Wednesday, February 19, 2014

Shirley Justice Family Releases Statement On Shooting

SUSPECT APPREHENDED IN LEXINGTON, KENTUCKY-SEE UPDATE BELOW
A tragedy played out yesterday in an ongoing child custody battle on the city's northeast side when Shirley Justice's ex-husband, Christopher Justice, allegedly confronted her and shot her multiple times in the parking lot of a daycare center where she had dropped their daughter off for the day. Christopher has been on the run since the shooting yesterday morning, which left Shirley in critical condition. Here's the family's statement as reported by WTHR's Steve Jefferson:
"We thank everyone for their prayers and outgoing support in this tragedy. Sadly, we were not surprised Christopher Justice would resort to this level of violence. The catalyst to this six-year abusive situation was a praecipe filed by Shirley, as the judge was out of compliance and this removed him from the case. Any order signed by Judge McCarty was negated, and the order he signed would have given the documented domestic violence abuser, custody of their daughter. Custody has been a battle involving mandated psychiatric testing, which came back that she was more than stable and equipped to be a parent, and bias against a single parent with limited resources. Any other references to her character in court documents are conjecture of Christopher's lawyer and his family. We are outraged that Indiana DCS and Family Court did not use the documented information over the years to avoid this devastation to our family. If anyone sees or hears from Christopher, please contact the police department immediately."
As Jefferson's story reports, there has been a protracted battle between Shirley and Christopher since their divorce was granted on March 13, 2009 nine months after Christopher filed for divorce. The Court granted joint legal custody for their daughter with Shirley having primary physical custody of her upon the conclusion of the original divorce proceeding. Jefferson's report indicates that Shirley had filed protective orders against her ex-husband on several occasions, although no order was in place at the time of the shooting.

The triggering event for the shooting appears to be a series of events that played out the week of February 10, 2014. A child custody modification motion filed by the father was heard by Marion Superior Court #3, which is presided over by Judge Patrick McCarty, on November 8, 2013. After more than three months passed without a ruling from the court, Shirley filed a praecipe pro se to remove the case from the court pursuant to Trial Rule 53.1 for failing to rule in a timely fashion. The so-called "lazy judge rule" generally requires a judge to rule on a pending motion within 30 days, unless one of the exceptions provided under the rule applies. The court has 90 days for matters tried that are taken under advisement by the court and entered as such in the CCS. When a party properly files a praecipe under Trial Rule 53.1, the clerk of the courts is required to notify the state court administrator's office, which determines whether the case should be removed from the court it has been assigned and reassigned to a special judge.

According to the chronological case summary, Judge Patrick McCarty issued an order the same day that Shirley filed her lazy judge motion. His order granted the father sole legal and physical custody of the child and ordered Shirley to begin paying child support in the amount of $127 per week to Christopher, retroactive to November 8, 2013. The draconian order stripped Shirley of any overnight time with her daughter. The order entered on the CCS indicates that when she exercised her severely limited parenting time that she was not to allow any male to be present. Upon investigation of the praecipe Shirley filed on February 10, 2014, the Supreme Court rapidly issued an order on February 13 removing the case from Judge McCarty, effective at 8:20 a.m. on February 10, 2014, the same day that a CCS entry was entered reflecting his order stripping Shirley of physical and joint custody of her daughter. This is how the CCS entry entered on February 14, 2014, reflecting the Supreme Court order reads:

Order Received from the Indiana Supreme Court
accordingly, submission of this case is withdrawn from JUDGE Patrick L. McCarty effective as of the 8.20 a,m. February 10, 2014. This matter will be submitted to the Indiana Supreme Court for appointment of a special Judge or such other action deemed appropriate by the the Court. In accordance with Ind. Trial Rule 53.1(E) you must enter this determination in the Chronological Case Summary of the case and notify, in writing. the judge and all parties of record in the proceeding.
Order Signed:  
02/13/204
 
Assuming the withdrawal of the case as of 8:20 a.m. on February 10, 2014 preceded the entry of Judge McCarty's order, then the child custody modification order that he signed on February 10, 2014, the same date it was entered on the CCS, would have been dissolved and the matter reassigned to the special judge the Supreme Court names to assume control of the case. This is the operative language of Trial Rule 53.1 which the Supreme Court would have followed to determine the case should be withdrawn from Judge McCarty:
If the Executive Director  determines that a ruling or decision has been delayed beyond the time limitation set forth under Trial Rule 53.1 or 53.2, the Executive Director  shall give written notice of the determination to the judge, the Clerk of the trial court, and the Clerk of the Supreme Court of Indiana that the submission of the case has been withdrawn from the judge. The withdrawal is effective as of the time of the filing of the praecipe. The Clerk of the trial court shall  record this determination in the Chronological Case Summary under the cause and provide notice to all parties in the case. The Executive Director shall submit the case to the Supreme Court of Indiana for appointment of a special judge or such other action deemed appropriate by the Supreme Court.
Once the Supreme Court withdraws a case from a judge, the judge is required to report to the Supreme Court within 10 days explaining "the nature of the matters held in excess of the time limitations." The judge is also permitted to relate to the Supreme Court any "other facts or circumstances" which he deems pertinent to the delay in ruling on the matter. As I interpret the rule, Judge McCarty could not issue a binding order in the case if the Supreme Court determined that the duly-filed praecipe was filed prior to his order being issued. It's a big no-no for a judge to rush to issue an order after the lazy judge motion is tendered to the court until the Supreme Court has decided whether the case should be withdrawn from the court.

