lawfully shoot and kill the intruder in the front yard who is still running away? Is James guilty of murder, manslaughter, reckless homicide?

CASE 4: An eighteen year old boy from Edon, Ohio, was arrested on the Indiana Toll Road by an Indiana State Police Officer for the misdemeanor charge of hitchhiking on a toll road. He was taken to the nearest toll booth building at the Angola Exit, questioned as to his name and residence, and strip searched by the officer who was looking for drugs. The police had been previously informed by Edon police that there was a gang of teenagers who worked out of the Edon area who were involved with the distribution of controlled substances and that they often transported the drugs by way of the Indiana Toll Road. The police had not been informed of the names of any of the teenagers. Ten pills containing controlled substances were found tucked into the hitchhiker’s socks. He was arrested and later the prosecuting attorney filed state felony criminal charges of possession of a controlled substance.

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Defense counsel filed a Motion to Suppress Evidence claiming that the evidence concerning the possession of drugs could not be admitted into evidence as the obtaining of such evidence by police violated his IV Amendment rights under the U.S. Constitution.

(1) How should the judge rule?

(2) Assume the hitchhiker had been found not guilty after a trial, and the Federal District Attorney then filed federal charges based upon the same facts in federal court alleging a violation of the federal controlled substances criminal law? Is this double jeopardy prohibited by the V Amendment to the U.S. Constitution?

CASE 5: A bank is robbed by a man wearing a baseball cap and dark sun glasses. William is arrested, charged with robbery, and an attorney is appointed to represent him. One week later, without notice to or presence of William’s attorney, William is directed to participate in a lineup with six other men of similar race, coloring and stature. All wore the same type of baseball cap and sunglasses. All were directed to repeat the words “Put the money in the bag” as the robber had spoken at the bank. The lineup was observed by two bank employees who positively identified William as the bank robber.

Before trial the attorney for William filed a Motion to Suppress all testimony as to the lineup identification by the two bank employees because (1) such identification may have been influenced by William’s oral statement “Put the money in the bag” that he was directed to make at the lineup and that directing him to make the statement violated his privilege against self incrimination (V Amendment) and (2) his attorney was not present which violated his right to an attorney (VI Amendment). William’s attorney also filed a Motion in Limine to exclude any identification testimony at trial by the two bank employees as their testimony would be influenced by and tainted by (the fruit of) the unconstitutional lineup.

Should the judge grant either of the motions?

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TEST BANK

In all questions, if applicable, assume that the questions ask about current Indiana law and that the crimes, procedures and activities occurred in Indiana.

TRUE AND FALSE

1. The Indiana Supreme Court has five justices.

2. The U.S. Constitution sets the number of U.S. Supreme Court Justices at nine.

3. The U.S. District Courts have jurisdiction to hear “Diversity of Citizenship” cases if the amount of damages claimed by the plaintiff are $50,000.00 or more.

4. An appeal from the U.S. District Court for the Northern District of Indiana would be made to the U.S. 7th Circuit Court of Appeals.

5. All Federal District, Circuit Court of Appeals, and Supreme Court judges are appointed for life (during good behavior) by the President with the advice and consent of the Senate.

6. If after a Circuit Court trial the defendant is found guilty of murder and the court imposes a life sentence without parole, the defendant may appeal the decision and sentence to the Indiana Appellate Court.

7. A person cannot be guilty of murder unless he knowingly or intentionally kills another human being.

8. Even though the U.S. Fifth Amendment states that no person shall be held to answer for a capital crime unless on an Indictment of a Grand Jury, Indiana does not have to follow this amendment and in Indiana a person can be charged with capital murder merely by the prosecuting attorney filing a Criminal Information with the court.

9. At a Sentencing Hearing after a murder conviction where a sentence of life without parole is sought, mitigating evidence may be submitted by the defense to show that the defendant was 17 years of age at the time the murder was committed.

10. In all state felony trials the U.S. Constitution requires that a jury consist of 12 members and before a guilty verdict can be reached by the jury, all 12 jurors must be convinced beyond a reasonable doubt that the defendant is guilty of the charged crime.

11. A Grand Jury can only issue an Indictment if they believe that there is “clear and convincing” evidence that the defendant committed the charged crime.

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12. In a criminal trial a defendant who testifies can be questioned by the prosecutor on cross examination about any previous non related convictions of Theft in order to impeach the defendant’s creditability for truth and veracity.

13. An arrest warrant can be ordered and issued by the Clerk of Court if the Clerk is presented with an Affidavit of Probable Cause sworn to by a reputable police officer and the Clerk finds probable cause to believe that the defendant named in the warrant committed the charged crime.

14. In a civil suit, the plaintiff must prove his/her cause of action by a preponderance of the evidence in order to prevail.

15. After a Complaint is filed in a civil case a warrant must be issued and served upon the defendant in order to give notice that a suit has been filed against the defendant.

16. A Petition for Writ of Certiorari is basically a request to the U.S. Supreme Court to accept an appeal from a U.S. Circuit Court of Appeals or highest state court.

17. The citation 103 F. Supp. 31 is to an opinion of a U. S. District Court found at volume 103 at page 31 of the official published law opinion.

18. A judge can order an adult person, male or female, to be sterilized if, after an appropriate hearing before the judge with notice to all interested persons and an opportunity to present evidence by all interested persons, the judge determines beyond a reasonable doubt that the person is retarded.

19. A jury can constitutionally consist of only 6 members if the charged crime is a minor felony (Class D) or a misdemeanor.

20. On appeal, a state appellate court can review a trial judge’s or jury’s verdict of guilty and reverse (send the case back to the lower court for appropriate action) if the appellate court finds that there was some evidence favorable to the state which was sufficient to sustain the verdict of guilty, but upon review of the evidence the court unanimously disagrees with the judge’s or jury’s decision.

21. If the judge appoints a highly qualified attorney to represent an indigent (poor) defendant charged with murder and the death sentence is requested by the prosecutor, the judge need not (but may) appoint co-counsel for the defendant.

22. A defendant charged with murder is entitled to be released on reasonable bail if, at a hearing requesting bail, the prosecutor cannot show that the evidence of guilt was evident or the presumption of guilt was strong.

23. At Roberts’ bail hearing, a witness testified that he “was pretty sure” that Roberts had borrowed the five gallon gas can which was found at the scene of the crime from the Renkite Shell Station.

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24. A defendant in a murder case is entitled to a change of venue to another county upon filing a Motion For a Change of Venue from the county.

25. A Motion in Limine requests the judge to limit the number of witnesses the prosecutor can call to rebut the defense of Alibi.

26. In the Roberts case, if the jury finds Roberts guilty of felony murder, and if they also find that Roberts had an unrelated prior robbery conviction, the jury would hear aggravating and mitigating evidence and then decide if Roberts should be sentenced to life imprisonment without parole or death.

27. At the voir dire examination of the prospective jurors in a felony case, both the prosecutor and the defense have unlimited challenges for cause.

28. Peremptory challenges to prospective jurors may be used to eliminate older women from being a juror.

29. A jury in a criminal felony case cannot find a defendant guilty unless each juror is convinced beyond a shadow of a doubt that the defendant is guilty.

30. The Miranda case requires that the a person charged with a crime be advised, prior to questioning, of the charges against him/her, the possible penalties, the right to a jury trial, his/her right to remain silent, that anything that he/she says can be used against him/her, and that an attorney will be appointed to represent him/her at public expense if he/she cannot afford an attorney.

31. Negligence is an example of a civil cause of action.

32. Examples of punitive damages in a civil case are damages for lost wages, medical, doctor and hospital bills, and personal injuries.

