Dye was the “victim” in a case I’ve talked about a lot here on this blog, Tyrus Coleman v. State of Indiana. Dye’s conviction for Unlawful Possession of a Firearm by a Serious Violent Felon was based on the same tragic incident in 2007 on which Tyrus Coleman’s conviction for the Attempted Murder of Dye was based.

In rejecting Dye’s argument that his sentence is inappropriately harsh, the majority wrote:

The nature of Dye’s crime was not that of mere benign possession of a handgun. According to Dye, he was called by his son for assistance in a confrontation with two armed men who had previously robbed Dye at gunpoint. The result of the ensuing battle was the death of Dye’s son and Dye himself being shot twice. Had Dye simply contacted the authorities instead of seeking to address the situation himself, perhaps his son would still be alive. Moreover, the record indicates that Dye’s motives in coming to his son’s aid were not entirely noble, as the record indicates that he intended to rob at least one of the two armed men in retaliation for the earlier robbery. In light of this, it is worth noting that the facts of the incident would have, at the very least, supported a charge of attempted Class A felony robbery, for which Dye could have received a base sentence of up to fifty years of incarceration.

[Although I didn’t see the testimony at Dye’s trial, based on the testimony at Coleman’s trial this account of the incident appears slightly confused. Two men were involved in the earlier robbery, but Coleman wasn’t one of them, and only one of those two men were on Coleman’s property on the date of the incident. Furthermore, at the time of the incident on Coleman’s property only Dye, Dye’s son, and Coleman were armed.]

The Honorable Melissa May, who was born in Elkhart, Indiana (where this incident took place), dissented from the majority’s affirmation of Dye’s adjudication as an Habitual Offender, on the grounds that it was an improper double enhancement, since

Dye’s conviction of possession of a handgun by a serious violent felon (“SVF”) was premised on a 1998 conviction of attempted battery by means of a deadly weapon. His habitual offender adjudication rests on another 1998 conviction, of possession of a handgun within a thousand feet of a school, which arose out of the same incident as did the attempted battery conviction on which the SVF count was based.

Judge May believes

the majority’s result “contradict[s] the Rule of Lenity . . . and place[s] form over substance,” [citation omitted] to the extent it holds two offenses that are so related they could not be used together for an habitual offender enhancement are, at the same time, so unrelated that they may support a double enhancement in the form of an SVF count and an habitual offender enhancement.

For its part, the majority wrote:

Unless and until the Indiana Supreme Court holds that two distinct convictions arising out of the same res gestae [i.e., “things done,” meaning acts, words, and declarations that are so closely connected to the main fact or transaction as to be a part of it] cannot be used as they were here, we shall adhere to the general principle that double enhancement challenges only arise when the same conviction is used twice.

Judge May in a footnote quotes the Indiana Supreme Court to describe the Rule of Lenity: “It is a familiar principle that statutes which are criminal or penal in their nature or which are in derogation of a common-law right must be strictly construed,” and “where there is ambiguity it must be resolved against the penalty . . . .”

A logical and natural corollary of the Rule of Lenity is that constitutional and common-law rights should be liberally construed. Coincidentally, Judge May was in the majority in the Court of Appeals decision that would have freed, on Double Jeopardy grounds, Tyrus Coleman, whose use of deadly force on the tragic day in question was justified by his unalienable and statutory right to defend himself and others from what he reasonably believed to be Dye’s imminent commission of a forcible felony. Tragically, the Indiana Supreme Court didn’t see things her way.

The very fact that the presumably-rational Ninth Circuit judges found that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt should itself demonstrate to a rational mind that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Even the majority on the SCOTUS admitted that “Doubts about whether Smith is in fact guilty are understandable.” If those doubts are understandable, they’re reasonable.

A legal system worthy of respect would not limit the presumption of innocence to something we tell jurors they should think about, but would apply it across the board, in legislation, and in judicial opinions.

The dissenters essentially accuse the majority of Gratuitous Violence.

The “law” is exposed again as a cruel and ugly monster.

UPDATE: The Los Angeles Times reports:

Smith, contacted in Illinois where she has been living since she was allowed to leave her parole hold in California last year, broke down in tears at the news that she may have to return to prison.

“I did not kill my grandson. I won’t go back to prison. I can’t do that,” said Smith, who said she had not been told of the high-court ruling by her attorney or court officials.

According to a Los Angeles Times story from last year:

Citing her faith and her confidence that “there are people with consciences on the Supreme Court,” Smith says she firmly believes her ordeal is nearing an end and the high court won’t step in again to question the 9th Circuit judgment.

On other days, she is haunted by the darker scenario.

“I won’t go back to prison,” she vows, shaking her head with conviction. “I’ll take my own life first, but I won’t go back there.”

