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The Indianapolis Bar Association (“IndyBar”) has learned of recent public statements made by Doug Carter, Superintendent of the Indiana State Police, in a local television interview regarding the Marion County criminal justice system and the Hon. Judge Jennifer Harrison. These statements include specific references to the case of Luis Leyba-Gonzalez, the defendant charged with the crimes of Resisting Law Enforcement Resulting in Death and Reckless Driving Causing Death. The statements of Superintendent Carter are inaccurate, mischaracterize the judiciary and the Marion County criminal justice system, and are counterproductive to the goal of public safety. Superintendent Carter not only inaccurately attacked Judge Harrison for the bond, which was set in this case, but he also attacked the Marion County court system in general. The clear inference from Superintendent Carter’s statements to the public were that, but for Judge Harrison, Mr. Luis Leyba-Gonzalez should not have been released from the Marion County Jail. Unfortunately, those statements are factually incorrect, and the resulting inferences are dangerous. Because Superintendent Carter’s statements regarding this case are wrong it is incumbent upon our organization to correct the record; because left unrebutted, many may assume they are true.
Pursuant to both the United States and Indiana Constitutions, criminal defendants are afforded a presumption of innocence through each phase of the criminal process. This includes the phase of setting bail. As such, in determining a bail amount, Indiana law requires that a judicial officer impose conditions that will assure the appearance of the accused for future court hearings along with ensuring no further safety threat to the community. An evaluation of the probable cause affidavit, the defendant’s criminal history, and all other appropriate circumstances supports that the bond issued by Judge Harrison in the amount of $50,000 surety plus $1,000 cash was appropriate.
There are limited circumstances where an accused can be denied bail from the outset of an arrest. Those circumstances do not apply to this case. Thus, had Judge Harrison denied Mr. Leyba-Gonzalez bail at all, as suggested by Superintendent Carter, she would have been violating both the law and his constitutional rights.
Further, Superintendent Carter’s statement that he attempted, and Judge Harrison refused, to discuss this aspect of the case publicly would lead an uninformed person to conclude that Judge Harrison somehow demonstrated leniency in the release of Mr. Leyba-Gonzalez. Our community does not benefit from such reckless rhetoric. Superintendent Carter, in his television interview, said he tried to call Judge Harrison and she would not take the call. Superintendent Carter should certainly know that judges cannot have ex-parte communications (one sided conversations) with the Superintendent of Indiana State Police in a criminal case where his officers are witnesses in that case or where he personally might be a witness. Section 2.9 of the Indiana Code of Judicial Conduct prohibits such ex-parte communication.
If judges were to take calls from parties or witnesses in cases pending in their court, then they would violate their sworn oaths of neutrality and impartiality. The public should have a clear understanding of how our judges are required to act in cases. Just think how it would be if everyone in a case could first pick up the phone and call the judge to directly influence them about the case. Our system of judicial conduct prevents this from happening and the impartiality of our judges is a fundamental part of our justice system.
Our Constitution provides individuals with the right to free speech, and we encourage constructive conversation among members of the community regarding the judicial system to bring greater understanding to these issues and to build upon the important work being done each day in our criminal justice system. It is equally important to note that our judges have an obligation to refrain from participating in that discourse when doing so might undermine and jeopardize the rights of individual litigants. Indiana judges are required by the Indiana Code of Judicial Conduct Rule 1.2 to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Judges and their court staff are prohibited from making any public statements that “might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court or, make any nonpublic statement that might substantially interfere with a fair trial or hearing.”
Given our judiciary’s inability to meaningfully respond to Superintendent Carter’s proclamations, and pursuant to Section 2.10 of the Code of Judicial Conduct, IndyBar has an obligation to do so. Public safety, and justice, is paramount to our members and the larger community. Unlike Superintendent Carter, we are bound by ethical rules that prohibit us from offering false narratives in the public sphere. Constructive and accurate criticism is a fundamental component to ensuring that our judicial process works effectively for all in our community. At IndyBar we provide a positive forum for respectful discourse and education regarding the judicial process, but in instances where an unaccountable individual makes damaging claims that are demonstrably false, we have a collective duty to attempt to correct the record. Doing so is fundamentally important as we work together to ensure that justice is done in a fair and consistent manner in the Indianapolis community.•
Note: No judicial members of the Indianapolis Bar Association participated in drafting this statement.
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