One can only surmise that confusion over the impact of the Supreme Court's order led to a confrontation between the father and mother over the operable child custody order. An attorney representing the father, Jennifer Bays Beinart, tells Fox 59 news that she was filing a motion with the court to compel Shirley to turn custody of her daughter over to Christopher when she learned of the tragic shooting. In her interview with Fox59 news, Beinart made no mention of the case being withdrawn from Judge McCarty per the Supreme Court's order or the impact that order may have had on Judge McCarty's earlier ruling stripping Shirley of custody of her daughter. The case is very complicated. Both sides have gone through successive changes in attorneys and have gone without representation at times. It's not clear to me what the default custody arrangement would be once McCarty's order was dissolved.

An arrest warrant for Christopher's arrest on attempted murder charges has been issued. He remains on the run. Steve Jefferson reported that Christopher used two guns to shoot Shirley multiple times before fleeing the scene and returning to his apartment. He was later seen leaving the apartment a short time later with a duffel bag. The Supreme Court has ordered the court's file on the latest motion filed in the case by the father's attorney withheld from the media due to the large volume of media inquiries and the sensitivity of an ongoing investigation it is undertaking in the matter.

UPDATE: The Supreme Court has appointed Judge David Shaheed pursuant to Trial Rule 53.2 as the special judge in this matter per an order released by the court late this afternoon for failing to rule on a matter tried and taken under advisement by the court after the passage of more than 90 days. Hat tip to Indiana Law Blog.

On a personal note, I have a lot more information concerning this matter that I have chosen to refrain from reporting at this time in hopes that it will be handled through the appropriate investigative procedures in due course and dealt with accordingly.

UPDATE II: Fox 59 News reports that Christopher Justice has been apprehended in Lexington, Kentucky tonight and is being returned to Indianapolis where he will face attempted murder charges.

UPDATE III: WTHR releases this statement from the family of Christopher Justice:

"This statement is not purposed to be an explanation of nor a justification for the shooting of Tuesday morning February 18, 2014. Moreover it is a statement of fact. It is now has been the sincere desire and prayer of the loved ones of Christopher Justice that 'No one should perish.' To that end we have continually pleaded in prayer to God for the life of Shirley Justice and Christopher Justice in the same breath and with one voice. Christopher's mother and I expressed, to all family members and extended family, if anyone were to have contact with Christopher to encourage him to turn himself in to the authorities. In fact, that is exactly what occurred. Christopher Justice turned himself in to police at 150 East Main Street, Lexington KY in the company of a relative at about 8:25PM February 19, 2014.
"That same relative also called an officer with the Indianapolis police department to inform them of Christopher's action. Christopher was not hunted down and captured, he gave himself up to the authorities. Not the action of a mad man or a monster. Judging him is the province of the Court not his family. Nor do we attempt to slander anyone.
"Fact, this is about the custody of a child. Although, at least, one reporter used the adjective of draconian to describe the court order of February 10, 2014 which gave Christopher total legal and physical custody of his daughter, that order was not made in a vacuum or without a host of evidence. If that filing was indeed 'late' the deliberation was diligent. After this long fight for the protection of his only child appeared to be for nothing due to a filing date mishap, this tragic event occurred. We continue to pray for all parties affected by the recent events."

16 comments:

Anonymous said...

now now, no attorney is ever supposed to criticize a trial court Judge, unless that attorney is willing to tangle with Mr. Witte and his Disciplinary Commission.

Gary R. Welsh said...

There's no judgment rendered here on my part. I'm simply relating the action taken by the Supreme Court in response to the lazy judge motion filed by the mother. If attorneys in this state have lost that right as well, then nothing remains of our First Amendment rights under the U.S. Constitution, which we all took an oath to uphold as officers of the court.

Anonymous said...

The lies you tell this statement from shirley is far from the truth . Chistopher justice has been a wonderful father to his child . All he wanted to do was protect his daughter from an abusive situation.

Anonymous said...

You surrender your rights when you raise your right hand and become a lawyer.

If something you say could be construed as casting a judge or governmental official in a negative light, you've attacked the credibility of the profession, and you are subject to sanction.

Anonymous said...

Let's worry more about the negligence of DCS and the courts on this matter, the health, welfare and safety of mother and child, rather than a journalist on a blog doing what should be done---reporting the facts. Seriously....Dig Deeper...More stories like this one out there. WRTV has been a hound dog on this agency...Another fallen due to negligence...