33. Upon failure of a defendant in a civil suit who has been properly served with Summons, to appear and file an appropriate Answer with the court within the time limits prescribed by civil procedure law, the judge may enter a default judgment in favor of the Plaintiff and against the Defendant for the entire amount of damages requested in the Complaint.

34. The crime of Battery is defined in IC 35-42-2-1.

35. A person who commits murder has committed a Class A felony.

36. Premeditation is an essential element of the crime of murder and must be proven by the state beyond a reasonable doubt.

37. An offense designated as an Infraction may be punishable by a fine, costs, and imprisonment not to exceed 30 days.

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38. A person who knowingly and intentionally breaks and enters the dwelling of another with no intent to commit a felony or misdemeanor, commits a Class D felony.

39. If a person knowingly and intentionally exerts unauthorized control of a candy bar worth $1.25 that belongs to another person with intent to keep and eat it, the person has committed the crime of Theft and could be sentenced to three years in prison even though it is his first offense.

40. Motive is an essential element of Class A and Class B felonies and must be proven by the prosecutor “beyond a reasonable doubt.”

41. Insanity is an affirmative defense to a criminal charge and to be a successful defense the defendant has the burden of proof to prove the defendant’s insanity “by a preponderance of the evidence.”

42. At the Initial Hearing (Arraignment), the judge, among other matters, must advise the defendant as to his/her constitutional rights, accepts the plea of the defendant, and sets an Omnibus Date, which date must be within 90 days thereafter.

43. At the Initial Hearing or a continuance thereof, the only pleas by defendant that are allowed are guilty, guilty but mentally ill, not guilty, and not guilty by reason of insanity.

44. If there is a plea by defendant of guilty but mentally ill or a finding thereof by a judge or jury at trial, the judge shall sentence the defendant in the same manner as if the defendant had plead guilty or was found guilty of the charged crime and (except for a death sentence) the defendant before regular imprisonment is first treated for such illness by the Department of Corrections or Division of Mental, Health.

45. If a person who has voluntarily become intoxicated is not able to understand that he is committing a crime (no intent), such person cannot be held criminally responsible as intent to commit a crime is an essential element of all crimes.

46. The defense of Entrapment is allowed to a defendant in a criminal action to protect citizens who are not otherwise predisposed to commit the charged crime from being induced by the police to commit the crime.

47. If a criminal defendant files a timely Notice of Alibi with the court, at the trial the defendant has the burden of proving this alibi by a preponderance of the evidence that he was somewhere else when the crime was committed and therefore could not have committed the crime.

48. In a criminal case, Preliminary Instructions are read to the jury by the prosecuting attorney to instruct the jury as to the charges against the defendant and the witnesses that the prosecutor will call to testify to prove that the defendant is guilty beyond a reasonable doubt.

49 The burden of proof requirements to prove the insanity defense in Indiana are the same as the federal defense of insanity.

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50. All sentences for felonies and misdemeanors are determined by the judge and not the jury except for a jury murder trial with a jury recommendation of either death or life without parole.

MULTIPLE CHOICE

51. In the Roberts’ case, I declared the Indiana death sentence statute unconstitutional because:

a. The North Carolina Supreme Court in Woodson v. North Carolina declared a North Carolina death sentence statute, which was similar to the Indiana statute, unconstitutional.b. The Indiana statute was a violation of the 14th Amendment to the U.S. Constitution.c. A mandatory death sentence solely by virtue of Roberts’ prior robbery was unconstitutional.d. (b) and (c). (The North Carolina Supreme Court held that the statute did not violate the Constitution)e. (a), (b) and (c).

52. Under present law, a court (judge) can declare that a law passed by the legislature is unconstitutional and void:

a. Based upon Marbury v. Madison.

b. If the court decides that the law is arbitrary and unjust and therefore violates substantive due

process (Dred Scott ).c. If the court decides that, even though rational legislators could regard the law as reasonable, the court completely disagrees with the social or economic reasons for the law.d. (a) and (b).e. (a), (b) and (c).

53. The due process clause of the 5th and 14th Amendments to the U.S. Constitution has two concepts: procedural due process and substantive due process.

a. Procedural due process means that a law must not be arbitrary and unjust, or deprive a person of fundamental rights.b. Substantive due process means that a person charged in a civil or criminal action has the right to be advised of the claim or charges against him and to be given the opportunity to defend the claim or charges before an impartial tribunal.

c. The concept of substantive due process was first set forth in Dred Scott v. Sandford.

d. (a) and (b)e. (a), (b) and (c)

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54. The United States Supreme Court has decided that protected fundamental rights under the due process clause in the 14th Amendment:

a. Includes most of the first eight amendment rights.b. Includes the right to give contraceptive information by a health clinic.c. Includes the right to be arrested for an alleged violation of state criminal law only pursuant to an arrest warrant issued by a judge after probable cause is determined by a judge or probable cause is determined by a Grand Jury.d. (a), (b) and (c)e. (a) and (b) (A person can also be arrested without an arrest warrant under certain circumstances)

55. Which of the following (is)(are) correct?

a. When the 5th Amendment was ratified, due process was considered to mean what we now call “procedural due process.”b. The first eight amendments when ratified were only intended to protect against certain federal actions and laws, and were not intended to prohibit a state from depriving a person of such rights. Example: At the time of the ratification it would not have violated the 4 th Amendment if a state policeman searched a persons’ house without a valid search warrant.c. Even though the 8th Amendment does not state specifically that all punishments shall be proportional to the offense committed, the United States Supreme Court has interpreted this amendment to include this right.d. (a), (b) and (c).

56. Gideon v. Wainwright and subsequent United States Supreme Court decisions have determined that an indigent (pauper) defendant:

a. Is entitled to an attorney at public expense if charged with a felony (serious crime) and a prison sentence is possible.b. Is entitled to an attorney at public expense if charged with a misdemeanor (minor crime) and a prison sentence is possible.c. Is entitled to an attorney at public expense if charged with an Indiana infraction and the fine can be $5,000.00 or more.d. (a), (b) and (c).e. (a) and (b). (There can be no imprisonment for an infraction and therefore not entitled to pauper counsel)

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57. The “Police Power” is:

a. The inherent power or authority of the U.S. Congress, without express or implied constitutional authority, to pass laws in the public interest to protect the public health, safety and morals.b. The inherent power or authority of a state legislature, without express or implied state constitutional authority, to pass laws in the public interest to protect the public health, safety and morals.c. The powers of the police to make arrests (as limited by the Indiana and Federal Constitutions).d. (a) and (b).

58 Most delegates to the Constitutional Convention of 1787:

a. Realized that the Articles of Confederation were inadequate.b. Consisted of 55 men from 13 states (the 13 previous colonies).c. Decided to abolish slavery as of 1808 (See Article I Section 9 of U.S. Constitution).d. Had three women as delegates.e. (a) and (b).

59. The 1788 U.S. Constitution provided:

a. That members of Congress ( the House of Representatives and Senate) shall be elected directly by the people.b. That the President shall be elected directly by the people.c. That members of the federal judiciary shall be appointed by the President for a term of 12 years with the advice and consent of the Senate.d. (a) and (b).e. None of the above.

60. The Article I Sec. 8 power of Congress:

a. The power of Congress to regulate commerce was given a broad interpretation in Gibbons v. Ogden (1824).

b. To create a national bank was denied because there was no express authority in the U.S.

Constitution to do so. McCulloch v. Maryland (1819).

c. Was limited by the U.S. Supreme Court to those expressly stated in Sec. 8.d. (b) and (c).

