FEATURING: STATE OF THE JUDICIARY INDIANA COURTS: FULFILLING OUR CONSTITUTIONAL RESPONSIBILITIES
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JAN/FEB 2022
FEATURING:
STATE OF THE JUDICIARY
INDIANA COURTS: FULFILLING
OUR CONSTITUTIONAL
RESPONSIBILITIES
PLUS:
Time of Reflection – An Open Conversation about the Open Conversations Program
Together We Are Stronger: Addressing the Shortage of Rural Attorneys
VOL. 65 NO. 6
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VOL. 65 NO. 6
JAN/FEB 2022
COVER STORY
14 STATE OF THE JUDICIARY
Indiana Courts: Fulfilling Our
Constitutional Responsibilities
By Hon. Loretta H. Rush
CONTENTS
STAFF
PUBLISHER STATEMENT: Assistant CLE Director: Legislative Counsel:
Res Gestae (USPS–462
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3
I NI N
BBAA
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INDIANA STATE BAR ASSOCIATION The Indiana State Bar Association
One Indiana Square, Suite 530 Indianapolis, IN 46204 empowers members to thrive
professionally and personally through
800-266-2581 • www.inbar.org advocacy, education, and connections.
COLUMN
12 ISBA UPDATE 30 THE INTERSECTION
Two ISBA Programs Win Awards The Intersection of Assisted Reproduction with
By Res Gestae Editor Estate Planning and Family Law
By Amanda D. Sapp
21 TOGETHER WE ARE STRONGER
Addressing the Shortage of Rural Attorneys
By Cory Sprunger
EDITOR / ABIGAIL HOPF ahopf@inbar.org
COPYEDITOR / REBECCA TRIMPE rebeccatheditor@gmail.com
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Opinions expressed by bylined articles are those BOARD OF GOVERNORS 11th District:
of the authors and not necessarily those of the 1st District: Colin Flora, Indianapolis
ISBA or its members. ©2022 by the Indiana State
Bar Association. All rights reserved. Candace Williams, Gary 11th District:
Reproduction by any method in whole or in part 2nd District: Ann Sutton, Indianapolis
without permission is prohibited. Zachary Lightner, Auburn 11th District:
3rd District: Jon Laramore, Indianapolis
OFFICERS Hon. Cristal Brisco, South Bend At Large District:
President: 4th District: Renee Ortega, Hammond
Clayton C. Miller, Indianapolis Lindsay Lepley, Fort Wayne At Large District:
President Elect: 5th District: Freedom Smith, Indianapolis
Amy Noe Dudas, Richmond Cliff Robinson, Rensselaer Past President:
Vice President: 6th District: Michael Tolbert, Gary
Hon. Tom Felts, Fort Wayne Scott Smith, Noblesville House of Delegates Chair:
Secretary: 7th District: Holly Harvey, Monroe County
Mary Louise Dague Buck Emily Storm-Smith, Indianapolis House of Delegates Chair Elect:
Treasurer: 8th District: Angka Hinshaw, Indianapolis
Yvette LaPlante Katie Boren, Evansville Young Lawyers Section Chair:
Counsel to the President: 9th District: Alyssa Cochran, New Albany
Terry Tolliver Greg Fifer, Jeffersonville Young Lawyers Section Observer:
10th District: Brandon Tate, Indianapolis
Melissa Cunnyngham, Frankfort
4
R E S G E STA E • I S B A
DEPARTMENTS
7 PRESIDENT'S PERSPECTIVE 34 REGIONAL INSIGHT
18 OPEN CONVERSATIONS 36 CIVIL LAW UPDATES
25 CRIMINAL JUSTICE NOTES 46 CLASSIFIEDS
32 ETHICS
CONTENTS
Clayton C. Miller Cory Sprunger Adrienne Meiring
Attorney Managing Partner Attorney
Clayton Miller Law, P.C Sprunger and Sprunger Office of Judicial Administration
clay@claytonmillerlaw.com cory@spurngerandsprunger.com adrienne.meiring@courts.in.gov
Hon. Loretta H. Rush Ruth Johnson Judge Marianne Vorhees
Chief Justice of Indiana Staff Attorney Judge
supreme.court@courts.in.gov Indiana Public Defender Council Delaware Circuit Court 1
Contributors
ruthjohnson@pdc.in.gov mvorhees@co.delaware.in.us
Justice Steven David Jack Kenney Curtis T. Jones
Justice Director of Research & Publications Partner
Indiana Supreme Court Indiana Public Defender Council Bose McKinney & Evans LLP
steven.david@courts.in.gov jkenney@pdc.in.gov cjones@boselaw.com
Angka Hinshaw Amanda D. Sapp Bradley M. Dick
Attorney Attorney and Founder Partner
Indiana Family & Social Services Sapp Law Office, LLC Bose McKinney & Evans LLP
Administration asapp@sapplawoffice.com bdick@boselaw.com
angkahinshawesq@gmail.com
5
I INNBBAARR. O
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R E S G E STA E • I S B A
President's Perspective
JACKIE ROBINSON,
DIVERSITY, AND
RACE HATE
By Clayton C. Miller
PRESIDENT'S PERSPECTIVE
I
recently re-watched the 2013 feature film baseball fans. I also recommend the Ken
42, about Jackie Robinson’s rookie season Burns documentary of Robinson’s life, which
with the Brooklyn Dodgers in 1947. The includes interviews with his now (as of this
late actor Chadwick Boseman portrayed the writing) 99-year-old widow Rachel. This
baseball legend, who was the first African audience of lawyers also may be interested
American allowed to play for a major- to know during his pre-baseball stint as
league team in the modern era. Robinson an Army officer he was court-martialed in
was Rookie-of-the-Year his first 1944 for, among other things,
season in the big leagues, and insubordination. His arrest
just two seasons later was the arose from his interaction
starting second baseman on the with military police at Ft.
