Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Indiana Trial Rules

Homicide By Strangulation… During Sex


By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

For one man, a seemingly great night turned into a long journey through the judicial system. In Thomas v. Clements, the Seventh Circuit Court of Appeals reviewed a man’s conviction where he killed his wife after applying too much pressure on her during sex.

Joyce Oliver-Thomas and Oscar Thomas were married. After nine years of marriage, the two divorced; however, Oliver allowed Thomas to continue living in her apartment where the two continued a sexual relationship. On the night of the incident in question, the police received a call from Thomas saying that Oliver was unconscious. When the police arrived Oliver was unresponsive, eyes open, and without any pulse. She was announced dead at the hospital.

Thomas gave two inconstant statements. He first stated that he left the apartment and came back and found Oliver grabbing her neck in a choking manner. He later stated that he left the apartment and began watching a pornographic movie. When he returned he and Oliver had sex, during which they fell off the bed and continued to have sex. He mentioned that at one point while engaging in sexual activity he had his arm around her neck. Thomas was found guilty by the trial court for unintentionally causing Oliver’s death by putting pressure on her neck for too long during sex. The trial court ruled under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Thomas appealed, alleging that the wrong standard was applied.

To prevail on his claim, Thomas had to first show that his counsel’s performance was deficient, meaning it fell below the objective standard of reasonableness. Thomas argued the defense counsel was deficient in failing to consider and consult with a pathologist who would have reviewed the autopsy report and testified. Dr. Mainland’s (the plaintiff’s expert) pretrial testimony showed that Thomas acted intentionally. This corroborated with the testimony of the plaintiff in which he admitted having his arm around her neck before she died, as well as the counsel choosing not to argue the issue of causation. The combination of these factors gave what seemed to be a reasonable inference of intent. There were no signs of fight or struggle between Thomas and Oliver, however. Therefore,  counsel should have known there was reason to question a finding of intentional homicide. A responsible counsel would have at least contacted an expert to check if the medical findings could be reconciled.

Next, Thomas had to show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. The expert mention that strangulation would likely result after four minutes of pressure, meaning there were roughly fifty-five minutes in which Oliver was not being choked to death. All parties admit there was no evidence of external marks on either Thomas or Oliver. Dr. Teas’s testimony in the post-conviction hearing stated that because there were no external bruising on the neck or bone, the necessary injuries of strangulation were missing.

Dr. Teas’s testimony provided that even if Thomas did cause Oliver’s death, it was not intentional. The facts were consistent with an accidental death and sufficient to raise a reasonable doubt; therefore, there was evidence of prejudice for ineffective assistance of counsel purposes. The Seven Circuit  ruled that after reviewing the case de novo the counsel’s performance in relation to a pathologist expert was deficient and that Oliver was prejudiced by counsel’s deficient performance.

A Miscarriage of Justice

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Nobody is perfect. Mistakes happen to the very best of us, including judges. This is precisely why our justice system has a procedure of checks and balances set in place to prevent injustice to the best of its ability. Recently, the Seventh Circuit Court of Appeals dealt with a mistake made by both the defense counsel and trial judge in Reyes v. Dart.

A Cook County Jail pre-trial detainee was attacked and stabbed as a guard stood ten to fifteen feet away and ignored his cries for help. The detainee eventually lost consciousness which was not regained until three days later in the hospital. The attack caused severe nerve damage and a fractured eye socket which may eventually lead to blindness.

The victim-detainee filed suit against the Cook County Sheriff, Thomas Dart, and two of the jail officials claiming they failed to protect him from the attack. He contends that the defendants have culpably failed to create or enforce policies necessary to protect such attacks from occurring.  After filing an answer to the complaint, the next six months entailed the defense lawyer sending a total of five letters to the plaintiff. Each letter demanded the plaintiff sign a release giving the defense counsel access to protected health information maintained by a variety of hospitals. The release was not limited to medical records surrounding the attack that occurred, but rather all medical records would have been accessible from birth forward. Further, the release did not impose limitations on to whom the information could be disclosed.