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61. Article I of the 1788 U.S. Constitution provided:

a. Express powers of Congress which were later expanded by the U.S. Supreme Court to grant implied powers by the necessary and proper clause.b. That Congress can establish a U.S. Supreme Court and lower federal courts.c. That the importation of slaves shall not be prohibited by Congress for 30 years.d. That the Senate shall be elected by the people for a term of six years.e. All of the above.

62. The U.S. Constitution as interpreted by the U.S. Supreme Court, and/or Indiana law provides:

a. That a person cannot be arrested by a policeman for a felony without an arrest warrant duly approved by a judge.b. That if a person is arrested by a policeman pursuant to an arrest warrant in his home on a charge of selling drugs at a nearby Mall, the first floor of his home can be searched for drugs by the police without a search warrant as a search incident to an arrest.c. That a person can be arrested by a policeman without an arrest warrant for driving without a valid drivers license.d. None of the above.

63. Common Law:

a. Is judge made law rather than a law enacted by a state legislature.b. Is illustrated by the tort of negligence.c. Was at first very rigid in its rules and therefore gave rise to the creation of Courts of Equity to allow equitable remedies ( Example: Specific Performance) when the rigid rules first established by the English courts of common law did not allow a remedy.d. (a) and (b).e. (a), (b) and (c).

64. A wife in an Indiana absolute divorce proceedings:

a. Can have a jury decide all issues if a timely request is made.b. Can request an alimony order against her husband even though she is not disabled.c. Can obtain a divorce based upon impotence of her husband which began after the marriage.d. Is entitled to one-half of all of the net assets owned by the parties accumulated during marriage.e. None of the above.

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65. If an Indiana resident husband dies testate (with a will), is survived by a wife, and owns an interest in real estate in Indiana which it titled as Tenants by the Entireties:

a. The terms of the probated will of the decedent husband determines who will inherit and own the real estate. b. The decedent husband’s heirs as determined by Indiana statute will inherit and own the real estate.c. The decedent husband’s wife becomes the owner of and has the entire title to the real estate at decedent’s death.d. The decedents husband’s wife owns one-half of the real estate at decedent’s death and the other one-half is owned pursuant to the terms of the probated will. 66. A 16 year old buyer and adult seller enter into a contract to buy and sell a used car for $3000.00. The car is to be used by buyer for pleasure only.

a. The buyer can use the car for a year, then while still a minor, disaffirm the contract, return the car to the seller, and recover from the seller any purchase price paid to seller.b. The car purchase contract is unenforceable by either the seller or buyer if the contract is not in a sufficient writing.c. The car purchase contract is unenforceable by either the seller or buyer if the contract is made on a Sunday.d. (a) and (b).

67. Under Indiana tort and statutory law:

a. Assumption of Risk as a defense is not available to an employer defendant to avoid liability in a claim made by an injured employee under the Workers Compensation laws.b. A retailer like Menards is liable to a buyer for injuries to the buyer caused by a product such as a lawn mower which was in a defective and unreasonably dangerous condition even though the retailer did not know that the product was defective and unreasonably dangerous.c. A manufacturer like Toro is liable to a buyer for injuries to the buyer caused by a product such as a lawn mower which was in a defective and unreasonably dangerous condition even though the manufacturer did not know that the product was defective and unreasonably dangerous.d. (a), (b) and (c).

68. Present Indiana criminal law provides that if the prosecuting attorney has requested the death sentence and there is no insanity or mental retardation plea, and if the jury decides that an adult defendant is guilty of murder:a. The jury must sentence the defendant to death if the defendant has previously been convicted of murder.

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b. The jury must sentence the defendant to death if the defendant, while serving a life imprisonment sentence, is found guilty of murdering a prison guard.c. The jury, after considering evidence of aggravating and mitigating circumstances, may recommend a sentence of death, life imprisonment, life imprisonment without parole, or a prison term of between 45 and 65 years to be determined by the judge.d. (b) and (c).e. None of the above.

69. Present Indiana criminal law provides that if the prosecuting attorney has not requested the death sentence or life without parole and there is no insanity plea, and if the jury decides that an adult defendant is guilty of murder:

a. The jury, after hearing evidence of aggravating and mitigating circumstances, may recommend a sentence of 65 years imprisonment.b. The jury, after hearing evidence of aggravating and mitigating circumstances, may recommend a sentence of 45 years imprisonment.c. The jury does not hear evidence of aggravating and mitigating circumstances and must recommend a sentence of between 45 and 65 years imprisonment, the exact amount of years to be determined by the judge.d. None of the above.

70. If a person is 17 years of age, a Petition Alleging Delinquency may properly be filed with the Juvenile Court by the prosecuting attorney which alleges that such person:

a. Violated IC 35-45-9-3 Criminal Gang Activity.b. Violated IC 35-42-5-1 Robbery if such person was not armed and no bodily injury resulted.c. Violated IC 35-43-2-1 Burglary.d. (b) and (c).e. (a), (b) and (c).

71. If a defendant is charged as an adult (after waiver if necessary) and is convicted of murder by a judge or jury:

a. A defendant who was 14 years old at the time of the murder may be sentenced to life imprisonment without parole if the prosecuting attorney has requested such a sentence.b. A defendant who was 17 years old at the time of the murder may be sentenced to death if the prosecuting attorney has requested such a sentence. c. A defendant who was 18 years old at the time of the murder may be sentenced to life imprisonment with possibility of parole (because of his young age) if the prosecuting attorney has requested such a sentence.d. None of the above.

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e. (a) and (c).

72. If a juvenile court initially has jurisdiction over a child, and the prosecuting attorney files a Waiver Petition, the charges and the child shall (subject to the juvenile judge’s statutory required findings) be waived to an adult criminal court in the following circumstances:

a. The child was 12 years old at the time of the offense and is charged with an act that would be Murder if committed by an adult.b. The child was 16 years old at the time of the offense and is charged with an act that would be Burglary of a Dwelling if committed by an adult.c. The child was 17 years old at the time of the offense, is 18 years old when the Petition Alleging Delinquency is filed, is charged with an act that would be Theft of $100,000.00 if committed by an adult, and the child has not been previously convicted of a felony or misdemeanor.d. (a) and (b).e. (a), (b) and (c).

73. Under Indiana Juvenile Procedure:

a. A child is entitled to a jury at the Factfinding Hearing to decide if the child has committed the Act of Delinquency.b. A child taken into custody pursuant to a Petition Alleging Delinquency is entitled to be released on reasonable bail if a Detention Hearing is not held within 24 hours (excluding Saturdays, Sundays and Holidays) after being taken into custody.c. Only the prosecuting attorney can file a request for a waiver to adult criminal court.d. At a Factfinding Hearing, if the delinquency is denied, the state (through the prosecuting attorney) has the burden of proving by clear and convincing evidence that the child committed the delinquent act. e. None of the above.

74. Administrative agencies are:

a. Created by an act of Congress and/or state legislatures.b. Created by an enabling act (law) which act to be constitutional must provide the purpose, powers and duties of the agency, and provide reasonable standards in implementing the act.c. Subject to judicial review as to their decisions.d. (a), (b) and (c).

75. The facts in Korematsu v. U.S. (1944) state that the President issued a federal Executive Order in 1942 which ordered that Americans of Japanese descent (including

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Korematsu) be taken immediately from their homes in California and removed to concentration camps away from the west coast. Which of the following are correct legal principles in favor of Korematsu which should have been approved by the Supreme Court?

a. That since he was not allowed to have a hearing before a judge before removal, he was deprived by the federal government of procedural due process under the 5th Amendment.b. That since he was not allowed to have a hearing before a judge before removal, he was deprived by the federal government of procedural due process under the 14h Amendment.c. That the order was a violation of his of equal protection rights under the 14th Amendment.d. (a) and (b).