All-Star team and the National Hood, Texas, after he swore
League MVP. He retired from at a civilian bus driver on the
baseball in 1956, and it was Army base and refused to
several years after his premature comply when the driver told
death in 1972 at age 53 that I Lt. Robinson, in contravention
became aware of his barrier- of Army regulations, to move
breaking Hall-of-Fame career. to the back of the bus because
His powerful story still resonates of the color of his skin. This
today. Exceptionally talented was eight years before Rosa
and hard-working (he had been a four-sport Parks’ famous defiance of a similar directive
varsity athlete at UCLA and was the 1940 on a public bus in Montgomery, Alabama.
NCAA champion in the long jump), he was Fortunately for Robinson and future baseball
also a civil rights pioneer. fans, he was acquitted on all counts. An
excellent write-up of the incident can be
The movie offers an unflinching view of found at www.americanheritage.com/court-
the obstacles Robinson faced as a Black martial-jackie-robinson, which includes a
athlete from teammates, umpires, and racist brief treatment of the challenges finding
lawyers for the many Black soldiers who
7
INBAR.ORG • JAN/FEB 2022
pushed back against racist attitudes base than a generation ago. Of hand wanting to treat everyone
in the Jim Crow South and elsewhere course, while we are each defined in equally under the law based on
during that time. part by the totality of our individual individual merit. Statistical data, to
circumstances, touting the benefits say nothing of evidence from cell
I focus on Jackie Robinson’s story for of diversity is not to suggest a lawyer phone cameras, suggest in more
two reasons. First, because he serves cannot relate to and effectively serve than a few jurisdictions facially
as a stark example of the benefits the needs of a client of a different neutral laws continue to be applied
of diversity. By lifting its self- race, gender, or other immutable unequally to our Black brothers and
imposed limitations on who could condition. A modicum of empathy sisters. Does blindness to race equate
play the game, baseball elevated can go a long way to bridging to blindness to injustice? Can we act
the quality of the athletic product it cultural and other gaps, but it rarely affirmatively to provide access and
presents to its fans, not to mention arises in a vacuum. As a profession, redress while remaining consistent
provided more equal opportunities the law is not especially diverse, with societal notions of fairness?
for participation. Although sport is adding to the challenge of developing Courts have in recent decades
its own context, with a significant the exposure to other perspectives struggled to strike an appropriate
physical component and often with on which empathy is grounded. balance, especially in the contexts of
education and employment.
I recently heard an older white CEO
assure his audience that nowadays
when considering two equally
qualified candidates to fill one
"Diversity of background and experience, and diversity open position at his company, the
tie goes to the candidate who is a
of thought, can enhance the quality and efficacy of work minority. But he quickly went on to
product in other contexts, including the law." acknowledge there’s no such thing
as a tie when comparing applicants’
qualifications. One way the well-
intended might foster progress
to racial equality without having
to put a thumb on the scale could
involve valuing and embracing
clearer measurements of merit Ultimately, wanting a more diverse different backgrounds and world
allowing more objective bases of bar and bench is not about window views. And when it comes to making
comparison between athletes, such dressing or what some cynics decisions about admission, hiring,
as speed, scoring percentages, etc., dismiss as virtue signaling. It is and promoting, the more subjective
the benefits of diversity are not about wanting to improve outcomes, the criteria for achievement the
limited to physical pursuits. Diversity advance justice, promote faith in greater the importance of being
of background and experience, and legal institutions, and increase aware of and at times even resisting
diversity of thought, can enhance the opportunity for all Hoosiers. the natural impulse to favor one’s
quality and efficacy of work product inherent biases.
in other contexts, including the law. Addressing race in the context of law
can be tricky. I’m far from an expert A second reason I find Jackie
Consumers of legal services come on the subject, but it seems to me Robinson’s story compelling today is
in all stripes, and certainly our civil there’s an inherent tension between because it serves as a touchstone to
as well as criminal courts daily pushing back against individual and compare not only how the law has
engage with the broad spectrum systemic racism on the one hand, evolved to ameliorate some of the
of humanity, not just in the largest with their combined legacy of denied more odious vestiges of segregation
cities of our state. Indeed, even opportunities as well as stated and and unfair discrimination from
small-town practitioners are unstated antipathy to others based Robinson’s time, but also how past
encountering a more diverse client on skin pigment, and on the other attitudes about other races persist
8
R E S G E STA E • I S B A
and continue to erect barriers to
equality. As I write these words in
the final month of 2021, a judge in
Louisiana is on voluntary unpaid
leave after her exposure in a
recent candid video expressing
hateful views about Blacks in her
community. To be sure, there has
been significant progress since
Robinson’s 1947 MLB debut in both
civil rights and societal attitudes
toward Blacks and other minorities.
But anyone who thinks Robinson’s
story has no currency in today’s
world hasn’t been paying attention
or is willfully blinkered. Far too
many of our fellow citizens were cut
from the same cloth as Alabaman
Ben Chapman, the vile manager
of the Philadelphia Phillies whose
loud "N*****, N*****, N*****" and
other overtly racist taunts each time
Robinson came up to bat vividly
distilled the non-physical abuse he
and many others of his race faced,
and not just in the South. The team
holding out the longest against
integrating was the Boston Red Sox,
Probate
waiting 12 years after Robinson’s
major-league debut before adding
a Black player to their roster. And
make no mistake, then as now
the abuse was not limited to L I T I G AT I O N
the non-physical.
Closer to home, our state has its
own troubled history on race. A
generation before Robinson broke W I LL C O N T E STS
baseball’s color barrier, Indiana T R U ST D IS P U T E S & C L A IM S
found itself gripped by intolerance Jarrell B. Hammond Matthew C. Boldt
C O N TE ST E D G UA R D IA N S H IP S jhammond@lewiswagner.com mboldt@lewiswagner.com
in the form of the Ku Klux Klan.
