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Tuesday, September 06, 2005

Ind. Law - Unusual Blakely-related issue pending in Floyd Circuit Court

"Floyd judge set to decide case role: Man in killing wants recusal." That is the headline to this story by Harold J. Adams today in the Louisville Courier Journal. Some quotes:

Floyd Circuit Court Judge J. Terrence Cody will decide soon whether to remove himself from the re-sentencing trial of a New Albany man convicted last year in the shooting death of a Jeffersonville man.

An attorney for Steven Paul argued on Friday that Cody should step aside because his previous sentencing of Paul creates an appearance of bias.

Cody sentenced Paul, 27, last year to the maximum 20 years in prison after he was convicted of aggravated battery in the fatal shooting of 35-year-old Donald "Ducky" Barnett.

The Indiana Court of Appeals threw out the sentence because of new sentencing procedures called for in federal and state Supreme Court rulings made after Paul's trial.

The new rules say that a jury, not the judge, must decide whether there are aggravating circumstances that might warrant anything beyond a standard "presumptive" sentence. The presumptive sentence for Paul is 10 years.

Cody, using the rules in existence at the time, found several aggravating factors last year that he said justified the longer sentence. On Friday he scheduled a new sentencing trial for May in which a jury will take a fresh look at whether those aggravating factors exist.

Stacy Uliana, Paul's attorney, urging Cody to let another judge preside over the trial, said, "There is a rational inference of bias because you already made the determination that Paul is guilty of these aggravators."

Abe Navarro, a deputy Floyd County prosecutor, argued that Cody's previous decision doesn't matter because "it's now in the hands of a jury." Navarro also said there's no reason to believe the judge would not follow the new rules, just as he followed the old rules.

Posted by Marcia Oddi on September 6, 2005 03:04 PM
Posted to Indiana Law