The letters advised that it was entirely the plaintiff’s decision to sign the release or not, however, failure to sign would be grounds for dismissal of the case because the claim was for physical injuries. Naturally, the plaintiff did not sign the release for medical records. After the fifth letter of release was not replied to, defense counsel moved for dismissal under Federal Rules of Civil Procedure 41(b). The district court dismissed the suit with prejudice.

The Seventh Circuit ruled that the district judge erred in dismissing under 41(b) because there was no failure to comply with any rule or any court order. Nor was the plaintiff’s refusal to sign the release a failure to prosecute the suit. The defense counsel’s dispute with the plaintiff over the medical records was merely a discovery dispute and should have been dealt with as such by filing a motion to compel under Fed. R. Civ. P. 37. As the claim involved physical injuries, an order requiring the plaintiff to submit to a medical examination could have been filed under Fed. R. Civ. P. 35.

Another reason the case should not have been dismissed was because the release specifically stated that the signer may revoke authorization to release of his medical records at any time, which would have empower the plaintiff to refuse to sign in the first place without being punished. For the aforementioned reasons, the Court vacated and remanded the case. Judge Posner instructed the lower court to rule on the plaintiff’s prior motion for recruitment of counsel and inform the defendants’ counsel that the civil rule applicable to his demand for medical records is rule 37, not rule 41(b).

The defense counsel may have been quick to get the case dismissed, however, the counsel’s lack of knowledge concerning the Federal Rules of Civil Procedure only led to the case coming back to haunt him after Judge Posner issued the Seventh Circuit Court of Appeals opinion.

Coming Back to Bite You: Immunity for Expert Witnesses


By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

Can teeth marks on a body come back and bite you for falsifying your opinion during trial? The Seventh Circuit Court of Appeal issued an opinion explaining the immunity for expert witnesses. In Stinson v. Gauger, the court reviewed a case where an expert’s opinion resulted in a man being wrongly accused and sentenced for murder. Judge Sykes wrote the Opinion for a three-judge panel.

Robert Lee Stinson spent 23 years in prison for a murder that he did not commit. He was exonerated by DNA evidence. Stinson alleges that the two odontologists—key witnesses for the prosecution—fabricated their opinion. Stinson burger alleges that the detective in the case—Mr. Gauger—put them up to it and collectively the three suppressed evidence of the fabrication in violation of his due process of law.

The bite marks found on the victim showed that her killer had one missing tooth in the upper right lateral incisor and a twisted tooth in the same area. Stinson’s dental records were similar to those of the killer’s, but did not actually match. Stinson was missing his front right central incisor and had a damaged tooth, which resembled the killer’s dental records. Nonetheless, Dr. Raymond and Dr. Johnson testified that the bite marks on the victim implicated Stinson.

The Court examined three issues: 1) Appellate Jurisdiction;  2) Absolute Immunity; and 3) Qualified Immunity.  Did the appeal raise a question of law about historical facts? An order denying summary judgment usually lacks the finality required for appellate jurisdiction, but orders denying claims of immunity from suits are an exception. The odontologist and Gauger accepted Stinson’s version of historical facts, but they argued that the facts do not amount to violation of a constitutional right. As a result of this case being a legal question of a qualified-immunity claim, the district court order qualified for immediate appeal.

A witness has absolute immunity from suits on claims from their testimony at trial and from the preparation to testify at trial. Misconduct committed while investigating the case is not qualified for absolute immunity. Even if the doctors falsely testified at trial, they cannot be sued solely on that testimony in a civil suit. Stinson accused the odontologist of fabricating their opinions during the investigation before probable cause existed. Based on the principles outlined in Buckley v. Fitzsimmons, absolute immunity does not apply to this alleged misconduct.

To be protected under qualified immunity, Stinson had to possess evidence that showed the odontologist’s conduct violated a constitutional right and the right was established at the time of their actions. Stinson alleged that his Fourteenth Amendment right was violated. Stinson believed the doctors and the detective conspired to frame him with fabricated evidence. In order to suffice this requirement, an expert has to know their information is wrong and still use the false information. The defendant’s expert at the initial trial failed to show that the information given was fabricated. Stinson’s own expert missed the errors that were later identified and, therefore, there was no suppression of evidence.