QUESTIONS

(With Answers in Bold)

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1. Q. Can a non police officer arrest another person if the non police officer has probable cause to believe that the other person has committed a felony. (Citizen’s arrest)

A. Yes if the felony has actually been committed. IC 35-33-1-4

2. Q. If Indiana passed a law that it was a crime to attend church on Sunday afternoon unless a permit was granted, would this violate the U.S. Constitution First Amendment?

A. No. The First Amendment applies only to federal action, not state. However, the rights set forth in this amendment are protected from state action by the 14 th Amendment, due process clause (substantive due process).

3. Q. A store owner who has been repeatedly robbed by burglars entering through a skylight rigs up a spring gun at the skylight aimed at any intruder. One night an intruder enters through the skylight and is shot and killed by the spring gun. Can the owner take a life to protect property that is not his home? Has the owner committed any crime?

A. Yes. No crime has been committed. IC 35-41-3-2(e) and (c) if this is a “forcible felony”

4. Q. Can an Indiana prosecuting attorney file murder charges against a person or do such charges have to originate by Grand Jury Indictment? See U.S. Constitution Fifth Amendment.

A. Prosecuting attorney in Indiana may file murder charges. The Fifth Amendment applies only to federal criminal actions.

5. Q. In a general election 60% of the votes for President of the United States are cast for William Jones? Is William Jones entitled to be declared the president?

A. No. The electoral college (538 members) elects a president. Article II Section 1

6. Q. In a felony criminal trial, if the jury finds the defendant guilty, who determines the sentence-the jury or the judge?

A. The judge determines the penalty IC 35-50-1-1 except for the death sentence or life without parole IC 35-50-2-9(d)

7. (a) What do you think the penalty should be for theft of $10.00? $1,000.00? $99,000.00?

IC 35-43-4-2 All are Class D felony: 6 mo. to three years for 1 cent to $99,999.00. Note: New penalties as of July 1, 2014.

(b) What do you think the penalty for the sale of 1 gram of cocaine should be? 3 grams? 1000 pounds?

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Up to three grams is a Class B Felony IC 35-48-4-1. 6 to 20 years. Three grams or more is a class A felony 20 to 50 years ( Same as voluntary manslaughter with a deadly weapon, kidnapping, rape with a deadly weapon and child molesting. Note: New penalties as of July 1, 2014. Texas: 2 to 20 years. Wisconsin: 0 to 12.5 years. Ohio: Probation to 1 year.

8. Under IC 35-33-1-1, a law enforcement officer can make an arrest pursuant to an arrest warrant, for felonies and misdemeanors in the officer’s presence, failure to report certain automobile accidents, and alcohol related driving violations.

Q. In Indiana can an officer make an arrest without an arrest warrant for:

(a) speeding 120 miles per hour?

(b) failure to observe a stop sign or light?

(c) driving with expired plates, registration, or no drivers license?

(d) passing a stopped school bus with warning arm extended?

(e) speeding in a work zone?

(f) aggressive driving? See IC 9-21-8-55 for definition.

(g) reckless driving? See IC 35-42-2-2

(h) Not turning when turn signal on?

A. (a) through (c), unless the speeding is considered reckless driving, are infractions and therefore can not arrest.

(d) through (g) are Criminal Recklessness IC 35-42-2-2, are misdemeanors, and therefore can arrest.

(h) is not a violation of law and therefore can not arrest and can not make a traffic stop.

Note: Police can make a traffic stop of a vehicle without an arrest warrant and ask for ID and registration, only if there is (1) reasonable suspicion of criminal activity or (2) an observed traffic violation. State v. Rhodes 950 NE2d 1261 Killebrew II v. Indiana (2012)

9. The following questions concern the authority of a police officer pursuant to a valid arrest and without a search warrant to make a search for and seizure of evidence without violating the rights set forth in the United States Constitution IV Amendment. If there is no search warrant the search and seizure must be reasonable. Are the following searches and possible seizures constitutional?

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(a) The arrested person is searched for weapons.

(b) The area within reach of the arrested person is searched for weapons or destructible evidence.

(c) A person is arrested in his home in the entrance hall on a charge of selling drugs. Can the first floor of his home be searched for drugs?

(d) A person is stopped by police in his car for driving with no license plates. Can the police search his car?

(e) A person is stopped by police in his car for no tail light. When checking the driver’s license of the driver, the police smell a strong odor of alcohol and bleary eyes and slurred speech of the driver.

(1) The driver is arrested for drunk driving, handcuffed and placed in a locked police car. Can the police search the passenger compartment of his car and any containers for evidence that he had been drinking?

(2) The driver is arrested, not handcuffed, and made to stand outside of the car. Can the police search the passenger compartment of his car and any containers for evidence that he had been drinking?

A. (a) Yes. It is a valid search incident to an arrest.

(b) Yes. It is a valid search incident to an arrest.

(c) No.

(d) No. He cannot be arrested in Indiana because this is only an infraction. A search would not be incident to an arrest and even if arrested would not provide evidence that he had committed the offense for which he was arrested-no license plate.

(e) 1 Yes. If a person is arrested and secured (and therefore can not reach a weapon or destructible evidence) the vehicle passenger compartment can not be searched unless it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle.

(e) 2 Yes. He is unsecured and therefore, if he is within reaching distance of the passenger compartment, the police can search the compartment for weapons. Also the search is permissible in order to look for evidence that he had been drinking.

Arizona v. Gant, 129 Sup. Ct. 1710 (2009), states that the police may only search a passenger compartment and containers therein following arrest of a recent occupant: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment

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at the time of the search or (2) when it is reasonable to believe (not suspect) that evidence relevant to the crime of arrest might be found in the vehicle.

Therefore, for example, if arrested for a driving while impaired charge, drug offense, theft, or a weapons possession charge, a person can have his passenger compartment searched for evidence of the crime even though he is secured and in the police car. Since the search is legal, evidence found in the search of any other crime is admissible evidence. Ex: Arrested for a drug offense and an unregistered weapon is found. If arrested and unsecured, and within reach of the passenger compartment, a search of the passenger compartment may be made for weapons or destructible evidence.

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PROBLEMS

(With Answers in Bold)

CASE 1: Three boys, Joe, Bill and Tom, all 18, drove by the Clark Station in Angola, Indiana, one evening. They see the attendant by the gas pumps helping a customer. There are no other customers or attendants. The boys decide that Joe will sneak into the building and see if he can get any cash from the register. Bill and Tom know Joe has a knife. Bill and Tom remain in the car parked nearby. Joe, unnoticed by the attendant, goes into the building, finds the cash register open, takes $304.00 from the register and heads for the front door. As Joe is heading for the door the attendant sees Joe and rushes toward the building, yells help to the customer at the pump, and attempts to keep the door closed and Joe trapped inside. Joe pulls a large hunting knife from his jacket and yells “Let me out or I will cut you up.” The attendant steps aside just when Joe crashes against the door. The door glass breaks and a small piece of glass cuts the hand of the attendant. The cut is minor. Joe runs to the car, jumps in and the car drives off. The attendant tells the police that he was scared that Joe would knife him and that the cut he received hurt. About ten minutes later, about two blocks away, the police see the three boys sitting at the kitchen table and dividing up the money. The boys are all arrested and later charged with robbery as a Class B felony.

A.(1) You are appointed as pauper attorney for Joe. What is the possible penalty for a Class B felony?

6-20 years plus a fine of not to exceed $10,000.00.

Assuming the above facts are correct, is Joe guilty of Robbery? Any other offense?

No. The cash was not taken from another person or in the presence of another person. Robbery 35-42-5-1

Yes. Theft IC 35-43-4-2 Class D felony 6 mo.-3 years plus a fine of not to exceed $10,000.00 to Misdemeanor A

Perhaps Burglary. Was there a “breaking”? Was the door open? Class A felony if resulted in bodily injury.