Anonymous said...

No attorney wanst to file a lazy judge motion if it is not necessary. In this case the pro se party filed it incorrectly based on the trial rules. The pro se party was notified if this. The trial judge entered his order she didn't like it and tired may attorneys trying to get a lazy judge motion filed because she didn't like the order. Until the news media actually does investigative journalism maybe then we could trust their facts.

Anonymous said...

Justice delayed is justice denied...unfortunately, in this matter,someone got shot apparently because of that delay.

What will The Indiana Supreme Court do about this?

Well, they still have not issued an order in the matter of Judge Kim Brown, for which The Special Masters recommended she be removed from The Judiciary after a week-long disciplinary case against Brown in which The Masters filed 107 pages of findings of fact, conclusions of law and recommended sanctioons of removal. The commission proved more than 80 rules violations by clear and convincing evidence on 46 of 47 counts against Brown in that matter which concluded in December.

It is now almost 60 days later and The Indiana Supreme Court has not acted on the recommendation. Can The People of Indiana file a lazy judge complaint against The Indiana Supreme Court? -They have the Indiana taxpayers paying her a big salary to do nothing for quite a while now, as well as another salary for the judge sitting in her place.

Gary R. Welsh said...

anon 11: 57, The only person responsible for the shooting is the person who pulled the trigger, who will now face the consequences of that decision.

anon 9:13, The statement put out by the family is their opinions of the events in this highly tragic outcome.

anon 9:18, No, you don't surrender your rights when you become an attorney. If attorneys in this country lose their right to speak out on matters of public concern at any point, then we have ceased to be the democratic republic intended by our constitution and become a totalitarian state.

Gary R. Welsh said...

anon 11:18, The CCS entries, which is an online publicly-accessible record, shows the praecipe and order being filed on the same date. I explained how Trial Rule 53.1 works. The Supreme Court order withdrawing the case speaks for itself.

Anonymous said...

Yes, you do lose all your rights when you become an attorney, Gary. That's what being an attorney is. You are now a part of the state and are required to put the state in the best light to ensure that the public supports and respects the state.

As an attorney, you are watched in every action you undertake, and your attorney license limits your range of action in almost everything you do.

If you get into a customer-service dispute anywhere in the world, the person on the receiving end of your criticism can complain to the Supreme Court that whatever you did and whatever sharply worded statements you used is unbecoming of an attorney, and your license will be under attack.

Just eat your cold pasta primavera if you want to keep your law license.

Mike S. said...

I’m trying to figure out your primary interest in the story, Gary. Is it the seemingly vicious, uncaring nature of the draconian custody and support order Judge McCarty issued in response to the lazy judge motion that needles you? Because that’s the type of legal system we seem to have now in Indiana; even a lay business person sees these ever-present injustices from the bench. Or is it something in the larger picture; the custody comedy of errors with a foreseeable tragic result that upsets your inner sense of justice? I suppose to me the real sadness of the story is that members of the bar are now so afraid to criticize even the worst actions of Judges after the brutal way Ogden was slapped down. How will the profession raise itself up when the disciplinary commission seems primarily to exist to stifle whistleblowing and protect insiders.

Anonymous said...

Anon 9:04: To begin, if you are attempting to come off as high and mighty, please learn some grammar. Secondly, you can't lose ALL your rights. Attorneys are held to a higher standard as well they should. They are officers of the court and there is a covenant assigned. I say this as a non attorney who has read far too many briefs in my business then I care to mention. Lastly, what do you think attorneys who are representing litigants with suits against the state are representing? I encourage you to speak from facts and not half ass opinions.

Anonymous said...

We guarantee you there are more stories out there of bad judges at every level... Pay to players and more. This blogger wrote a story and I'd like to see accountability for the child's health, welfare and safety and not legal drama. But of course, what led to this...legal drama.

Anonymous said...

13 bullets imbedded with risk of major infections. He had multiple weapons. Domestic Violence history...If you see something say something and I am damn proud there are advocates out here speaking up and not covering up. Every citizen should thwart injustices...

Anonymous said...

No one can make the case that a man who shot his childs mother 13 times is a good father. NOT EVER! The public should not only be outraged but should be marching outside the jail! What a horrible injustice.

Anonymous said...

It is absolutely sickening to see any person, lawyer or non lawyer, defend a human being who shoots another UNARMED human being 13 times. Then to claim the shooter was just a "good father"? I am absolutely flabbergasted.

The victim did NOTHING to "deserve" the death penalty without a trial....nor did her actions "earn" her the torture of 13 bullets to her body. NO HUMAN BEING deserves such treatment.

If American lawyers have dropped so low that they believe the actions of this man to be in any way, shape or form "excusable"....then our democracy and Constitution lay in rags. Let the lawyers and judges piss on them.

Disgusting.