The Seven Circuit ruled that the defendants are not protected under absolute immunity because Stinson accused them of fabricating their opinion during the investigative phase, but they are entitled qualified immunity because they did not violate Stinson’s due process rights by fabricating their opinions since there was not any showing that they intentionally fabricated their opinion, and the detective did not violate Stinson’s due process right and was also entitled to qualified immunity.

This case shows that witnesses should be held responsible for their testimonies and that all individuals—despite being accused of a crime—should be awarded the same protection as everyone else. Additionally, this case illustrates the demand for immunity to be granted to expert witnesses so they will feel free to tell the truth to the best of their overall knowledge without the threat of being sued for a mere mistake. However, one question remains with this type of interpretation: Would this allow experts to say what they want geared by their personal opinions?

7th Circuit Attempts to Define Due Process

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

The Seventh Circuit Court of Appeal issued a ruling that helps outline the definition of a “search and seizure” in United States v. Smith. The Court reviewed a case where a Milwaukee citizen alleged that two officers violated his Fourth Amendment rights during a routine stop. Judge Williams wrote the Opinion for a two-judge panel.

Officers Michael Michalski and Michael Flannery were on bicycle duty on the night in question. Around 10:00 at night, the officers heard three to four gunshots. Neither of the officers called dispatch to report the shots fired; Instead, the officers rode their bikes to a near street where they talked to witnesses. One witness reported that the gunshots were coming from the west of his location, to which the officers made no inquires or asked if the witness himself possessed a weapon.

The officers, responding to the given information, rode one block over where Dontray Smith–a resident of the neighborhood–was spotted. Smith was not running nor manifested suspicious behavior. Smith was leaving from the east side headed toward the west, making it unlikely that he was the person discharging a weapon. Nonetheless, the officers proceeded into the alley ahead of Smith.

Once Smith and the two officers were in the alley, the officers turned around and stopped five feet in front of Smith. Officer Michalski got off his bike and approached Smith with his hand on his gun. Neither officer identified himself as an officer, made an introduction, or asked Smith for identification. The officer began by asking Smith if he had a weapon, to which Smith responded “Yes.” Smith did not have a permit for his firearm and was arrested for being a felon in possession of a firearm. In Court, Smith filed a motion to suppress, alleging his statement to the officers (as well as the gun uncovered as a result of the questioning) were obtained through an unreasonable search and seizure in violation of his Fourth Amendment rights.

The Seven Circuit ruled that Smith’s Fourth Amendment rights were, indeed, violated. The Court’s holding relied on five factors: (1) the location of encounter; (2) the threatening presence of multiple officers; (3) the aggressive nature of the questioning; (4) the obstruction of Smith’s freedom of movement which was physically obstructed by the positioning of the officers in the alley; and (5) their presence on bicycles rather than a marked squad car. Therefore, the encounter between the two officers and Smith constituted an unlawful search as a result of the police following proper procedure during their stop.

This case illustrate’s an officer’s duty to protect citizens, particularly through following the proper protocols and procedures that officers are to abide by. This case illustrates that the protocols are most of the time not a black and white issue. Of course, police are human beings capable of making mistakes; however this case emphasizes the importance of an officer using his best judgment in situations like Smith’s. Issues involving black males have become more and more prevalent in the news—especially over the past year. With this being said, there is a greater need for officers to guarantee that proper steps were followed. This seems to be the very concept that the Seventh Circuit is trying to address by asserting Smith’s rights in their decision.

WE CAN DO IT: #LeadOnLeave

clip_image006By: Faith E. Alvarez
Valparaiso University School of Law
J.D. Candidate, 2015

If House of Cards taught me anything, it’s that “If you don’t like how the table is set, turn over the table.”

I’m sure I wasn’t the only one to read about the female attorney that brought her weeks old baby to court after an immigration judge wouldn’t grant her unopposed motion for continuance. His denial stated that her maternity leave was “not good cause” to move the hearing. Perhaps he felt that he had the plenary power to humiliate her in open court (Immigration law joke), which he proceeded to do as he questioned her parenting abilities and sent her home. Ultimately, the hearing was continued and she filed a formal complaint against the judge.

I’ve read about it from the Associated Press, Above The Law, and Jezebel. Like many of the commentators, I can’t stop my skin from crawling. So, I’m dedicating this week’s blog to turning over the table – to bringing a baby to court in order to show that maternity leave is good cause to put work on hold.