(2) You are appointed as pauper attorney for Bill.

Assuming the above facts are correct, is Bill guilty of Robbery? Any other offense?

No. Perhaps accessory to Theft or Burglary. Aiding IC 35-41-2-4 pg. 267

(3) You are appointed as pauper attorney for Tom.

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Assuming the above facts are correct but Tom is seventeen, can Tom correctly be charged with Robbery? Any other charges?

If it had been robbery while armed with a deadly weapon (knife) and since Tom is 17, the juvenile court has no jurisdiction, IC 31-30-1-4(a)(6)(A), and adult robbery charges could be filed. If burglary, then a Petition Alleging Delinquency could be filed IC 31-37-1, but can be waived to adult court and charged with burglary since Tom is over 16 and it is Class B (maybe Class A) felony IC 31-30-3-5. If theft, since this is a Class D felony, Petition Alleging Delinquency but no waiver is allowed. Note: If any felony delinquency committed and there is a previous conviction of an adult felony or adult misdemeanor other than traffic, then mandatory waiver IC 31-30-3-6.

B.Assume the same facts as above except Joe is 17 and he stabs the attendant with the knife. The attendant dies as a result of the wound one hour later.(1) Can Joe properly be charged with an “Act of delinquency, to wit; murder if he had been an adult”?

No. Juvenile court lacks jurisdiction. IC 31-30-1-4.

(2) Is Joe guilty of murder?

Yes. IC 35-42-1-1. (1)Regular murder: A person is deemed to intend the natural consequences of his act, and (2) Felony Murder: He has probably committed burglary (was the station door open?)

(3) Are Bill and Tom guilty of murder if they are 17?

Yes. Aiding IC 35-41-2-4.

(4) If Tom was nine years old, is he guilty of murder?

No. The juvenile court cannot waive unless 10 years old. IC 31-30-3-4.

CASE 2: A homeless man enters a barn to sleep. The farmer discovers him and orders him to leave. He does leave. Has he committed any criminal offense?

See Criminal Trespass IC 35-43-2-2(a)(1). No trespass unless denied entry by posting no trespass notice (b).

CASE 3: James is awakened in his home by a strange noise outside his home. James grabs his hand gun and goes downstairs. He sees a man with a ski mask open a closed window in the den and start to climb inside the house. James fires his gun and kills the intruder.

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(1) Did James have a duty to retreat if a reasonable means of retreat was available and not shoot the intruder? No. IC 35-41-3-2(d)(2)

(2) Does James have the defense of self defense to a charge of murder? Yes IC 35-41-3-2(d).

(3) If James had yelled stop or I will shoot and the intruder immediately climbed back out of the window and started to run away, can James follow and lawfully shoot and kill the intruder in the front yard who is still running away? Is James guilty of murder, manslaughter, reckless homicide?

No. IC 35-41-3-3(a) Is James guilty of Murder (Yes), or Voluntary or Involuntary Manslaughter (No), or Reckless Homicide (Yes)? A grand jury usually will not indict the home owner.

CASE 4: An eighteen year old boy from Edon, Ohio, was arrested on the Indiana Toll Road by an Indiana State Police Officer for the misdemeanor charge of hitchhiking on a toll road. He was taken to the nearest toll booth building at the Angola Exit, questioned as to his name and residence, and strip searched by the officer who was looking for drugs. The police had been previously informed by Edon police that there was a gang of teenagers who worked out of the Edon area who were involved with the distribution of controlled substances and that they often transported the drugs by way of the Indiana Toll Road. The police had not been informed of the names of any of the teenagers. Ten pills containing controlled substances were found tucked into the hitchhiker’s socks. He was arrested and later the prosecuting attorney filed state felony criminal charges of possession of a controlled substance.

Defense counsel filed a Motion to Suppress Evidence claiming that the evidence concerning the possession of drugs could not be admitted into evidence as the obtaining of such evidence by police violated his IV Amendment rights under the U.S. Constitution.

(1) How should the judge rule?

The motion should be granted. The search was an unreasonable search and seizure. There was no probable cause to believe that this hitchhiker was violating any drug laws and a search would not have provided evidence that he was hitchhiking, the offense for which he was arrested. Compare with an automobile driver being stopped for a tail light out, the officer questions the driver as to his registration and license (the officer cannot search the driver or his car at this point), the officer then observes what appears to be a sawed off shotgun in plain view, and the officer seizes the weapon. This is a reasonable search and seizure of the weapon

Do the U.S. IV Amendment rights apply to action by a state police officer? Yes. It is incorporated as part of substantive due process under the XIV Amendment which applies to states.

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(2) Assume the hitchhiker had been found not guilty after a trial, and the Federal District Attorney then filed federal charges based upon the same facts in federal court alleging a violation of the federal controlled substances criminal law? Is this double jeopardy prohibited by the V Amendment to the U.S. Constitution?

No. The state charged offense and the federal charged offense are considered as different offenses.

CASE 5: A bank is robbed by a man wearing a baseball cap and dark sun glasses. William is arrested, charged with robbery, and an attorney is appointed to represent him. One week later, without notice to or presence of William’s attorney, William is directed to participate in a lineup with six other men of similar race, coloring and stature. All wore the same type of baseball cap and sunglasses. All were directed to repeat the words “Put the money in the bag” as the robber had spoken at the bank. The lineup was observed by two bank employees who positively identified William as the bank robber.

Before trial the attorney for William filed a Motion to Suppress all testimony as to the lineup identification by the two bank employees because (1) such identification may have been influenced by William’s oral statement “Put the money in the bag” that he was directed to make at the lineup and that directing him to make the statement violated his privilege against self incrimination (V Amendment) and (2) his attorney was not present which violated his right to an attorney (VI Amendment). William’s attorney also filed a Motion in Limine to exclude any identification testimony at trial by the two bank employees as their testimony would be influenced by and tainted by (the fruit of) the unconstitutional lineup.

Should the judge grant either of the motions?

Objection 1: No. The privilege against incrimination is only for oral testimony where the facts spoken are proposed to be used as evidence of guilt at trial against an accused. However, testimony at trial by the bank employees as to what the defendant said at the lineup will not be allowed at trial.

Handwriting samples, blood tests, hair samples, DNA samples, fingerprints and breathalyzers are permissible.

Objection 2: An attorney should be notified and permitted to be present at a lineup at a critical stage of the prosecution (Ex: After charges are filed). Unless the proposed in court identification testimony has an independent origin or the admission would be harmless, the proposed identification testimony should be excluded. U.S. v Wade 388 U.S. 218 (1967).

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TEST BANK

(With Answers in Bold)

In all questions, if applicable, assume that the questions ask about current Indiana law and that the crimes, procedures and activities occurred in Indiana.

