Tuesday, February 18, 2014

Mother Shot at Day Care Had Filed to Remove Her Case From "Lazy Judge"; Claimed Judge Retaliated Against Her

The weekend before last, I was contacted by a potential client, Shirley (Talia) Justice,  who wanted to do a Rule 53.1 lazy judge praecipe (often erroneously called a "motion") to remove Marion County Judge Patrick McCarty from her case.  She had had a modification of custody hearing in November,  Nearly three months had passed and there was no ruling.  I told her because of Judge McCarty's role in trying to get me disciplined for sending out a letter attempting to educate Marion County judges on what procedure they were supposed to follow at the close of a civil forfeiture case (a determination of law enforcement costs with the balance going to the Common School Fund), I could not represent her.

The first thing on Monday, February 10, 2014, Ms. Justice filed, pro se, a Rule 53.1 lazy judge praecipe to remove Judge McCarty.  The role of the Clerk's employee, who is embedded in the judge's office, is ministerial only - verify that there had been no ruling since the motion was filed or hearing held and that over 30 days had passed.  If those facts are present on the docket, the clerk certifies it to the state court administrator to order the judge removed and a special judge appointed.

Instead of following that procedure, someone in the office tipped off the judge who put together an order that was entered on the docket ahead of the lazy judge praecipe.  In March of 2009, Ms. Justice had been awarded primary physical custody of her child with legal custody being shared.  This newly entered order though drastically changed the custody situation.  Father was awarded sole legal and physical custody of the minor child and the mother was denied any additional parenting time.  The entry from the docket is below:
Order Modifying Custody, Parenting Time and Child Support: Father shall have sole legal and physical custody of [minor child.]. Specific parenting time set out in the Order; Mother shall not have the opportunity for additional parenting time. Mother shall have no overnight parenting time. Mother shall not allow any male to be present during her parenting time, except at public places. Kathy Thornton (paternal grandmother) shall serve as temporary custodian in the event of incapacity or death of Father. Mother to pay $127 per week in support effective Nov 8, 2013. Father to provide health insurance; Father to pay 1st $568 of uninsured expenses and any remaining expenses split 50-50. Father may claim child for tax purposes. Mother to pay $1,454 in attorney fees or it may be reduced to judgment. Copies of order mailed. 
Ms. Justice contacted me and complained about her lazy judge praecipe being "denied" and Judge McCarty's order that she felt was retaliatory.  She again asked me to represent her but I told her I couldn't.  I instead told her to notify the State Court Administrator and let them know what happened.  To the credit of the people in that office, the case was removed from Judge McCarty:
Order Received from the Indiana Supreme Court
Accordingly, submission of this case is withdrawn from JUDGE Patrick L. McCarty effective as of the 8.20 a,m. February 10, 2014. This matter will be submitted to the Indiana Supreme Court for appointment of a special Judge or such other action deemed appropriate by the the Court. In accordance with Ind. Trial Rule 53.1(E) you must enter this determination in the Chronological Case Summary of the case and notify, in writing. the judge and all parties of record in the proceeding.    
Order Signed:  02/13/2014
The last contact from Ms. Justice came last Friday when she asked me the effect of the Supreme Court's action.  I told her it wasn't clear, but it should be that the order entered by Judge McCarty is vacated.  The Supreme Court order, however, didn't address that issue.

Unfortunately, the story doesn't have a happy ending.  USA Today reports:
A woman was in critical condition Tuesday after she was shot multiple times in the parking lot of a day care center, according to police.   
None of the 17 children at the Eagle View KinderCare Learning Center were injured.   
The victim, Shirley Justice, 31, was able to tell police that her ex-husband, Christopher Justice, 33, was the person who shot her.   
Police are looking for Christopher Justice, described as a black male about 6' 1" and weighing 180 pounds. He is believed to be driving a black Ford Fusion with an "In God We Trust" license plate.   
Initial reports indicated Shirley Justice sustained multiple gunshot wounds in her chest area, but was talking to medics while in en route to the hospital at 7:45 a.m.   
The shooting occurred about 7:20 a.m. at the center located in a business and commercial area. The victim was found on the ground in the parking lot by a center manager, police said.

9 comments:

Gary R. Welsh said...

