« Ind. Decisions - "LaVille school construction postponed again: Tax judge needs more evidence from DLGF before making final determination" | Main | Ind. Courts -Still more on: Verdict in road-rage shooting trial in Clark County »

Friday, August 21, 2009

Ind. Courts - "Appeals court upholds child molester ruling"; complaints aganst judge

The NFP August 12th COA decision in Steven W. Everling v. State of Indiana is featured in this Aug. 20th story by Justin Schneider in the Anderson Herald Bulletin. Some quotes:

The Indiana Court of Appeals has dismissed the appeal of a convicted child molester who claims he did not receive a fair trial in a Madison County court.

In a ruling filed Aug. 13, Judge Ezra Friedlander denied a claim by former Elwood resident Steven Everling that he was denied a fair trial, failed to receive effective counsel and that the local court abused its discretion in sentencing. * * *

Zaki Ali, Everling’s defense attorney, tried to stop the trial before it even began.

He filed a motion for change of judge and a complaint against Madison County Circuit Court Judge Fredrick Spencer with the Indiana Commission on Judicial Qualifications. The change of judge motion was denied. The day the trial was set to begin, Everling asked for a stay of proceedings and Ali filed for an emergency stay of proceedings; both were denied.

Ali asked Spencer to recuse himself in four other criminal cases after Spencer purportedly used an expletive in describing Christopher J. Mier, one of Ali’s clients. Spencer also allegedly engaged in plea negotiations with Mier at the hearing. Ali could not be reached for comment, but has said previously that none of his clients can receive a fair trial from Spencer, due to personal bias.

Friedlander, on behalf of the Indiana Court of Appeals, said Spencer never acted unfairly during the trial.

“The trial court’s actions and demeanor did not cross over the bounds of partiality,” he wrote. “That a complaint was filed against the trial judge by Everling’s trial counsel in an unrelated case does not establish that the trial court was biased against Everling.” * * *

The Court of Appeals opinion also upheld Everling’s sentence of 110 years.

“The trial court did not abuse its discretion in articulating the aggravating and mitigating factors that underlie the sentence imposed,” Friedlander wrote. “Nevertheless, because the record contains inconsistent statements as to the total sentence imposed, we remand to the trial court for clarification.”

Spencer did, however, leave Everling’s sentence unclear. His oral ruling called for two 55-year sentences to be served concurrently, while his written sentence was for the two sentences to be served consecutively, for a total of 110 years

Spencer said he intended to give Everling 110 years and plans to schedule a hearing to correct the error. * * *

In a separate case, Spencer faces a judicial misconduct complaint involving his actions in a murder trial.

Defense attorney Jeff Lockwood filed a complaint with the Judicial Qualifications Commission in August 2008, claiming that Spencer said he had already decided the sentence for Kathy Jo Ward, who was convicted of manslaughter for the killing of her husband, John Ward.

[ILB - access the story itself for more information on the alleged basis of the complaint]

Spencer said Wednesday that he was aware of the status of that complaint with the Judicial Qualifications Commission, but had no comment.

The Commission considers complaints against judges confidential unless the complaint results in public discipline or charges against the judge.

An earlier story by a different Herald Bulletin reporter, assistant managing editor Stephen Dick, dated April 29th and still available here, is headlined "State investigating Judge Spencer: Allegations stem from Ward murder trial."

Posted by Marcia Oddi on August 21, 2009 10:53 AM
Posted to Ind. App.Ct. Decisions