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.
II. 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. …