Not only were Black Hoosiers the
target of discrimination, hate, and
violence, but Jews and Catholics
also were viewed in many quarters 1411 Roosevelt Avenue | Suite 102 | Indianapolis, Indiana 46201
as second-class citizens, or worse. 317.237.0500 | F:317.630.2790 | lewiswagner.com
Back then your state bar association
was a lonely voice speaking out
against the Klan agenda, which had
its adherents at the highest levels of Available as Counsel or Co-counsel in All Indiana Counties
state government. Notwithstanding
9
INBAR.ORG • JAN/FEB 2022
the fact that, then as now, lawyers
work in communities of all sizes in
which challenging the powers that
be could be detrimental to their
law practice, delegates to the ISBA’s
annual meeting in 1923 unanimously
adopted a resolution condemning
the Klan, setting an admirable and
enduring example of speaking out
to protect minority civil rights. I also
note, however, that the exclusion of
Black attorneys from professional
associations in that same era led to
the founding of the Marion County
Lawyers' Club in 1925.
Today the Klan as an organization
is widely dismissed. Yet in some
quarters the racist views it espouses
still predominate. As IU emeritus
history professor James H. Madison
noted in his recently published,
well-researched history, The Ku
Klux Klan in the Heartland, one of
the organizers of the 2017 white
nationalist rally in Charlottesville,
Virginia, hails from southern Indiana
and is reaching new audiences with
his “timeworn hatred mixed with
twenty-first-century ingredients,
including rapid internet connections
to like-minded people.” Madison at
p. 195.
For the record, your state bar
association values diversity
and seeks opportunities for its
promotion. Our full Diversity
Position Statement can be found
on the ISBA website and reads,
in part, “this commitment is
not only essential to the pursuit
of our mission ‘to improve the
administration of justice and
promote public understanding
of the legal system,’ but it also
strengthens our ability to address
all our members’ needs.” One of the
four pillars of our newly adopted
strategic plan calls for a specific
focus on increasing the diversity of
10
R E S G E STA E • I S B Aour membership as well as in the bar of progress. In the same state and ago retired number 42. But as a
generally. We can also all take pride the same month in which the judge sign of respect for his singular
in the national recognition the ISBA was caught on video using racist achievement, not just for his team
has received for our 2021 monthly language, the governor announced but for his sport, in all of baseball
series of “Open Conversations: his posthumous pardon of Homer only one number has been retired by
Racism & Racial Injustice” featuring Plessy 129 years after his 1892 every team: 42. Each year, April 15
interviews by Indiana Supreme conviction for violating Louisiana’s is Jackie Robinson Day in baseball,
Court Justice Steven David and law segregating rail passengers by when every player, regardless of
Board of Governors member Angka race. Our Supreme Court long ago race, wears his number 42. This April
Hinshaw. I especially commend repudiated its majority opinion 15 will mark the 75th anniversary of
to your attention the inaugural in Plessy v. Ferguson which had Jackie Robinson breaking baseball’s
program during which the co-hosts sanctioned the separate but equal color barrier. You’ll find me
interviewed then-ISBA President standard, proving the prescience of somewhere in the stands celebrating
Michael Tolbert along with Indiana the lone, courageous dissenter in that with my fellow fans.
Chief Justice Loretta Rush, whose infamous case, Justice John Marshall
candid dialogue on this sensitive Harlan, who wrote, “The destinies In conclusion, I certainly don’t have
the answers to what is the most
appropriate response today to the
pervasive and systemic racism that
was such an inescapable aspect of
the Black experience in the past, and
"But it is my conviction that every one of us can and which we have yet to fully eradicate.
should play a role in ensuring all vestiges of 'race hate' and But it is my conviction every one
of us can and should play a role in
second-class treatment based on race are eliminated both
ensuring all vestiges of “race hate”
in law and in practice." and second-class treatment based on
race are eliminated both in law and
in practice. Viewing current debates
and struggles through such a lens
won’t necessarily lead to agreement
subject was a revelation. Plus, you of the two races in this country are as to optimal tactics or outcomes,
can get an hour of free ethics CLE indissolubly linked together, and but with a good faith commitment to
credit for watching. Recordings of the interests of both require that such common purpose we can surely
the Open Conversations programs, the common government of all shall advance the ball and fully embrace
along with our full Diversity not permit the seeds of race hate the profound notions that not only
Position Statement, can be found at to be planted under the sanction of are all persons equal before the law,
inbar.org/page/systematic-inequities. the law.” On a related note, I highly but all persons are created equal.
recommend Peter S. Canellos’ 2021
Seeking to combat a different type biography of Justice Harlan, The
of prejudice, next month your ISBA Great Dissenter.
is among the sponsors of the Law NED P MASBAUM MD
FORENSIC PSYCHIATRY
vs. Antisemitism Conference at IU One manifestation of that
McKinney School of Law on the indissoluble linkage referred to by CONSULTATION • RECORD REVIEW
IUPUI campus on March 13 and 14. I Justice Harlan is familiar to baseball CIVIL • CRIMINAL • PLAINTIFF • DEFENSE
hope to see you there. fans. As in other sports, each PSYCHIATRIC EXAMINATION
ON LOCATION THROUGHOUT INDIANA
baseball team periodically retires
EXPERT WITNESS TESTIMONY
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can do to ensure “We the People” ballplayers. As the movie title FX. (317) 575-1898
as proclaimed in the preamble to reflects, Jackie Robinson’s number USPS: P.O. Box 3005, Carmel, IN 46082
Email: NPMMD@FORNPSYCH.com
our Constitution truly extends to was 42. It is hardly surprising the
Website: www.FORNPSYCH.com
all citizens, there are hopeful signs Dodgers, now in Los Angeles, long Voicemail & Email Messages Retrieved & Returned
11
INBAR.ORG • JAN/FEB 2022TWO ISBA PROGRAMS
WIN AWARDS
By Res Gestae Editor
Thank you for picking up the
combined January/February issue
of Res Gestae. We have several
insightful articles to share with
you. But first, we want to highlight
two award-winning programs ISBA
members and staff have shared with
the community.
