Saturday, July 31, 2010

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.


Marv said...

Some what of a specious argument don't you think?

I don't have a horse in this race and could care less who gets this slot. However, I think comparing number of cases a judge has had appealed and the number of times they have been reversed to be a somewhat silly method of determining their suitability for an appellate court. It could say a lot more about the number, uniqueness and difficulty of cases that the judge was handling and the local bar than it says about the competence of the judge.

Let's use the analogy of an Oncologist. Do you consider an Oncologist at Mayo Clinic to be a worse doctor than one practicing at a small no name hospital in Lebanon, Indiana because the doctor at Mayo Clinic loses a higher percentage of patients than the one in Lebanon? I would hope not since the doctor at Mayo Clinic gets more cases and worse cancer cases than his associate practicing in the sticks. (I live in Boone County by the way so I can say it is the sticks.)

Finally, you toss around the word "err" concerning cases Moberly has had over ruled as if that is a word seldom used in an appellate decision. Save it for legal laymen. In an appellate case a judge either "errs" or "does not err." When an appellate court says that a judge has erred it does not imply that the judge is incompetent - if it did then every time a judge is overturned by a higher court he should be tossed out of office - boy, would we be looking at some judicial turn over then.

Sean Shepard said...

AI wrote: "Judge David has had 33 cases in total reviewed by higher courts compared to 71 of Judge Moberly's cases that were challenged."

Is that 33 to 71 difference likely based on number of total cases / time on bench or could it represent a difference in the number of cases where an alternative outcome on appeal seemed more likely than not?

Gary R. Welsh said...

Marv, I think the Indiana Law Blog did a great service in putting out the statistical evidence. As the blog noted, the likelihood of a case being reversed on appeal is greater for criminal cases than civil cases. If Moberly had done a disproportionate number of criminal cases during her tenure on the court, it could account for the higher reversal rate. I know she handles civil cases exclusively now as Marion County's judges are assigned either to the civil or criminal division. I'm not sure how long she worked in the criminal division. I believe David has been a judge about as long as her. I'm not sure how their caseloads compare, but I'm guessing he doesn't have the assistance of the commissioners to help him with his caseload like the Marion County judges do. Mulvaney has been dinged by some because he hasn't tried any cases before a jury, but as practicicing attorneys know, there is much more to the practice of law than just being a trial lawyer. He is by far the most knowledgeable of the candidates on appellate law and procedures and the inner workings of the appellate courts in Indiana. Each of the three candidates offers a unique perspective. Any of the three are qualified to serve on the Supreme Court. I can tell you, though, that becoming a trial court judge in Marion County has nothing to do with your qualifications. It is a corrupt, political system we have here and a major embarrassment to our state's judiciary. Sometimes some good judges are produced from the system, but it also puts a lot of people on the bench who members of the bar would never choose to sit on the bench. The Indiana Bar Association has long advocated a merit selection system for Marion County, but as long as the political hacks are still calling the shots, we will only elect judges to the bench in Marion County from both parties who the respective party leaders believe they have in their back pockets. That is not in any way intended to impugn Moberly, but any objective observer will tell you generally how true that characterization is.

Anonymous said...

According to one poster on another forum, Moberly might be a gun grabber. She, allegedly, has issued a court ruling stating that a law abiding, good citizen can't own firearms. Here are the links. She needs to come out on where she stands on the right to keep and bear arms.

Delimac said...

I was maliciously prosecuted due to political motivation via the Indianapolis Mayor`s office.I had three jury trials."Judge" Robyn Moberly presided in all three trials.She was well aware that I was being charged maliciously,politically,and illegally.She participated fully,and willingly with these crimes.She along with many others conspired to obstruct justice.If anyone would like to investigate my claims the cause # is 49F17-96157036 This "Judge" is unworthy to hold the position that she now has.God help us all if she ever makes it to the supreme court.