While I really appreciated the civil disobedience in this situation, I wanted a broader perspective, so I sought the advice of a trusted law professor. I asked what else this attorney could have done to obtain a continuance in order to avoid the need to bring her infant to court.

The response? Not what I had hoped. I had hoped that there was another way, maybe something she missed that I could discover and tell others about. But instead I found out that realistically, because continuances are discretionary and because there is no practical possibility of review, there was little, if anything, this lawyer could have done that would have made a difference.

Then, my professor raised some interesting questions for me: Could there have been a justified reason for what the judge did, other than his insensitivity to her situation? If he would have granted a continuance to a male sole practitioner for elective surgery (even though pregnancy is not “elective” surgery), then the judge’s ruling certainly looks motivated by gender stereotypes. However, what if this particular judge simply did not like to grant continuances? And then again, who is handling this lawyer’s cases while she is taking time away from her practice? Surely she made plans for that and this matter was an aberration.

Nevertheless, the judge’s comments to the attorney when she appeared for the hearing with her child are troubling. One of the constant pressures women attorneys live with is wondering whether their treatment in court is gender-neutral or gender-biased. Any presence of judicial stereotyping undermines their well-being, at the same time making the system appear less legitimate in general. This harms everyone in the end.

The conclusion? Filing a formal complaint against the judge was likely the best course of action.

And on a wider scale, the reality is this: Missing work just isn’t a well-respected practice in this country, no matter the reason. This is part of what prompted FMLA, the Family-Medical Leave Act, which includes protections for female workers who take maternity leave.

FMLA protects a woman from being fired as a result of taking time off of work for pregnancy, childbirth, and recovery, but maternity leave is overwhelmingly unpaid. In fact the United States is the only developed country without laws providing paid maternity leave. As a result, many women cannot afford to take advantage of a full maternity leave and end up returning to work very soon after the baby is born.

Going 6 weeks without any income is difficult for most low to moderate income mothers, leaving maternity leave primarily for women who are economically stable. This is part of what has recently prompted the U.S. Department of Labor’s #LeadOnLeave campaign; exploring and promoting laws that provide paid family medical leave – particularly for maternity leave. The campaign is relatively new and the USDOL has created a blog, which is quite informative.

#LeadonLeave is important because under FMLA, the primary law protecting working women who take maternity leave, deciding whether maternity leave is paid or not is left up to the states – and only California, Rhode Island and New Jersey have passed paid leave laws so far.

Turning over the table can be awkward and unfortunately takes a lot of time and effort. But it can and it must be done. Ginger Rogers danced as well as Fred Astaire, backwards and in high heels.

Note: The lawyer in this case was in Georgia. Here are links to Indiana Rules of Trial Procedure and Indiana’s Information for Expectant Parents.

Pro Se Patience Is A Virtue, But It Only Goes So Far

untitledBy: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

Gersh Zavodnik is one lucky pro se litigant. He may have lost his Indiana Supreme Court case, but he could have been sanctioned into oblivion. Despite his “abusive and vexatious litigation practices,” and being labeled “a prolific, abusive litigant,” Mr. Zavodnik and his dozens of cases in Indiana survive another day, but his days might be numbered as a frequent user of the Indiana court system.

Zavodnik v. Harper represents a new era in Indiana justice for pro se litigants. Mr. Zavodnik is well known among the judiciary in Marion and surrounding counties. Since 2008[,] he has filed 123 civil lawsuits and [he] has 34 cases [pending?] before the Indiana Court of Appeals. Most of these cases are now described by the Indiana Supreme Court as being “defective, repetitive, and lacking merit.” For years now, Mr. Zavodnik has attacked the courts as well as his opponents. He has accused judges of forming a ‘legal mafia’ bent on dismissing his claims, tampering with evidence, colluding against him with pro se litigants, and treating him differently from attorneys. Mr. Zavodnik accused the Indiana Supreme Court of enabling this legal c conspiracy by being inadequate in its job.

Mr. Zavodnik may be correct on one point: judges would treat attorneys differently. Judges probably would have sanctioned an attorney for filing over 100 frivolous, baseless or defective lawsuits and for failing to follow proper procedure. The Indiana Supreme Court noted that had an attorney filed these cases, discipline could have been triggered under multiple rules of professional conduct.

