Media Fails to Expose the Attorney General’s Hypocrisy

“A hypocrite is the kind of politician who would cut down a redwood tree, then mount the stump and make a speech for conservation.” 

Adlai Stevenson

Indiana Attorney General Greg Zoeller was not happy when the Indiana Supreme Court issued their opinion in the case of the Elkhart 4. In a media interview about the court ruling Zoeller said the following,

“Legislature – and not the courts – is the proper forum for changing our statutes.”

Media outlets like the Indianapolis Star and the venerable Indiana Law Blog, published Mr. Zoeller’s quote. In publishing the quotes these media outlets never challenged the hypocrisy of the Attorney General’s words.

The quote Mr. Zoeller gave implies that he believes that the only way statutes should be changed is through the Legislature. This is a valid opinion (one we do not share). This is also a popular opinion amongst many in society, especially right leaning voters (Mr. Zoeller’s base).

Mr. Zoeller’s quote also very clearly expresses his opinion on the Elkhart 4 case, ‘the Legislature passed a felony murder law – that law was rightly used to convict the Elkhart 4 – The Indiana Supreme Court is going against the will of the Legislature by overturning the convictions of Blake Layman, Levi Sparks and Anthony Sharp.’

Therein lies the reason for Mr. Zoeller’s hypocrisy.

It was not the Indiana Legislature that made the felony murder law relevant in the case of the Elkhart 4 (charging murder when a non-felon kills one of the perpetrators). It was in-fact the Indiana Supreme Court that made such charges possible in the 1999 decision in the case Palmer v. State.

There is wide acceptance that the felony murder law as written would not apply to the Elkhart 4.

Indiana State Representative Ryan Dvorak stated in an interview “If you actually read the statute, the language of the statute probably would not apply to the kids in this case,”

Law Professor Joel M. Schumm in a brief argued “Indiana’s felony murder and accomplice liability statutes do not permit a conviction where a third-party not involved” (read the brief here LaymanAmicusIndianaPublicDefendersCouncil)

Indiana Supreme Court Justice Massa “Counsel for the Appellant is arguing that we ought to consture the statute according to its plain meaning, ‘kills’ means ‘kills’ and if the legislature wanted it to be broader then they should use language like ‘contributes to the death’”

But the state . . . including the office of the Attorney General . . . has continued to argue that the Indiana felony murder law does apply to the Elkhart 4. Why can the state do this when it is obvious the wording of the law means the law is not applicable in this case?   Well in 1999 the Indiana Supreme Court, in a 3 to 2 decision, expanded the Indiana felony murder law to include when a co-accused is killed by a third party.

The 2 justices who voted not to expand the law based their thoughts on the very simple notion that new definition of the felony murder law was contrary to the way the state legislature wrote the law. The dissent stated,

Our felony murder statute provides: “A person who … kills another human being while committing or attempting to commit… kidnaping … commits murder, a felony.” Ind.Code § 35-42-1-1. Palmer here did not kill another human being; his co-perpetrator was killed by a law enforcement official. Under the terms of the felony murder statute, Palmer is not guilty of felony murder.

Ryan Dvorak**, Joel Schumm*** and Justice Massa**** all agree that it was the Indiana Supreme Court in the Palmer ruling that expanded the definition of felony murder in Indiana. It was not the Indiana Legislature.

So now Greg Zoeller . . .the ‘principled’ politician is fighting the Elkhart 4 ruling because it does not represent the will of the Legislature. Mr. Zoeller is doing this by defending and promoting Palmer, an interpretation of the felony murder statute crafted not by the Legislature, but by the court.

Mr. Zoeller is not even trying to hide this hypocrisy. In his recent brief asking the Indiana Supreme Court to reconsider the Elkhart 4 case the lawyers from the Attorney General’s office keep suggesting that the recent ruling goes against the “intent of the legislature as applied in case law.” (read brief here – State Asks for Re-hearing)

Mr. Zoeller seems to believe it is OK for the court to change a law only if the new interpretation is acceptable to his political leanings. If the court interprets (or re-interprets) a law in a way Mr. Zoeller does not approve he then goes after the court with statements like,

“Legislature – and not the courts – is the proper forum for changing our statutes.”

Mr. Zoeller’s statement on September 18, 2015 was hypocritical. Reporters like Kristine Guerra of the Indianapolis Star and the Indiana Law Blog have given Mr. Zoeller a free ride by refusing to call him on this hypocrisy. Why are they not asking Mr. Zoeller where he was in 1999 and why he was not protesting the Supreme Court decision in Palmer, which re-interpreted the felony murder law?  If Mr. Zoeller truly believed his statement then the Palmer ruling would be just as offensive to him as the Elkhart 4 ruling seems to be.

END NOTES

** In an interview with WSBT Dvorak points to rulings like Palmer as the reason why the law applied to the Elkhart 4.

*** Shumm goes into great detail in the briefs filed on behalf of the Indiana Public Defender Council — LaymanAmicusIndianaPublicDefendersCouncil

**** In minute 26:58 of the Elkhart 4 hearing before the Indiana Supreme Court the state lawyer argued that the “language of the statute is clear”.  Justice Massa interrupted the lawyer and challenged him saying,

“ Well it’s clear when read in conjunction with our holding in Palmer. I think Counsel for the Appellant {Elkhart 4} is arguing that we ought to construe the statute according to its plain meaning, ‘kills’ means ‘kills’ and if the legislature wanted it to be broader then they should use language like ‘contributes to the death’”.