The facts in Brenda Moore v. State were not in dispute:

The defendant had consumed two tall cans of beer at her sister’s house on the evening of December 5, 2008. A friend of the defendant’s brother asked for a ride to visit a friend. The defendant explained to him that she could not drive because she had been drinking but that he could drive her car if he had a license. The brother’s friend then drove the defendant’s car with the defendant riding as a front seat passenger. When an Indianapolis Metropolitan Police Officer pulled over the car because the license plate light was not working, the officer determined that the driver did not have a valid driver’s license and that the defendant could not operate the vehicle because she was intoxicated.

She was convicted of Public Intoxication, which is defined by Indiana statute as being “in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance.” From the Supreme Court’s opinion:

Established precedent has long recognized that a person in a vehicle stopped along a highway is in a public place for purposes of the public intoxication statute.

. . .

The defendant’s principal argument is that her conviction “violates the spirit of the public intoxication statute, and the policy behind its enactment” because she caused no harm or annoyance and “adhered to the popular public service motto ‘Don’t drink and drive.'” She favors a policy that would “encourage persons who find themselves intoxicated to ride in a vehicle to a private place without fear of being prosecuted for a crime.”

Whether conduct proscribed by a criminal law should be excused under certain circumstances on grounds of public policy is a matter for legislative evaluation and statutory revision if appropriate. The judicial function is to apply the laws as enacted by the legislature. We decline the defendant’s request to reverse her conviction on public policy grounds.

(Citations omitted.)

But it was the court’s own “established precedent,” not the “laws as enacted by the legislature,” which supposedly “recognized” that a person inside a private vehicle is “in a public place.” And as the lone dissenter points out, other precedent and common sense supports a contrary conclusion. The majority offers no reason other than “because we said so” to justify its counter-intuitive insistence that a passenger inside of a closed private vehicle traveling along a highway is “in a public place” and should suffer criminal penalties merely because she’s intoxicated.

My prescription for what ails the Indiana Supreme Court and therefore the people of Indiana is a strong dose of Lysander Spooner:

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals ‑‑ let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor of natural right.

What recently changed my mind about these cases is the Indiana Supreme Court’s decision in Tyrus Coleman v. State (2011), and the utter failure of these cases to do Mr. Coleman (whom I represented at trial) any good. Now when I read Yeager the only significant thing about the case seems to me to be the fact that the defendant, Mr. Yeager, was an Enron executive.

The Indiana Supreme Court’s decision in Mr. Coleman’s case came less than a week after that court rendered its infamous decision in Barnes, which purports to abrogate the right of the people to reasonably resist unlawful police entry into their homes. I lament the fact that Barnes has gotten all the attention and public vilification, while the court’s disposal of Coleman has gotten none, even though both cases equally exude the pernicious implication that only police officers are entitled to use force to defend themselves or others and that the only allowable recourse of a man facing armed and dangerous men who are in the act of invading his property is to call the police.

In the wake of the political fallout over Barnes the Indiana Attorney General has put on his white hat and joined the chorus condemning Barnes:

I support a rehearing of the case to allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry. In our brief and argument to the Indiana Supreme Court last fall, my office did not advocate for the type of ruling the Court issued last week.

Here’s my response to that, borrowing from Eric Turkewitz: “Go shit in your white hat and pull it down over your ears.” Your office didn’t have to petition the Indiana Supreme Court for transfer after the Indiana Court of Appeals rendered its eminently reasonable decision that would have freed Tyrus Coleman — an innocent man — on the grounds of collateral estoppel, but it did.

And speaking of going above and beyond the call of duty, here are the principal considerations which normally govern the Indiana Supreme Court’s decision whether to grant transfer:

(1)     Conflict in Court of Appeals’ Decisions. The Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue.

(2)    Conflict with Supreme Court Decision. The Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important issue.

(3)    Conflict with Federal Appellate Decision. The Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals.

(4)    Undecided Question of Law. The Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.

(5)    Precedent in Need of Reconsideration. The Court of Appeals has correctly followed ruling precedent of the Supreme Court but such precedent is erroneous or in need of clarification or modification in some specific respect.

(6)    Significant Departure From Law or Practice. The Court of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.

You will search the Indiana Supreme Court’s published opinion in Coleman in vain for any new explication of the law of collateral estoppel, any explanation of how the Indiana Court of Appeals’ decision had “departed from accepted law or practice” (let alone “significantly”), or any hint of the above-listed “considerations” which normally govern whether the Indiana Supreme Court grants transfer. Even though the first jury in Coleman’s case had acquitted him of murder and hung on the attempted murder charge (which in a just world and a just legal system would establish reasonable doubt as to Mr. Coleman’s guilt on both charges), and even though there was nothing contrary to established law in the Court of Appeals’ decision, the “Justices” on the Indiana Supreme Court chose to condemn Mr. Coleman to 45 years in prison for doing something that I believe with every fiber of my being was completely justified.