In this way at least Mr. Zavodnik seems lucky since he is not bound by professional conduct rules. However, Mr. Zavodnik argued repeatedly that as a pro se litigant he was disadvantaged in the courtroom. This seems true in only one aspect: if Mr. Zavodnik had counsel, he probably would have been advised to not make personal attacks on officers of the court.

In Harper, the Indiana Supreme Court, after reviewing Mr. Zavadonik’s pleadings and arguments, held that his litigation amounted to attempts to grind the judicial machine to a halt. While declining to sanction him, the court set out a number of sanctions and preventative practices for any judge dealing with an abusive pro se litigant. These methods ranged from minor (limiting the number of pages and requiring concise clear statements in pleadings) to the more severe (requiring affidavits and limiting the petitioner’s access to the courts except in cases of immediate danger of bodily harm). And, of course, the courts may impose fines.

Finally, the Indiana Supreme Court has set down instructions for future courts to crack down on abusers of the system, be they pro se litigants or bar-admitted attorneys.

Mr. Zavodnik would do well to take the Indiana Supreme Court’s lesson to heart, as he has numerous cases still pending, but judging from his recent interview with the Indy Star, this does not seem likely. Perhaps now would be a good time for Mr. Zavodnik to seek counsel.

Indiana Supreme Court Clarifies Trial Rules in Conflict

R. 54(B)   v.    R. 56(C)

Thomas McNamee
Valparaiso University Law School
J.D. Candidate, 2015

A mere two weeks ago the Indiana Supreme Court held that evidence obtained after entry of an order granting a motion for partial summary judgment may not form the basis for vacating that order on the grounds that a non-final order is subject to revision at any time before entry of final judgment.

In December of 2008, 10th and The Bypass, LLC filed a complaint against James T. Mitchell, individually, and as owner of a corporation in his name (J.T. Mitchell, Inc.). The complaint alleged that Mitchell and his corporation were responsible for environmental contamination while operating a dry cleaning business on a site owned by 10th and The Bypass, LLC.  The trial court granted a motion for partial summary judgment in favor of James T. Mitchell, on the grounds that he was not personally liable for the claims alleged against him. A year later the LLC obtained a recorded statement from a former employee at Mitchell’s dry cleaning operation, stating that Mitchell had engaged in and known about chemical spills at the business. In light of the new evidence, the LLC sought a vacation of the order for partial summary judgment pursuant to Indiana Trial Rule 54(B). Mitchell opposed and responded, citing Indiana Trial Rule 56(C), which requires newly discovered evidence to be properly designated and timely submitted, along with 30 days to respond following proper service. The trial order granted LLC’s motion to vacate stating that the order granting partial summary judgment was not final and therefore subject to revision at any time before entry of final judgment.

With two Indiana Rules of Trial Procedure in conflict with one another, the Indiana Supreme Court addressed the issue. The trial court was correct in applying Rule 54(B), as the Supreme Court stated, “we have long and consistently held a trial court has inherent power to reconsider, vacate, or modify any previous order so long as the case has not proceeded to final judgment,” citing Haskell v. Peterson Pontiac GMC Trucks, 609 N.E.2d 1160, 1163 (Ind. Ct. App. 1993). But, the vacating of the original order relied on new evidence that was submitted to the court following the entry of partial summary judgment. Citing a strong line of cases that apply a bright line rule of the 30 day period required by Rule 56(C), the court realized there must be some harmonizing of the two rules in conflict of one another.

The remedy then, is a holding that clarifies how trial courts are to address the issue when revisiting non-final orders and the evidence allowed for consideration. The court held: “Although a trial court may indeed make material modifications to a non-final summary judgment order, it must do so based on the timely submitted materials already before the court when the order was initially entered.” The evidence to be relied upon must be properly before the court at the time the previous order was entered.

This case imparts a major clarification in regards to two rules that when read together, can seem impossible to co-exist. With the ruling, the Indiana Supreme Court has introduced the standard to be applied when modifications of non-final orders are sought. The evidence to be relied upon must have been properly before the court at the time the initial order was entered.

Supreme Court Decision:

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