Thursday, July 16, 2009

Okaaaay, We Got Felons Covered!

Major kudos to Andy Gammill at the Star for flagging the "felon removal statute," which is in the part of the Indiana Code that deals with governmental opera........tjakj;alklz. Sorry my face fell into my keyboard. If you've read Title 5, you'll know why. It's kind of like reading Waiting for Godot if Beckett had tried even harder to avoid a plot.

Anyway, any "public officer," (person elected or appointed, who holds any state, county, township, city, or town office) convicted of a felony during the public officer's term shall be removed from office by operation of law when:

(A) in a jury trial, a jury publicly announces a verdict against the person for a felony;

(B) in a bench trial, the court publicly announces a verdict against the person for a felony; or

(C) in a guilty plea hearing, the person pleads guilty or nolo contendere to a felony.

If the conviction is overturned or vacated, the official gets reinstated (and whoever was serving in the breach gets the boot!).

But here's where it gets interesting, and you can see how politically-charged some court's rulings and prosecutor's actions can get.

Two ways a felony conviction can disappear are when either:

(1) A person has committed a D felony, but the Judge enters a conviction of A misdemeanor, provided the person does not have such a prior conversion (from D felony to misdemeanor) within the past three years or the offense is not for domestic violence of child pornography; or

(2) A Judge enters a conviction as a Class D felony with conditions. If these conditions, one of which must be include no new felonies, are met during a term that can last up to three years, the D felony is knocked down to a Class A misdemeanor. The prosecutor must agree to this, however.

The statute provides that the automatic removal does (follow this closely now) "not apply to for a felony other than a felony arising out of an action taken in the public officer's official capacity, reduced to a Class A misdemeanor under IC 35-50-2-7 (the judge sentence reduction part) or IC 35-38-1-1.5 (the felony probation part).

In other words, if you commit breach of public trust offense, the latter can't be done. Otherwise, it can...but what makes no sense is if you are given "felony removal probation," at the start of the term with conditions, you HAVE a felony, which means automatic removal. Then, after conditions are felony conviction, which ostensibly means reinstatement, provided the term of your office hasn't expired.

Can the General Assembly have meant to give a judge and prosecutor this power? To have someone resign in disgrace to get reinstatement by completing some conditions? Maybe they just trusted the no prosecutor and judge would agree.

But the short of it is, it appears that even if Doris Minton-McNeil is convicted, it's not a foregone conclusion she loses her office.


1 comment:

Unknown said...

Consider Lawrence Township Trustee Mike Hobbs case. Very relevant here I think.