TRUE AND FALSE

1. The Indiana Supreme Court has five justices. T (pg. 198)

2. The U.S. Constitution sets the number of U.S. Supreme Court Justices at nine. F (The Constitution states nothing about the number pgs. 197-8)

3. The U.S. District Courts have jurisdiction to hear “Diversity of Citizenship” cases if the amount of damages claimed by the plaintiff are $50,000.00 or more. F ($75,000.00 or more pg. 197-8)

4. An appeal from the U.S. District Court for the Northern District of Indiana would be made to the U.S. 7th Circuit Court of Appeals. T (pg. 199)

5. All Federal District, Circuit Court of Appeals, and Supreme Court judges are appointed for life (during good behavior) by the President with the advice and consent of the Senate. T (pgs. 197-8)

6. If after a Circuit Court trial the defendant is found guilty of murder and the court imposes a life sentence without parole, the defendant may appeal the decision and sentence to the Indiana Appellate Court. F (Case goes directly to the Indiana Supreme Court pg. 198-9)

7. A person cannot be guilty of murder unless he knowingly or intentionally kills another human being. F (He can also be guilty of felony murder where there is no intent to kill and fetus murder IC 35-42-1-1 (2, 3 and 4) pg. 216)

8. Even though the U.S. Fifth Amendment states that no person shall be held to answer for a capital crime unless on an Indictment of a Grand Jury, Indiana does not have to follow this amendment and in Indiana a person can be charged with capital murder merely by the prosecuting attorney filing a Criminal Information with the court. T (pgs. 37-38)

9. At a Sentencing Hearing after a murder conviction where a sentence of life without parole is sought, mitigating evidence may be submitted by the defense to show that the defendant was 17 years of age at the time the murder was committed. T (See list of mitigating factors in the Indiana statute pg. 246-7)

10. In all state felony trials the U.S. Constitution requires that a jury consist of 12 members and before a guilty verdict can be reached by the jury, all 12 jurors must be convinced beyond a

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reasonable doubt that the defendant is guilty of the charged crime. F (Six member jury permitted for lesser felonies pg. 52)

11. A Grand Jury can only issue an Indictment if they believe that there is “clear and convincing” evidence that the defendant committed the charged crime. F (The grand jury is only required to find that probably the defendant committed the crime pg. 37)

12. In a criminal trial a defendant who testifies can be questioned by the prosecutor on cross examination about any previous non related convictions of Theft in order to impeach the defendant’s creditability for truth and veracity. T (But only theft or robbery, not other crimes pg. 113)

13. An arrest warrant can be ordered and issued by the Clerk of Court if the Clerk is presented with an Affidavit of Probable Cause sworn to by a reputable police officer and the Clerk finds probable cause to believe that the defendant named in the warrant committed the charged crime. F (Only a judge can authorize an arrest warrant pgs. 278 and 254)

14. In a civil suit, the plaintiff must prove his/her cause of action by a preponderance of the evidence in order to prevail. T (pg. 197)

15. After a Complaint is filed in a civil case a warrant must be issued and served upon the defendant in order to give notice that a suit has been filed against the defendant. F (A warrant is a criminal concept, not civil. In a civil suit, a summons is issued to give notice of suit pg. 197)

16. A Petition for Writ of Certiorari is basically a request to the U.S. Supreme Court to accept an appeal from a U.S. Circuit Court of Appeals or highest state court. T (pg. 197)

17. The citation 103 F. Supp. 31 is to an opinion of a U. S. District Court found at volume 103 at page 31 of the official published law opinion. T (pg. 167)

18. A judge can order an adult person, male or female, to be sterilized if, after an appropriate hearing before the judge with notice to all interested persons and an opportunity to present evidence by all interested persons, the judge determines beyond a reasonable doubt that the person is retarded. F (Even though this would satisfy procedural requirements of due process, it would not be authorized now under substantive due process as arbitrary and unreasonable. Even the law that was upheld was for institutionalized persons only. pg. 185)

19. A jury can constitutionally consist of only 6 members if the charged crime is a minor felony (Class D) or a misdemeanor. T (pg. 52)

20. On appeal, a state appellate court can review a trial judge’s or jury’s verdict of guilty and reverse (send the case back to the lower court for appropriate action) if the appellate court finds

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that there was some evidence favorable to the state which was sufficient to sustain the verdict of guilty, but upon review of the evidence the court unanimously disagrees with the judge’s or jury’s decision. F (Only if there is no possible evidence to sustain a verdict of guilty or there are prejudicial errors made by the judge in his rulings can an appellate court reverse. pg. 33)

21. If the judge appoints a highly qualified attorney to represent an indigent (poor) defendant charged with murder and the death sentence is requested by the prosecutor, the judge need not (but may) appoint co-counsel for the defendant. F Pg. 41

22. A defendant charged with murder is entitled to be released on reasonable bail if, at a hearing requesting bail, the prosecutor cannot show that the evidence of guilt was evident or the presumption of guilt was strong. T (pg. 42)

23. At Roberts’ bail hearing, a witness testified that he “was pretty sure” that Roberts had borrowed the five gallon gas can which was found at the scene of the crime from the Renkite Shell Station. F (Both witnesses stated that Roberts had not borrowed the gas can)

24. A defendant in a murder case is entitled to a change of venue to another county upon filing a Motion For a Change of Venue from the county. F (Must prove at a hearing before a judge that the defendant probably could not get a fair trial in the county pg. 44)

25. A Motion in Limine requests the judge to limit the number of witnesses the prosecutor can call to rebut the defense of Alibi. F (Motion asks that certain evidence not be presented at trial pg. 48)

26. In the Roberts case, if the jury finds Roberts guilty of felony murder, and if they also find that Roberts had an unrelated prior robbery conviction, the jury would hear aggravating and mitigating evidence and then decide if Roberts should be sentenced to life imprisonment without parole or death. F (That is the law in Indiana now but not under the statute when Roberts was tried)

27. At the voir dire examination of the prospective jurors in a felony case, both the prosecutor and the defense have unlimited challenges for cause. T (pg. 54)

28. Peremptory challenges to prospective jurors may be used to eliminate older women from being a juror. T (pg. 54)

29. A jury in a criminal felony case cannot find a defendant guilty unless each juror is convinced beyond a shadow of a doubt that the defendant is guilty. F (The burden is “beyond a reasonable doubt” pgs. 197 and 276)

30. The Miranda case requires that the a person charged with a crime be advised, prior to questioning, of the charges against him/her, the possible penalties, the right to a jury trial, his/her

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right to remain silent, that anything that he/she says can be used against him/her, and that an attorney will be appointed to represent him/her at public expense if he/she cannot afford an attorney. F (Miranda only requires that a person be notified of his right to remain silent and to have an attorney appointed to represent him at no expense pgs. 99 and 187)

31. Negligence is an example of a civil cause of action. T (pgs. 189, 203 and 197)

32. Examples of punitive damages in a civil case are damages for lost wages, medical, doctor and hospital bills, and personal injuries. F (These are compensatory damages pg. 202-3)

33. Upon failure of a defendant in a civil suit who has been properly served with Summons, to appear and file an appropriate Answer with the court within the time limits prescribed by civil procedure law, the judge may enter a default judgment in favor of the Plaintiff and against the Defendant for the entire amount of damages requested in the Complaint. T (pg. 197)

34. The crime of Battery is defined in IC 35-42-2-1. T (pg. 218)

35. A person who commits murder has committed a Class A felony. F (Murder is a separate offense from a Class A Felony pg. 216)

36. Premeditation is an essential element of the crime of murder and must be proven by the state beyond a reasonable doubt. F (Premeditation is no longer required pg. 216)

37. An offense designated as an Infraction may be punishable by a fine, costs, and imprisonment not to exceed 30 days. F (Infractions can only be punished by a fine and costs pg. 215)

38. A person who knowingly and intentionally breaks and enters the dwelling of another with no intent to commit a felony or misdemeanor, commits a Class D felony. T (The crime of Residential Entry pg. 232)

39. If a person knowingly and intentionally exerts unauthorized control of a candy bar worth $1.25 that belongs to another person with intent to keep and eat it, the person has committed the crime of Theft and could be sentenced to three years in prison even though it is his first offense. T (pgs. 235 and 245)

40. Motive is an essential element of Class A and Class B felonies and must be proven by the prosecutor “beyond a reasonable doubt.” F (Evidence of motive may be introduced at trial but motive is not an essential element of any crime pgs. 95-6)