ISBA BENCH AND BAR
CELEBRATION OF THE 19TH
AMENDMENT WINS STAR AWARD
The ISBA Bench and Bar Celebration
of the 19th Amendment was named
the 2021 Outstanding Individual
Program/Event at the Indiana Society
of Association Executives’ (ISAE’s)
20th Annual STAR Awards. The award
recognizes an exceptional single-day,
non-convention event focused on
education, advocacy, or networking
produced by an individual or
association in Indiana.
The event was recognized for its
success in connecting women leaders
of the past, present, and future.
A partnership with the Indiana
Supreme Court and the Indiana
Women’s Suffrage Centennial
Commission, the event honored
both the 100-year anniversary of the
19th Amendment and the 13 women
judges on Indiana’s Appellate
12
R E S G E STA E • I S B ACourt who helped pave the way for its work continues to evolve in
today’s women legal professionals. the members who attended and
275 Indiana legal professionals, participated in the conversations.
many of whom were women, came
together for a celebration that One attendee said, “The ISBA Open
showcased how the administration Conversations program represents
of justice in Indiana is fairer thanks a true and genuine attempt at the
to women’s influence, highlighted legal profession moving forward, by
remaining areas of improvement, facilitating open, honest, and civil
and reminded the next generation of conversations about race, inequality,
women leaders that their potential is and next steps. I see positive
limitless. progression in each successive
month’s webinars, as well as in my
One attendee said, “I left this expanded awareness of colleagues’
event with a sense of pride in respective experiences and my
what the women before me were inadequacies in understanding.”
able to accomplish, appreciation
for the women of color who were Angka and Justice David discuss
systematically excluded and what they’ve learned throughout
overlooked, and a renewed drive to the program and how members
continue pushing for voting rights in can contextualize the year’s work
our country.” moving forward in “Time of
Reflection – An Open Conversation
OPEN CONVERSATIONS about the Open Conversations
WINS LEXISNEXIS Program” on page 18.
COMMUNITY & EDUCATIONAL
OUTREACH AWARD The ISBA strives to support lawyers
professionally and personally
Open Conversations, hosted by ISBA through education, connection, and
board member Angka Hinshaw advocacy. We wouldn’t be able to
and Indiana Supreme Court do this work without the support
Justice Steven David, was named of our members who help provide
the winner of the LexisNexis the programming that supports
Community & Educational Outreach these goals. Thank you to everyone
Award. This award, given annually involved in the planning and
by the National Association of implementation of these programs.
Bar Executives (NABE), honors Congratulations on these well-
outstanding bar public service and deserved awards!
law-related education programs
across the country.
This is the second time Open
Conversations has received national
attention. The program also
received the Award of Outstanding
Achievement from the Association
of Continuing Legal Education
(ACE) for its candid dialogues
about race and culture in the legal
landscape. Though the program’s last
conversation occurred in December,
13
INBAR.ORG • JAN/FEB 2022STATE OF THE JUDICIARY
INDIANA COURTS:
FULFILLING OUR
CONSTITUTIONAL
RESPONSIBILITIES
14
R E S G E STA E • I S B AFEATURE
By Hon. Loretta H. Rush
INTRODUCTION
Welcome to the State of the Judiciary. It’s always a privilege
to address you in this magnificent chamber. We are one of
the few states in the country where all three branches of
government are housed in one building. While each of our
branches has independent obligations, our proximity to each
other cultivates opportunities to work together in so many
ways for the benefit of every Hoosier.
As Chief Justice of Indiana, it is my constitutional
responsibility to report to you the state of Indiana’s courts—
my eighth such address. And the message I offer today is one
of perseverance.
CONSTITUTIONAL PROMISE
Throughout these last two years, your judiciary has embraced
solutions to keep courts operational, resulting in the
resolution of two million cases. But success is not measured
solely by the number of cases we decide. Why? Because the
Indiana Constitution’s Open Courts Clause promises every
Hoosier a fair, impartial, and accessible justice system. And
we are delivering on that constitutional promise.
Yes, your Indiana Supreme Court thoughtfully decides cases—
as our Constitution requires. But the Constitution further
charges us with critical administrative responsibilities—
responsibilities that are vital to the rule of law, because a
judge’s decision-making is only as good as the legal system in
which it takes place.
Across our 92 counties, your dedicated trial court judges
confront an increasingly complex array of criminal,
business, family, housing, and debt cases. In many ways,
courts have become the government emergency room for
society’s worst afflictions. Substance abuse, mental illness,
domestic violence, homelessness—the challenges brought
to courtrooms each day are the same challenges facing
your constituents. And, like you, we are determined to find
solutions. We share in the Governor’s stated desire to uphold
Indiana’s reputation as a place Hoosiers want to live, work,
play, study, and stay.
15
IN
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FEUB
G 22002221Today, I will highlight four critical STRENGTHENING HOOSIER FAMILIES MODERNIZING OUR COURTS
components of our constitutional
responsibilities. We are instituting court reforms to We are innovating—from recently
better serve vulnerable and endangered completing one statewide case
INCREASING PUBLIC TRUST children and adults, to better support management system to increasing the
our veterans, and to better help our speedy resolution of business disputes.
We are implementing initiatives to families navigate their way through We are committed to leveraging
increase confidence in the judiciary. divorce, child custody, or evictions. technology to better deliver justice
And why is public trust so critical to the And, in doing so, we are also addressing across our state.
judiciary? Because it’s the judiciary’s the ever-increasing number of Hoosiers
currency. As Alexander Hamilton entering our courtrooms with substance These efforts are foundational for
famously pointed out in the Federalist use disorder and severe mental illness. fulfilling that constitutional promise
Papers, we have “no influence over of providing a fair, impartial, and
either the sword or the purse.” True, IMPROVING PUBLIC SAFETY accessible justice system for every
but we do have tremendous influence person, in every Indiana community.
over Hoosiers’ trust in government. We are expanding problem-solving
Every day, thousands of citizens across courts and remain committed to PUBLIC SERVICE
Indiana enter our courtrooms, where working with all justice partners to
they are guaranteed a fair, impartial, safely implement pretrial reform. When we are all in this room together, it
and accessible justice system. So we is apparent that we have a tremendous
must operate a justice system that connection, a bond we share because
bolsters our currency. we chose public service. While we took
different paths to office, the underlying
motivation is the same: to serve the
people of our state. And one of the most
deeply committed public servants of our
time—one we should all aspire to be—is
Justice Steven David.