This is so sad. I hope someone wakes up to what is going on in this county. The Judicial Qualifications Commission can't say they weren't warned about this problem.

Indy Rob said...

Very very bad situation caused in no small part by the Judge. If the judge had any sense of decency or empathy, he (Patrick Jackson) would pay for the mother's hospital and medical bills, and actually go back and re-evaluate his decisions and responsibilities in the court case. The judge decided that in spite of the mother claiming her ex-husband abused her and child, and that the mother claimed that her husband presented physical danger to herself, that her husband would be the best parent for the child. Then the husband shots his ex-wife multiple times (guess he was not that much of a danger, huh Judge!).
Distribing that the judge took his time about making a decision and that when he did, it appeared more to punish the mother for her legal actions in the pending case.
I hope that the judge sleeps well tonight.

MikeC said...

I don't think anything nefarious took place, Paul.

Looks like BC heard the evidence and issued the findings which were approved by McCarty, the presiding judge (as they almost always are).

They were issued the same day as her 53.2 praecipe.

Her praecipe, by operation of TR 53.1 must be sent by the Clerk to the Exec Dir of the State Court Administration who makes a determination as to whether the decision was delayed by consent or order. It apparently wasn't, as four days later the Exec Dir. apparently filed Notice with the clerk per 53.1(E)(2) and yanked the case, thus voiding the latest custody order.

c8947edc-99b4-11e3-9e41-000bcdcb5194 said...


Paul Ogden,
1) Obviously you are out to retaliate against Judge McCarty because he reported your unethical behavior and you are up on charges before the Disciplinary Commission.
2) Despite this clear conflict, you told this woman, without even knowing her problematic background that caused her to lose custody, that the order "Should be vacated."
3) After talking to you she refused to return the child after a visitation, which triggered this tragedy.
4) Do you acknowledge that you have some responsibility here?

The fact that she called you -- of all people -- is quite a coincidence, isn't it?

Indy Rob -- how is this the Judge's fault? The judge gave custody to the father. The child is unharmed. A reasonable person would conclude that the attorney who told the woman the order was probably vacated (without knowing her background and that all she would hear was "He doesn't have custody") is clearly more at fault than the judge here.

Paul K. Ogden said...
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Paul K. Ogden said...
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Paul K. Ogden said...

MikeC. According to Ms. Justice, the modification hearing was presided over by Judge McCarty who issued the order. It wasn't a magistrate with him approving the magistrate's findings. It would be a heck of a coincidence that after more than 90 days that an order was being prepared and entered the same minute that the lazy judge praecipe was being faxed to the court, but coincidences happen. This, however, is not the first time I've heard of issues with Judge McCarty and orders being entered when notified of lazy judge motions.

Paul K. Ogden said...

c8947,

1. you mean that "unethical behavior" of writing a letter to the Marion County judges telling them the procedure that they're supposed to follow when disposing of civil forfeiture proceeds, which letter was copied to the prosecutor, the Attorney General and Public Safety Director, the very people involved in the issue? You mean that educational effort that is no different from other educational efforts that take place all the time and which are not even close to being an ethical violations?

2. You don't understand how the lazy judge rule works. The minute she files the lazy judge praecipe, the judge is off the case. He had no jurisdiction to enter an order.

3. I never talked to her about this. I never encouraged her to not follow a court order. Of course, Judge McCarty's order was not valid. But the formal setting aside of that order is something a court would do.

4. Responsibility for what?

I have no idea why she called me. She clearly didn't have any knowledge about Judge McCarty complaining to the DC about my letter. eople call me all the time though because they google and see my blog and know I take on tough cases.

c8947edc-99b4-11e3-9e41-000bcdcb5194 said...

I mean the unethical behavior that the Disciplinary commission took seriously enough to hold 2 days of hearings about. You are clearly out to discredit Judge McCarty because he reported your behavior. Given the events of February 14 -- which you contributed to, by your own admission, told this woman "...it wasn't clear, but it should be that the order entered by Judge McCarty is vacated." You don't seem to have learned your lesson yet. It's still awfully odd that this woman called you -- of all people. I hope the disciplinary commission gets wind of this as well. (There are people who have screen grabs of your admission of what you told her, so changing it now won't make any difference.)