The Indiana Supreme Court's voting patterns in criminal decisions.

• Author: Cherna, Jason A.

1. INTRODUCTION

   The Indiana Supreme Court's record in criminal cases has been overwhelmingly pro-prosecution. The court favored the prosecution 76% of the time in its non-unanimous decisions. (1) With five justices on the court, criminal defendants have found themselves hard pressed to attain the three votes needed to succeed on appeal. Chief Justice Randall Terry Shepard and Justice Brent E. Dickson were consistent votes in favor of the prosecution. Only Justice Robert D. Rucker tended to vote in favor of the defendant. Both Justice Frank Sullivan, Jr. and Justice Theodore R. Boehm voted for the prosecution in over half of the cases; they were, however, occasional swing votes for the defendant.

   This high court study focuses on the Indiana Supreme Court's divided criminal decisions, (2) specifically those non-unanimous criminal decisions rendered during the five years between September 1, 2001 and August 31, 2006. (3) These decisions are those where at least one justice either dissented from the majority or separately concurred with a different line of reasoning. (4) There were sixty-three non-unanimous criminal decisions.

   This study begins by examining the importance of reviewing judicial decisions, followed by a statistical reviews of the Indiana Supreme Court's non-unanimous criminal decisions in order to determine: (1) the court's overall voting patterns in favor of the prosecution; (7) (2) the court's overall voting patterns in favor of the defendant; and (3) the specific breakdown of the court's voting patterns over issues involving search and seizure, fair trial, (8) and the death penalty. (9) The study then shifts to focus on the voting patterns of the individual justices. The apparent ideological leanings of the justices gleaned from the voting patterns are compared in order to determine where each justice falls on the court's pro-prosecution/pro-defendant spectrum. Finally, this study concludes with some reflections on the voting patterns on the court and the implications for practitioners arguing before the Indiana Supreme Court.

2. UNDERSTANDING THE JUDICIAL PROCESS (10)

   Lawyers are "operators of the toll bridge[s] across which anyone in search of justice [must] ... pass." (11)

   In all criminal appeals, each of the justices on the court must decide whether to vote in favor of the prosecution or the criminal defendant. Arguing the validity of the issue in question will only get a practitioner so far at the appellate level. One should understand the true underlying ideologies of the appellate justices in order to stand a better chance at being granted a reversal, vacation, dismissal, or affirmance on appeal. High court studies give practitioners an opportunity to understand the ideological stances of the justices on a particular court. Additionally, high court studies allow practitioners to enter an appellate court knowing which of the justices can be swayed over the issue being argued and which of the justices cannot. Surely, the conclusion cannot be drawn that the validity of an issue will never play a role in a justice's line of reasoning for voting in favor of the prosecution or the criminal defendant. However, the combination of having a strong understanding of the issue, the knowledge of which justices can be swayed, and the knowledge of how to present the issue at-hand to each justice, aids practitioners to zealously represent (12) their clients.

   In The Nature of the Judicial Process, Benjamin N. Cordozo wrote, "[w]e cannot transcend the limitations of the ego...." (13) Additionally, Oliver Wendell Holmes advocated that judges "pretend" how they develop a conclusion or vote a certain way based on putting forth objective factors in the writings of opinions such as analogies to other case law, the facts of the case at-hand, the legislative histories, the precedent of other case law, as well as other texts written on the topic. (14) Ultimately, whether it is conscious or unconscious, judges use their own personal ideologies, morals, values, faith, education, and life experiences to decide how to vote over a particular issue. Once the brief has been filed, and the oral argument has been presented, the judges must decide whether to vote in favor of the prosecution or the criminal defendant. Judges frequently shine a proverbial bright light in society's eyes by writing opinions that appear on their face to have been reasoned and decided based on objective criteria. The objective criteria contained in court opinions are, however, merely the means to an end sought by the judge. Often, judges do not write why they truly made a decision because the actual factors are extremely subjective, or the judges convince themselves that they are being completely objective.

   3. Herman Pritchett, one of the foremost scholars of judicial process, wrote that judges "are deeply troubled by the implications of their roles as social engineers. Some of the concerns of the judges no doubt stems from the realists' success in demonstrating not only that judges have a wide range of discretion, but also that subconscious forces struggling within a judge's own psyche play a major part in shaping judicial decisions." (15)

   In Courts, Judges, & Politics: An Introduction to the Judicial Process, Pritchett, together with Walter Murphy, articulates that one of the underlying purposes for writing the book was to "encourage students" to take the time and effort to study judicial decisions. (16) Pritchett, like other judicial scholars, believes that by studying the "work of judges" a common voting trend can be pinpointed and a "central set of politically relevant ideas and values that give order and coherence to the work of judges" can be derived. (17) The most effective way to shed light upon a judge's voting trend is by studying divided decisions. "Any justice who believes that the opinion writing is taking an undesirable path is free to write a separate opinion, concurring or dissenting, or join with another justice in so doing" (18) Judicial conferences are like a war, one must choose their battles wisely by only confronting the opposing side over issues worthy of gaining ground because only so many battles can be fought before the loss of a foothold on another issue becomes certain. Judges will only divide on issues in which the individual justices have strong beliefs over--whether those beliefs are objective or subjective in merit. Studying the statistics of a judge's voting patterns in divided decisions sheds light upon the judge's true ideologies and beliefs because the judge felt that the issue was important enough not to conform with the majority when the outcome of the decision would be unscathed by the dissent or concurrence. (19)

3. VOTING PATTERNS ON THE INDIANA SUPREME COURT

   "A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed." (20)

   The Indiana Supreme Court is starkly pro-prosecution. The court ruled in favor of the prosecution most frequently in cases involving the death penalty. On the other hand, the court was most lenient on the defendant when reviewing issues of search and seizure. Of the sixty-three total non-unanimous cases for the five years, 76% were decided in favor of the prosecution, (21) stated otherwise, only 24% favored the defendant. (22)

   In decisions involving the death penalty the court was in favor of the prosecution 88%, (23) and in favor of the defendant 12%. (24) Additionally, in decisions involving search and seizure the court was in favor of the prosecution 56%, (25) and in favor of the defendant 44%. (26) Further, in decisions involving fair trial the court was in favor of the prosecution 75%, (27) and in favor of the defendant 25%. (28)

   Clearly, then, the criminal defendant is at a distinct disadvantage in most criminal cases. The Indiana Supreme Court's law and order stance, in favor of the prosecution, has made it difficult for the criminal defendant to succeed on appeal, except perhaps in cases involving search and seizure.

4. INDIVIDUAL JUSTICES: REVIEW OF CRIMINAL DECISIONS

   There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them--inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in James's phrase of "the total push and pressure of the cosmos," which, when reasons are nicely balanced, must determine where choices shall fall. In this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. (29) The justices on the Indiana Supreme Court can be divided into three groups. Shepard and Dickson fell on the far right of the court's ideological spectrum, which was apparent through their voting patterns in favor of the prosecution. Sullivan and Boehm were the swing votes on the court and fell somewhere between the middle and right of the court's ideological spectrum, ultimately favoring the prosecution. Rucker was the lone advocate for the defendant. Rucker's ideology placed him on the left side of the spectrum favoring the defendant. He voted in favor of the defendant 58% of the time, and was by far the most pro-defendant justice on the court. (30)

   1. Chief Justice Randall Terry Shepard

      Governor Robert D. Orr appointed Chief Justice Randall Terry Shepard to the Indiana Supreme Court on September 6, 1985. (31) The fact that Shepard generally voted in favor of the prosecution was the most likely reason Governor Orr, a Republican governor...