Justice David will step down from the
bench after nearly 30 years as a judicial
branch leader and the longest-serving
justice currently on the Court. A highly
decorated colonel in the United States
Army, his service spans 28 years and
includes tours of duty in Iraq and
Guantanamo Bay.
As a tireless champion of justice, he has
selflessly led many of the court reforms
that I am going to speak about today.
Justice David please come to the podium
and provide an update on several of the
initiatives.
REMARKS BY JUSTICE
STEVEN H. DAVID
Thank you, Chief Justice Rush. We have
served as judicial officers together
for over 20 years. So thank you for
16
R E S G E STA E • I S B Asharing some of your time today with justice reform. They allow us to
me. For a ninth generation Hoosier who enhance public trust and safeguard
grew up in Ogilville, Indiana, this is a "We have launched the constitutional rights. We are working
tremendous honor. with you and our friends at the
Commission on Equity Indiana Prosecuting Attorneys
OK, the big news—let’s talk about the and Access in the Court Council, public defender agencies, law
modernization of the courts through enforcement, and other stakeholders
technology.
System. Don’t be afraid to build a more constitutionally
of it; we aren’t." transparent system to protect due
We now have a unified case process and equal protection rights
management system. It’s in every while maintaining public safety. We
county! I’ll say it again: one statewide envision transformative and lasting
case management system, with public mutually exclusive; together, they are change in which we are not holding
access at mycase.in.gov, with 34 million mutually successful! low-risk people in county jails. We have
visits last year. We couldn’t have done 12 counties now certified as pretrial
it without your support, your trust, and We have 118 of these specialized service agencies led by the courts and
your confidence. All Hoosiers now have dockets statewide and 21 more in the 30 more in the planning stages. Our goal
free, 24-7 access to court information. planning process. They include drug, is simple: to make sure that before trial,
family recovery, domestic violence, the right people are in jail for the right
And we have our e-filing system that mental health, and veterans treatment reasons. Nothing more complicated
is also in every county; every week courts. It has been my honor to witness than that.
about 140,000 electronic filings move hundreds of people graduate from
through the system—paperless! This these extraordinary programs. They And what about increasing public
saves millions of dollars for all users, are incredibly time-consuming local trust as the Chief Justice referenced?
including government agencies. By initiatives. But as a veteran; the son, I wear this wrist band that says, “the
supporting us in this journey, we are grandson, and father of a veteran; and rule of law always.” It is the rule of law
a more responsive and transparent the husband of a Navy officer who and our respect for it that separates us
judiciary. has been recalled to active duty—I from most of the rest of the world. It
am truly grateful for your support of makes us the envy of most of the world
Thank you also for your unwavering these profoundly impactful and life- and the enemy of some of the world.
support for commercial courts, changing, indeed life-saving, programs. It is precious. It requires constant
available statewide. 1,300 cases have care and attention. It takes work and
moved through this sophisticated If you need to feel good about the good commitment to ensure that sacred
system that handles challenging you do and the support you have given phrase, “and justice for all!”
business-to-business disputes. It’s us in this work, please attend a problem-
timely, cost effective, predictable, and solving court graduation. You must We have launched the Commission on
fair. Thank you to the Commercial experience it to really appreciate it. Equity and Access in the Court System.
Courts Committee, which has listened Watch the very police officer and the Don’t be afraid of it; we aren’t. It is all
to the needs of practitioners, corporate person they arrested for drug use stand about improving our systems. It is our
counsel, and judges. A special shout together and hug each other in tears and way of doing a friendly audit of our
out to Kevin Brinegar of the Indiana triumph. Or attend a veterans treatment own processes. And we aren’t doing
Chamber of Commerce as well as court graduation where a service it alone. Thank you legislators Travis
your own Senator Eric Koch and member—scarred by the experiences Holdman, Greg Taylor, Greg Steuerwald,
Representative Greg Steuerwald. and trauma of service, sacrifice, and and Ragen Hatcher, along with my
conflict—who was once willing to give Vice-Chairs Norris Cunningham and
Indiana is a national leader in their life for all of us, now has a new Deborah Daniels. Will everyone who
specialized courts, often called life, thanks to all of you. It just doesn’t is serving on the Commission or any of
problem-solving courts. They focus get any better than that. its 8 working groups please stand and
on accountability, but also treatment. accept our thanks?
Accountability and treatment are not Let’s talk about public safety, which
includes pretrial and criminal
Continued on page 41...
17
INBAR.ORG • JAN/FEB 2022OPEN CONVERSATIONS
By Justice Steven David
and Angka Hinshaw
TIME OF REFLECTION -
AN OPEN CONVERSATION ABOUT THE
OPEN CONVERSATIONS PROGRAM
What a year it has been for all of us! Personal triumphs
and disappointment. Anxiety about our future – both
personal and professional – yet we move forward.
Together, if we believe in ourselves, our colleagues, our
profession, and our fellow citizens, we can overcome any
challenge. Together, we can make real and long-lasting
positive changes to our world. Failure is not an option.
During 2021, over 1,500 people viewed the live “Open
Conversations on Race and Racism.” Thank you for
viewing the program. Thank you to those of you who
will view the programs, as most have been recorded and
are available through the State Bar’s website. Thank
you to the sponsors – bar associations from across the
state, law firms of all sizes (including solo practitioners),
international companies, statewide organizations, all
of Indiana’s law schools, as well as the entire Indiana
Judiciary.
