hungrycoyote has a good write up regarding the The 1965 Charles Cotner Case, and it provides a great brief into the case and some good details. What I would like to focus on in this diary is the importance of elections and our judiciary system.

With that I'll be introducing you to the Indiana Judiciary system and how elections can influence it. Normally when you get to the supreme level, Judges are appointed but very often people lack realization that those appointees often come from lower courts where those judges are selected from partisan elections.

So lets hammer the orange gavel, get beyond the corn fields and look into the Indiana Judiciary system.

Indiana, like many states has a mish mash of various courts. What most people think of court is actually a portion of the total court system that might exist in that state. In Indiana for instance when it comes to constitutional courts we have three constitutional courts. These three courts consist of the Supreme Court, the Court of Appeals, and the Circuit Court. Each has a very distinct purpose and purveyance when it comes to law. Now that is not the limit of courts in Indiana, thanks to state law we also have a myriad of probate, town/city, and small claims courts as well.

The Circuit Court could be considered the heavy lifter of the three constitutional courts. This is the court that prosecutes offenders of the state law and hears cases presented by the state. As the example of Cotner above, he was prosecuted and heard in the Indiana Circuit court and was eventually sentenced in the Circuit Court.

The Appeals court is just that, they hear appeals from the Circuit Court. When decisions are handed down from the Circuit Court, such as a sentence from a prosecution..when filing an appeal it is heard from bench from an Appeals judge. They weigh the case on merit and decide if necessary to pass it on to the State Supreme Court.

The Supreme Court is just that, the end all be all. At least until you file for federal review of the case. They take cases from the Appeal court and review them or defer to the lower circuit court decisions.

That is a lot of judges, so where do all these judges come from?

Well lets start with the circuit courts. In Indiana these judges are actually elected in partisan elections for each county. Yep that's right, D or R these judges actually run election campaigns to get elected to the bench. Well, truth be told they often ride the coat tails of the local prosecutor and assume the same campaign the prosecutors of the county/city but you get the idea. So decisions regarding the mundane are often handled by folks who have been elected in a partisan matter.

We'll get to the importance of that latter, lets keep rolling on the remaining two of Indiana's three major courts.

The remaining portions of the courts are appointed by the governor from a list of three names submitted by the state judicial nominating commission. The Indiana nominating commission is chaired by fine folks chosen by a combination of the Governor appointed positions and another few from the Indiana Bar Association. It is chaired by the chief justice of the Indiana Supreme court and is responsible for both nomination of replacements to the appellate but also for hearing complaints regarding the court.

As you can imagine reading to this point, the Judiciary system is a very self serving and feeding system and that it very often feeds from the Governors office with a smattering dash of local elections influence. However, it is very often that Governor that sets the Judicial tone, or rather his judiciary aids setting the tone based on the influence of outside parties to get X person on the bench or Y person in the court.

But there is a counter to that. Lets revisit those Circuit Courts shall we?

In the majority of Counties in Indiana these circuit courts are partisan in nature. So that yes we have Judges running on either a D or R ticket, however what most people miss is that very often as these judges serve their terms and do their jobs, slugging through the day in and day out of ruling over drug convictions, rape charges, breaking and entering, traffic violations (woe be the judge to end up in traffic court), and even sodomy charges, and that these circuit court judges will in all actuality often end up as potential nominations for the various appellate courts.

So what of that Cotner case of some years back?

There were some mitigating circumstances to the case. Cotner technically pleaded guilty on the assumption that a mitigating circumstance would be applied to his sentence. The Circuit court judge at the time in Jasper County, an elected position remember, decided to vacate any mitigation regarding the case and allow prosecution on full and accept the guilty pleading from the accused.

How did Cotner get his sentence vacated then. Technically speaking he was guilty in accordance with the law, and he plead guilty to said law. I hate to say this, but as a law junkie Cotner got off on a technicality of the 4th amendment meaning that his due process was violated.

The short version of this long version is that his guilty plea was vacated and not allowed to stand because of the fact that previous case law would have vacated his plea based on circumstances involved. Now, had the judge presiding the case (elected judge remember that), done his job he would have recognize this simple technicality and corrected it or rather deferred to the prosecution to correct their case if they wished it to proceed.

In short, had due process been followed Cotner on technical details could have been prosecuted properly and convicted in violation of Indiana law. Or course technically in second review chances are high that a reversal would occurred anyway based on the Griswold decision, but the short long story is that a competent and smart circuit Judge would have caught these facts.

So why would a Judge ignore the duty that is appointed to him when he/she takes a bench? Records are sparse for back in 65 but who knows, perhaps the Judge in Jasper County was facing an election upcoming and getting a conviction with the Cotner case could have given him some ammo towards said election?

So that bring it back to the original point of the diary, that Elections matter. At a local level and at a federal level. Here in Indiana most appointee spots for the Judiciary at both state and local are around 10 years but in your state and local level that may vary. So very often choices made decades in the past can have deep ramifications in the present. And this is what we are presented this year at the federal level really. We are looking at least one appointee at the federal level in the next four years, perhaps even two.

If Mitt gets in office, you can damn sure that the current conservative libertarian leaning court will get another appointee that will strengthen that even further. If Obama is in office however, we have a chance at reversing that conservative stronghold in the Judiciary system.

At least in most state courts, the appointee is for a set term. Granted here in Indiana its merited in decade lengths, but at the Federal level however, its for life...and life matters...big time.

I hope the diary encourages you to look at your state Judiciary, it is often an overlooked part of our civic system and government. However it is an integral part of it that can have long lasting impacts both in policy and implementation of said policy.

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