Moberly's Decisions Haven't Fared As Well On Review As David's

The Indiana Law Blog has done an incredible public benefit in its in depth reporting during the selection process of our state's next Supreme Court justice, far surpassing any reporting I've seen in the mainstream media. Prior to the Indiana Judicial Nominating Commission's review of the nine finalists for the position, the blog performed an analysis of how well the judge candidates' decisions at the trial court level had fared on review by the state's Court of Appeals and the Supreme Court. "As a general point of reference, over the past five years approximately 22% of cases have been reversed or remanded on appeal,"  the blog found. The likelihood of reversal in criminal cases was higher than civil cases according to the blog. "Indigent criminal defendants have an automatic right to appeal at no cost, and the reversal rate is typically around 15%. Civil litigants, who must generally pay the expense of an appeal, pursue appeals less frequently and are more successful with a 37% reversal rate," the blog continued.

Of the four judges who made the list of nine finalists, Hamilton Superior Court Judge Steven Nation fared the worst with a reversal rate of 35%, followed by Johnson Superior Court Judge Cynthia Emkes with a reversal rate of 33%. Boone Circuit Judge Steve David fared the best among the four judges considered by the Commission this week for the position. His reversal rate was just 18%. Its analysis found that Marion Co. Superior Court Judge Robyn Moberly has been reversed in 28% of her cases reviewed by higher courts. Judge David has had 33 cases in total reviewed by higher courts compared to 71 of Judge Moberly's cases that were challenged.

In a 2007 case involving the murder of a Gary police officer, the only criminal case decided by Judge David that was reversed by a higher court, the Supreme Court reversed his decision to impose the death penalty after two prior trials had found the defendant guilty, citing the constitutional failure of the defendant to receive a speedy trial and his right to due process. Judge David has had just five of his civil cases reversed and all were decided by the Court of Appeals.

Judge Moberly has seen four of her cases reversed by the Supreme Court, including three civil cases and one criminal case. In the criminal case, the Supreme Court found that Judge Moberly "clearly erred by failing to instruct the jury on the specific intent necessary to establish accomplice liability for attempted murder." Judge Moberly saw 13 of her civil cases reversed by the Indiana Court of Appeals compared to three cases in which her criminal cases were reversed by the Court of Appeals. In a 2002 case, the Court of Appeals determined that Judge Moberly had erred in permitted evidence of a defendant's criminal propensity in his trial on molestation charges, finding that its negligible probative value far outweighed the likelihood of unfair prejudice to the defendant.

UPDATE: IU Indy Law Prof. Joel Schumm has offered these inciteful comments on each of the three finalists at the Indiana Law Blog:

Judge David is obviously well-liked and respected by trial judges throughout the state, and every lawyer I know who has appeared before him has had very positive things to say. His work overseeing the delivery of pro bono services to detainees at Guantanamo Bay speaks volumes about a commitment to justice for all.


I’ve known Judge Moberly for several years through my work directing the law school’s Court Externship program, and she has been a wonderful mentor to law students and exceedingly gracious with her time when I’ve taken students to the City-County Building to see the courts and when she came to the law school to hold an oral argument. The breadth and depth of her experience on the bench (and in practice before that) will serve us very well if she is appointed.

Finally, I’ve known Karl for several years through the Appellate Practice section of the state bar. He knows as much about the Court and appellate process as anyone, yet he could not be more humble and gracious. Although his practice has involved a lot of complex civil cases, the answers during his interview demonstrate knowledge about and a commitment to a wide range of other issues--and concern for a fair process for all.

The Governor could not go wrong with any of these three remarkable finalists.