18
R E S G E STA E • I S B AWhat has been the common camps, or racial epithets. For the some is an injustice to all. In 2022,
denominator among the twelve most part, modern day racism we shall continue our journey to
programs? Honesty, vulnerability, looks different, and can be easily eliminate racism and to be anti-
openness, and a willingness to overlooked, even by the most racists.
believe the stories of our colleagues well-intended individuals. The
and friends. We all joined together Open Conversations program has A public conversation between
on the journey of understanding peeled two of the many layers of a young Black woman and an
race, racism, and our parts in the racism onion – awareness and older White man about race and
it, a journey that is complex, conversation. We all learned that racism sparked a successful series
uncomfortable, and scary but so very we have much to learn, individually of conversations among program
necessary. Guests shared experiences and collectively. No one is immune guests that included lawyers, judges,
of micro-aggressions from clients, from the need to be more aware, and other community leaders – not
judges, and peers; negative racial more knowledgeable, and more just within Indiana but across the
and ethnic stereotypes; mistreatment committed to doing more. This is United States. The program has
by police, and the list goes on. a shared responsibility. No matter won two national awards. The most
Some of the experiences shared how we identify – black, brown, recent award was the LexisNexis
were revealed for the first time – to yellow, white, or some other color Community & Educational Outreach
an audience of hundreds. We all or combination – we are resolved Award in December 2021. Were the
listened attentively with ranges of to more clearly understand the Hosts nervous? Yes. Absolutely. But
emotions from tears to anger to fear challenges that we all have and are doing what is right is sometimes
to resolve to shame to hopelessness further resolved that injustice for very hard.
to hope to acceptance of the fact that
we all have so much more to learn
and so many opportunities to make
our state and our nation better.
The Open Conversations program
has helped focus our attention on
what our colleagues and friends
have endured and what some of our
fellow citizens have had to endure
for a very long time. One of the
Providing high value intellectual property
several objectives of the program related legal services for Indiana lawyers
has been to move our profession and
our circles of influence forward to
and their clients since 1982.
eliminate racism once and for all. We are an IP boutique committed to providing our clients with the
best legal services in the areas of patents, trademarks, copyrights,
Historical literature has
trade secrets, computer law, litigation, licensing, and other related
memorialized many accounts of
matters.
racism that led to the gross and
horrific mistreatment of people such We limit our practice to intellectual property because that is what
as Emmett Till, Jesse Washington, we know and that is what we do best and most efficiently.
and more recently George Floyd.
And those accounts are powerful. Our goal is to provide our clients with the counseling, advice, and
But, when you hear and perhaps see other legal services that help them maximize the value of their
racism and the effects of it, it can intellectual property, which in turn increases their strength and
leave you stunned and speechless, profitability.
especially when it happens to
someone you know or know about. E. Victor Indiano – Bruce Bowman – John T. Woods
Many of us can easily condemn
the overt actions of racism such 9795 Crosspoint Blvd Suite 185, Indianapolis, IN 46256
as lynching, slavery, confinement
317.912.1331 www.indyiplaw.com
19
INBAR.ORG • JAN/FEB 2022After a year of intense conversation sensitive topics? As we learned, forward and together chart a course
about racism, attention was needed mindfulness is a tool to effectively onward.
for mental and emotional well-being. discuss race or whichever topics we
The 2021 program series ended find ourselves engaged in. During In 2022, join Open Conversations for
with a powerful conversation about the program, Rhonda posed the quarterly discussions. This year the
mental wellness and its complexity question: “How do you want to be in program will reach beyond race and
when crossed with communities of this moment in time?” Maybe in such address LGBTQIA+, lawyers with
color. Internationally recognized times we should draw upon our year disabilities, and minority religious
mindfulness teacher and University of conversations and try our best groups, and focus on what is being
of San Francisco law professor, to listen, to meet the person where done to change the future and how
Rhonda Magee, led two meditation they are and to try to have a positive you can be a part of it and make it
exercises which set the stage for and respective conversation. If not better. “Thank you Angka, you are
us to begin to understand how us, then who? We can’t continue amazing!” said Justice David. “You
mindfulness and racism intersect. to overlook or be afraid of the past are welcome,” responded Angka
nor underestimate the challenges Hinshaw. “You aren’t too shabby
According to mindfulness.org, we face. We can choose to accept yourself. We did the best we could
“mindfulness is the basic human responsibility for our actions going last year. Let’s keep it going!”
ability to be fully present, aware
of where we are and what we’re
doing, and not overly reactive or
overwhelmed by what’s going on
around us.” There is no doubt that
the benefits of mindfulness bring "We can't continue to overlook or be afraid of the past nor
awareness through observing underestimate the challenges we face. We can choose to
our own mind and increases our
attention to the well-being of others.
accept responsibility for our actions going forward and
But how does mindfulness help together chart a course onward."
when we find ourselves intentionally
or unintentionally in conversations
about race, racism, and other
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20
R E S G E STA E • I S B ATOGETHER WE
ARE STRONGER:
ADDRESSING THE SHORTAGE OF
RURAL ATTORNEYS
By Cory Sprunger
W
hen an attorney graduates from
law school, they must decide more
than just what kind of law they
want to practice: They must decide where
they want to practice and what kind of life
they want to live. Most new lawyers find the
gravitational pull of the big cities, or at least
the perception of the big cities, too much to
resist.
Unfortunately, this perception has robbed
many attorneys of the rich and fulfilling
legal career a small-town practice can afford,
and it has unintentionally resulted in a
generational exodus of young lawyers away
from their hometowns and into a handful
of big cities. Years of this steady emigration
has left our rural residents with 300%
fewer attorneys per capita than their urban
neighbors. Four counties in Indiana contain
60% of our attorneys while the remaining
40% are scattered across 88 counties.