41. Insanity is an affirmative defense to a criminal charge and to be a successful defense the defendant has the burden of proof to prove the defendant’s insanity “by a preponderance of the evidence.” T (pgs. 276 and 279)

42. At the Initial Hearing (Arraignment), the judge, among other matters, must advise the defendant as to his/her constitutional rights, accepts the plea of the defendant, and sets an

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Omnibus Date, which date must be within 90 days thereafter. F (Must be within 45-75 days pg. 279)

43. At the Initial Hearing or a continuance thereof, the only pleas by defendant that are allowed are guilty, guilty but mentally ill, not guilty, and not guilty by reason of insanity. F (Not guilty by reason of insanity is not a proper plea. Insanity is a defense which is properly raised by Notice pgs. 273 and 279)

44. If there is a plea by defendant of guilty but mentally ill or a finding thereof by a judge or jury at trial, the judge shall sentence the defendant in the same manner as if the defendant had plead guilty or was found guilty of the charged crime and (except for a death sentence) the defendant before regular imprisonment is first treated for such illness by the Department of Corrections or Division of Mental, Health. T (pg. 275)

45. If a person who has voluntarily become intoxicated is not able to understand that he is committing a crime (no intent), such person cannot be held criminally responsible as intent to commit a crime is an essential element of all crimes. F (pg. 271)

46. The defense of Entrapment is allowed to a defendant in a criminal action to protect citizens who are not otherwise predisposed to commit the charged crime from being induced by the police to commit the crime. T (pg. 272)

47. If a criminal defendant files a timely Notice of Alibi with the court, at the trial the defendant has the burden of proving this alibi by a preponderance of the evidence that he was somewhere else when the crime was committed and therefore could not have committed the crime. F (The defendant has no burden. An Alibi Notice is to give the prosecution an opportunity to investigate the alleged alibi. The state must prove all essential elements of a charged crime beyond a reasonable doubt including the fact that the defendant’s alibi is not true pgs. 49 and 279)

48. In a criminal case, Preliminary Instructions are read to the jury by the prosecuting attorney to instruct the jury as to the charges against the defendant and the witnesses that the prosecutor will call to testify to prove that the defendant is guilty beyond a reasonable doubt. F (Preliminary Instructions are given to the jury by the judge, Chapter 13)

49 The burden of proof requirements to prove the insanity defense in Indiana are the same as the federal defense of insanity. F (pg. 201)

50. All sentences for felonies and misdemeanors are determined by the judge and not the jury except for a jury murder trial with a jury recommendation of either death or life without parole. T (A murder trial jury, not the judge, determines and recommends death or life without parole which a judge must impose. pgs. 242, 247 and 277. If the jury cannot agree, the judge determines the sentence. Pg. 248)

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MULTIPLE CHOICE

51. In the Roberts’ case, I declared the Indiana death sentence statute unconstitutional because:

a. The North Carolina Supreme Court in Woodson v. North Carolina declared a North Carolina death sentence statute, which was similar to the Indiana statute, unconstitutional.b. The Indiana statute was a violation of the 14th Amendment to the U.S. Constitution.c. A mandatory death sentence solely by virtue of Roberts’ prior robbery was unconstitutional.d. (b) and (c). (The North Carolina Supreme Court held that the statute did not violate the Constitution)e. (a), (b) and (c).

52. Under present law, a court (judge) can declare that a law passed by the legislature is unconstitutional and void:

a. Based upon Marbury v. Madison.

b. If the court decides that the law is arbitrary and unjust and therefore violates substantive due

process (Dred Scott ).c. If the court decides that, even though rational legislators could regard the law as reasonable, the court completely disagrees with the social or economic reasons for the law.d. (a) and (b).e. (a), (b) and (c).

53. The due process clause of the 5th and 14th Amendments to the U.S. Constitution has two concepts: procedural due process and substantive due process.

a. Procedural due process means that a law must not be arbitrary and unjust, or deprive a person of fundamental rights.b. Substantive due process means that a person charged in a civil or criminal action has the right to be advised of the claim or charges against him and to be given the opportunity to defend the claim or charges before an impartial tribunal.

c. The concept of substantive due process was first set forth in Dred Scott v. Sandford.

d. (a) and (b)e. (a), (b) and (c)

54. The United States Supreme Court has decided that protected fundamental rights under the due process clause in the 14th Amendment:

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a. Includes most of the first eight amendment rights.b. Includes the right to give contraceptive information by a health clinic.c. Includes the right to be arrested for an alleged violation of state criminal law only pursuant to an arrest warrant issued by a judge after probable cause is determined by a judge or probable cause is determined by a Grand Jury.d. (a), (b) and (c)e. (a) and (b) (A person can also be arrested without an arrest warrant under certain circumstances)

55. Which of the following (is)(are) correct?

a. When the 5th Amendment was ratified, due process was considered to mean what we now call “procedural due process.”b. The first eight amendments when ratified were only intended to protect against certain federal actions and laws, and were not intended to prohibit a state from depriving a person of such rights. Example: At the time of the ratification it would not have violated the 4 th Amendment if a state policeman searched a persons’ house without a valid search warrant.c. Even though the 8th Amendment does not state specifically that all punishments shall be proportional to the offense committed, the United States Supreme Court has interpreted this amendment to include this right.d. (a), (b) and (c).

56. Gideon v. Wainwright and subsequent United States Supreme Court decisions have determined that an indigent (pauper) defendant:

a. Is entitled to an attorney at public expense if charged with a felony (serious crime) and a prison sentence is possible.b. Is entitled to an attorney at public expense if charged with a misdemeanor (minor crime) and a prison sentence is possible.c. Is entitled to an attorney at public expense if charged with an Indiana infraction and the fine can be $5,000.00 or more.d. (a), (b) and (c).e. (a) and (b). (There can be no imprisonment for an infraction and therefore not entitled to pauper counsel)

57. The “Police Power” is:

a. The inherent power or authority of the U.S. Congress, without express or implied constitutional authority, to pass laws in the public interest to protect the public health, safety and morals.

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b. The inherent power or authority of a state legislature, without express or implied state constitutional authority, to pass laws in the public interest to protect the public health, safety and morals.c. The powers of the police to make arrests (as limited by the Indiana and Federal Constitutions).d. (a) and (b).

(a) is incorrect as the federal government has no police power. It only has such powers as are enumerated in the Constitution or are implied from the express powers under the authority to pass laws which are “necessary and proper”.

58 Most delegates to the Constitutional Convention of 1787:

a. Realized that the Articles of Confederation were inadequate.b. Consisted of 55 men from 13 states (the 13 previous colonies).c. Decided to abolish slavery as of 1808 (See Article I Section 9 of U.S. Constitution).d. Had three women as delegates.e. (a) and (b).

59. The 1788 U.S. Constitution provided:

a. That members of Congress ( the House of Representatives and Senate) shall be elected directly by the people.b. That the President shall be elected directly by the people.c. That members of the federal judiciary shall be appointed by the President for a term of 12 years with the advice and consent of the Senate.d. (a) and (b).e. None of the above.

60. The Article I Sec. 8 power of Congress:

a. The power of Congress to regulate commerce was given a broad interpretation in

Gibbons v. Ogden (1824).

b. To create a national bank was denied because there was no express authority in the U.S.

Constitution to do so. McCulloch v. Maryland (1819).

c. Was limited by the U.S. Supreme Court to those expressly stated in Sec. 8.d. (b) and (c).

61. Article I of the 1788 U.S. Constitution provided:

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a. Express powers of Congress which were later expanded by the U.S. Supreme Court to grant implied powers by the necessary and proper clause.b. That Congress can establish a U.S. Supreme Court and lower federal courts.c. That the importation of slaves shall not be prohibited by Congress for 30 years.d. That the Senate shall be elected by the people for a term of six years.e. All of the above.