The rare lawyer moving back to a rural area
is invariably a child of an already established
attorney. Otherwise, finding a new lawyer
to move back home is an almost extinct
occurrence. Due to the depressed supply of
lawyers, those who have managed to stay
are usually overworked and struggle to meet
the demand for legal services, often leaving
21
INBAR.ORG • JAN/FEB 2022the client to face longer waits and When firms across the state share
delayed access to our legal system. the costs of overhead, consolidate
purchasing power, and delegate the
If the supply of attorneys in our time spent “running” the business to
rural communities is low and the a small group of people, the barriers
demand for legal work high, why begin to crumble and the path to
don’t the rules of economics push the bringing attorneys home starts to
price for legal services higher and emerge. Our solo and small firms
attract more attorneys back to their are much stronger together than any
hometowns? These basic tenants of individual firm could ever be alone.
economics are at work and pushing
prices higher, but the profits are not The concept is not new. The big
enough to sufficiently incentivize firms naturally consolidated their
attorney relocation. Why? Because administrative duties and expenses
three major barriers block the path. long ago so each individual attorney
They are the: could focus solely on billing and
practicing law. But when they did,
1. High cost of overhead a they probably didn’t even think
single small firm must about it because it was intuitive
disproportionately bear, to delegate these “business” tasks
undermining the firm’s elevated to a small group of people so the
revenue and degrading its profit lawyers could be lawyers. It was
margin; easy to do when they were all in the
"Our solo and small firms are much stronger than any
individual firm could ever be alone."
2. High cost of time a solo or small- same building (or possibly a few
firm attorney must divert to buildings throughout the country).
“running the business” instead But in this world of technology and
of practicing law and generating collaboration, solo and small firms in
income; and our rural communities now have the
3. Unfair perception of what it tools and capabilities to replicate this
means to be a lawyer in a small amongst ourselves across the state,
town, which disincentives eager thereby leveling the playing field.
new lawyers.
Over the past seven years my
POSSIBLE SOLUTION: TOGETHER wife and I (who practice together
WE ARE STRONGER and own Sprunger & Sprunger)
pioneered a new law-firm model
The answer to reducing these aimed at tearing down these barriers
barriers is simple: working together. uniquely shouldered by the solo and
22
R E S G E STA E • I S B Asmall-firm practitioner. Together, efficient as margins of waste feasibly manage. Together
we invested the time, energy, and are reduced. For example, one we can address facilities,
resolve necessary to translate the phone receptionist for a small marketing, HR, and payroll with
idea into a logistically workable firm may cost $40,000 a year professional staff dedicated only
reality. Along the way, we have after wages, benefits, payroll to our firms. We are all familiar
been pleasantly surprised to keep taxes, and costs of equipment with various vendors who each
discovering new groups of attorneys are included. While the firm offer individual services, but
who benefit from this model: needs someone to cover the together for the first time, we
young attorneys who never thought phones all the time, they may can provide extra simplicity
moving home was possible, retiring only ring a quarter of the time. by doing it all when we do it
attorneys who found the answer to a By eight firms joining together together.
solid succession plan, niche-practice- and sharing the cost of two 4. Increased opportunity and
area attorneys who found enough receptionists, each firm gets synergy. Finally, opportunities
clients to justify their narrowly their phones answered all the are bigger when we work
tailored practice in a small town, and time, but each firm only pays a together. Being part of a bigger
existing attorneys who just want to quarter of the receptionist, or organization opens doors and
earn more and experience freedom $10,000.00 instead of $40,000.00. career opportunities that are
from their administrative headaches. 3. Better expenses. While the not possible on your own. As
Across the board, we found by expenses to run the practice we work together it becomes
joining together, our attorneys have: are cheaper when purchased possible to develop trusted
together, they are also better. It referral networks and niche
1. More time. Attorneys save time becomes practical to invest in practice areas that would not
by avoiding the administrative infrastructure or equipment that otherwise be feasible in a single
headaches of running the would otherwise be unattainable small town. The bigger we
"business" of the law firm. for a single small firm. For grow, the more synergies reveal
According to Clio's 2020 Legal example, together the firms can themselves.
Trends Report, the average invest in better network security
Indiana attorney only bills 32% than any individual firm could
of their time worked, or 2.56
hours in an 8-hour day. In rural
firms utilizing our model, our
attorneys are shielded from their
administrative burdens and
have accordingly increased their
billings by 107%. Therefore,
each attorney provides 107%
more legal services to their
underserved communities
(stretching each attorney farther
to chip away at that 300%
lawyer-to-resident per capita
disadvantage our rural residents
face), the attorney doubles their
revenue, and the attorney gets
to do more of what they love:
practice law.
2. Reduced expenses. By
consolidating expenses
across multiple firms, simple
economies of scale decrease the
cost. Practices become more
23
INBAR.ORG • JAN/FEB 2022REDEFINING SMALL-TOWN LAW that is unmatched. The work you one of the 20 or so rows below me,
do as a lawyer in a small town has I had touched at least one person’s
The last barrier is a mistaken a direct and ascertainable impact life through my practice. That level
but stubborn perception the big on real lives. Nowhere else can you of tangible impact is the norm and
cities are where “real lawyering” see a friend from elementary school not the exception in a small-town
occurs and a small-town practice laughing at the grocery store with practice. And with a model like the
is somehow second rate with less the children you helped him adopt. one we are pioneering, a lawyer can
opportunities, less income, and less Nowhere else do you see a young have this fulfillment plus a work-life
of a chance to make a real difference mother and child at the high school balance without sacrificing the big-
in the world. basketball game who you helped city income.
get back on their feet after the
The reality couldn’t be farther from father’s life was taken in a vehicle I am hopeful reducing these barriers
the truth. I would argue a small-town accident. One day, while sitting in with models like ours will allow
practice, among your family and the balcony at church, I looked down more attorneys who have felt the
friends, holds a level of fulfillment and realized that in just about every tug or calling to move home to do
it. And in doing so, begin to balance
the scales for rural residents who
deserve equal access to legal counsel
when the troubles of life that only a
lawyer can fix come knocking. But
we can only do it together.
If this piques your attention, I
encourage you to contact me directly
so we can continue this important
discussion - together.
Cory Sprunger, Managing Partner
Sprunger & Sprunger
cory@sprungerandsprunger.com
www.sprungerandsprunger.com/join
(260) 589-2338
24
R E S G E STA E • I S B ACRIMINAL JUSTICE NOTES
By Ruth Johnson and
Jack Kenney
CONSIDERING MURDER
BY JUVENILES
In three cases, the Indiana Supreme Court and
the Court of Appeals grappled with issues of
juveniles who committed murder. The Supreme SUPREME COURT CASE
Court reinstated a 60-year sentence for a
15-year-old tried as an adult as an accomplice to Tyre Bradbury v. State of Indiana, 21S-PC-441,
murder after the juvenile’s sentence had been October 1, 2021
vacated by the Court of Appeals after the denial
of post-conviction relief. A 13-year-old tried as Ineffective assistance of counsel claim rejected,
an adult for murder had his 63-year sentence stipulating to a disputed element of crime and failing to
reduced to the advisory 55-year sentence for seek lesser included offense instruction
murder, the Court of Appeals finding he was not
the worst of the worst. In yet another case, the Tyre Bradbury was 15 years old when his 19-year-old
Court of Appeals upheld a 115-year sentence for friend shot and killed a toddler while firing at a rival
murder and attempted murder for a defendant gang member. Bradbury had provided the gun to the
who was 16 years old at the time of the crime.
25
INBAR.ORG • JAN/FEB 2022shooter and was charged as an adult effectively reinstating his murder an instruction was not a strategic
with murder as an accomplice. In conviction. Justices Steven David, decision. This deficient performance
a 3-2 split, the Indiana Supreme Mark Massa, and Geoffrey Slaughter prejudiced Bradbury given the
Court reinstated Bradbury’s murder affirmed the post-conviction court’s conflicting evidence that would
conviction after it had been vacated ruling that Bradbury’s counsel was have likely created a serious enough
by a split decision in the Court of not ineffective. dispute over Bradbury’s culpability
Appeals on appeal from the denial of as an accomplice for the court to
post-conviction relief. The majority found trial counsel have given the instruction.
was not ineffective for failing to
Bradbury argued his trial counsel’s request a jury instruction on the COURT OF APPEALS
performance was deficient and lesser-included offense of reckless
he was prejudiced. The trial court homicide and stipulating to the co- Alphonso James III v. State,
denied his post-conviction relief defendant having been convicted 11/4/2021, 21A-CR-148
petition. of murder as the principal, thus
conceding the co-defendant had the Nearly-maximum sentence
A split Indiana Court of Appeals requisite intent to kill. Justice Massa, inappropriate for 13-year-old tried as
reversed the trial court, finding joined by Justice Slaughter, issued an adult
trial counsel ineffective in a concurring opinion to express
stipulating to the co-defendant’s his belief that defense counsel’s Alphonso James III was 13 years
murder conviction and failing to performance was effective and old when he killed an acquaintance
request a jury instruction on the something to praise rather than during an exchange involving an
lesser-included offense of reckless second guess, even if it failed to lead Xbox, money, and a firearm. While
homicide. to acquittal. inside a vehicle during the exchange,
James reached for the victim’s gun
Judge Nancy Vaidik dissented from Justice Goff, joined by Chief Justice while also drawing his own gun and
the Court of Appeals majority. Rush, dissented. They found shot the victim nine times.
deficient performance in counsel’s
The Supreme Court accepted the failure to consult with Bradbury After a bench trial where James
case on transfer and likewise split, about whether to request the lesser- admitted the shooting but claimed
affirming the denial of Bradbury’s included instruction. Counsel also self-defense, he was sentenced
post-conviction relief petition and testified his failure to request such to 63 years of imprisonment. At
sentencing the trial court found
James’s offense was heinous and
aggravated, he was beyond the
rehabilitation of the juvenile justice
system, and the community’s
safety and welfare were served by
sentencing him as an adult.
A unanimous Court of Appeals panel
partially reversed James’s 63-year
sentence, reducing the sentence to
the advisory sentence of 55 years
for murder, holding the 63-year
sentence that matches the harshest
sentences imposed on hardened
adult offenders was too severe for
James, a 13-year-old waived to adult
court.
26
R E S G E STA E • I S B AThe court found treating James stabbed to death, and his wife was taken for DNA analysis. After more
the same as an adult offender for severely injured. Seven years later, testing of items from the trash pull,
sentencing purposes was illogical police sent the DNA to a genealogy police obtained a search warrant for
and contravened the basic notion company for testing and received Corbett’s DNA, which matched DNA
that juveniles are different from Corbett’s name as a possible lead. at the crime scene.
adults in sentencing and are Police then conducted a “knock and
generally less deserving of the talk,” followed by a trash search of Corbett, 16 years old at the time
harshest punishments. Corbett’s home where items were of the offense, was convicted of
Winston E. Corbett v. State, 21A-
CR-118, 11/10/2021
Murder and attempted murder "The court found treating James the same as an adult
convictions and 115-year sentence offender for sentencing purposes was illogical and
upheld despite defendant’s young
age and erroneous admission of
contravened the basic notion that juveniles are different
evidence from adults in sentencing and are generally less
deserving of the harshest punishments."
Police collected DNA from a murder
scene where the victim had been
Pursuant to Indiana Court Rule 1.15, an audited financial statement of the Indiana Bar Foundation’s IOLTA
program for the prior year is published in this issue of Res Gestae.
Indiana Bar Foundation, Inc.
Schedule of IOLTA Activities
Year Ended June 30, 2021
REVENUE:
IOLTA revenue $373,442
Total revenue $373,442
EXPENSE:
Administrative expense:
Payroll, taxes, and employee benefits $152,905
Office supplies and leased equipment $18,338
Accounting fees $14,524
Meetings -
Membership dues $4,876
Telephone $3,034
Unreimbursed IOLTA expenses ($61,677)
Total IOLTA administrative expense 132,000
Net IOLTA income $ 241,442
27
INBAR.ORG • JAN/FEB 2022You can also read