62. The U.S. Constitution as interpreted by the U.S. Supreme Court, and/or Indiana law provides:

a. That a person cannot be arrested by a policeman for a felony without an arrest warrant duly approved by a judge.b. That if a person is arrested by a policeman pursuant to an arrest warrant in his home on a charge of selling drugs at a nearby Mall, the first floor of his home can be searched for drugs by the police without a search warrant as a search incident to an arrest.c. That a person can be arrested by a policeman without an arrest warrant for driving without a valid drivers license.d. None of the above.(c) is incorrect as this is an infraction and a person cannot be arrested for an infraction.

63. Common Law:

a. Is judge made law rather than a law enacted by a state legislature.b. Is illustrated by the tort of negligence.c. Was at first very rigid in its rules and therefore gave rise to the creation of Courts of Equity to allow equitable remedies ( Example: Specific Performance) when the rigid rules first established by the English courts of common law did not allow a remedy.d. (a) and (b).e. (a), (b) and (c).

64. A wife in an Indiana absolute divorce proceedings:

a. Can have a jury decide all issues if a timely request is made.b. Can request an alimony order against her husband even though she is not disabled.c. Can obtain a divorce based upon impotence of her husband which began after the marriage.d. Is entitled to one-half of all of the net assets owned by the parties accumulated during marriage.e. None of the above.

There is a rebuttable presumption of equal division and no entitlement.

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65. If an Indiana resident husband dies testate (with a will), is survived by a wife, and owns an interest in real estate in Indiana which it titled as Tenants by the Entireties:

a. The terms of the probated will of the decedent husband determines who will inherit and own the real estate. b. The decedent husband’s heirs as determined by Indiana statute will inherit and own the real estate.c. The decedent husband’s wife becomes the owner of and has the entire title to the real estate at decedent’s death.d. The decedents husband’s wife owns one-half of the real estate at decedent’s death and the other one-half is owned pursuant to the terms of the probated will. 66. A 16 year old buyer and adult seller enter into a contract to buy and sell a used car for $3000.00. The car is to be used by buyer for pleasure only.

a. The buyer can use the car for a year, then while still a minor, disaffirm the contract, return the car to the seller, and recover from the seller any purchase price paid to seller.b. The car purchase contract is unenforceable by either the seller or buyer if the contract is not in a sufficient writing.c. The car purchase contract is unenforceable by either the seller or buyer if the contract is made on a Sunday.d. (a) and (b).

67. Under Indiana tort and statutory law:

a. Assumption of Risk as a defense is not available to an employer defendant to avoid liability in a claim made by an injured employee under the Workers Compensation laws.b. A retailer like Menards is liable to a buyer for injuries to the buyer caused by a product such as a lawn mower which was in a defective and unreasonably dangerous condition even though the retailer did not know that the product was defective and unreasonably dangerous.c. A manufacturer like Toro is liable to a buyer for injuries to the buyer caused by a product such as a lawn mower which was in a defective and unreasonably dangerous condition even though the manufacturer did not know that the product was defective and unreasonably dangerous.d. (a), (b) and (c).

68. Present Indiana criminal law provides that if the prosecuting attorney has requested the death sentence and there is no insanity or mental retardation plea, and if the jury decides that an adult defendant is guilty of murder:a. The jury must sentence the defendant to death if the defendant has previously been convicted of murder.

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b. The jury must sentence the defendant to death if the defendant, while serving a life imprisonment sentence, is found guilty of murdering a prison guard.c. The jury, after considering evidence of aggravating and mitigating circumstances, may recommend a sentence of death, life imprisonment, life imprisonment without parole, or a prison term of between 45 and 65 years to be determined by the judge.d. (b) and (c).e. None of the above.

69. Present Indiana criminal law provides that if the prosecuting attorney has not requested the death sentence or life without parole and there is no insanity plea, and if the jury decides that an adult defendant is guilty of murder:

a. The jury, after hearing evidence of aggravating and mitigating circumstances, may recommend a sentence of 65 years imprisonment.b. The jury, after hearing evidence of aggravating and mitigating circumstances, may recommend a sentence of 45 years imprisonment.c. The jury does not hear evidence of aggravating and mitigating circumstances and must recommend a sentence of between 45 and 65 years imprisonment, the exact amount of years to be determined by the judge.d. None of the above.

70. If a person is 17 years of age, a Petition Alleging Delinquency may properly be filed with the Juvenile Court by the prosecuting attorney which alleges that such person:

a. Violated IC 35-45-9-3 Criminal Gang Activity.b. Violated IC 35-42-5-1 Robbery if such person was not armed and no bodily injury resulted.c. Violated IC 35-43-2-1 Burglary.d. (b) and (c).e. (a), (b) and (c).

71. If a defendant is charged as an adult (after waiver if necessary) and is convicted of murder by a judge or jury:

a. A defendant who was 14 years old at the time of the murder may be sentenced to life imprisonment without parole if the prosecuting attorney has requested such a sentence.b. A defendant who was 17 years old at the time of the murder may be sentenced to death if the prosecuting attorney has requested such a sentence. c. A defendant who was 18 years old at the time of the murder may be sentenced to life imprisonment with possibility of parole (because of his young age) if the prosecuting attorney has requested such a sentence.d. None of the above.

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e. (a) and (c).

72. If a juvenile court initially has jurisdiction over a child, and the prosecuting attorney files a Waiver Petition, the charges and the child shall (subject to the juvenile judge’s statutory required findings) be waived to an adult criminal court in the following circumstances:

a. The child was 12 years old at the time of the offense and is charged with an act that would be Murder if committed by an adult.b. The child was 16 years old at the time of the offense and is charged with an act that would be Burglary of a Dwelling if committed by an adult.c. The child was 17 years old at the time of the offense, is 18 years old when the Petition Alleging Delinquency is filed, is charged with an act that would be Theft of $100,000.00 if committed by an adult, and the child has not been previously convicted of a felony or misdemeanor.d. (a) and (b).e. (a), (b) and (c).

73. Under Indiana Juvenile Procedure:

a. A child is entitled to a jury at the Factfinding Hearing to decide if the child has committed the Act of Delinquency.b. A child taken into custody pursuant to a Petition Alleging Delinquency is entitled to be released on reasonable bail if a Detention Hearing is not held within 24 hours (excluding Saturdays, Sundays and Holidays) after being taken into custody.c. Only the prosecuting attorney can file a request for a waiver to adult criminal court.d. At a Factfinding Hearing, if the delinquency is denied, the state (through the prosecuting attorney) has the burden of proving by clear and convincing evidence that the child committed the delinquent act. e. None of the above.

74. Administrative agencies are:

a. Created by an act of Congress and/or state legislatures.b. Created by an enabling act (law) which act to be constitutional must provide the purpose, powers and duties of the agency, and provide reasonable standards in implementing the act.c. Subject to judicial review as to their decisions.d. (a), (b) and (c).

75. The facts in Korematsu v. U.S. (1944) state that the President issued a federal Executive Order in 1942 which ordered that Americans of Japanese descent (including

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Korematsu) be taken immediately from their homes in California and removed to concentration camps away from the west coast. Which of the following are correct legal principles in favor of Korematsu which should have been approved by the Supreme Court?

a. That since he was not allowed to have a hearing before a judge before removal, he was deprived by the federal government of procedural due process under the 5th Amendment.b. That since he was not allowed to have a hearing before a judge before removal, he was deprived by the federal government of procedural due process under the 14h Amendment.c. That the order was a violation of his of equal protection rights under the 14th Amendment.d. (a) and (b).

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