Dead Letter
Indiana Code article 35-36 provides:
In any criminal action, either the defendant or the state is entitled as a substantive right to a preemptory change of venue from the judge without specifically stating the reason. The defendant or the state may obtain a change of judge under this section by motion filed in a manner and within the time limitations as specified in the Indiana Rules of Criminal Procedure. Each party is entitled to only one (1) change of judge under this section.
But see State ex rel. Jeffries v. Lawrence Circuit Court (Ind. 1984) and State ex rel. Gaston v. Gibson Circuit Court (Ind. 1984) (holding that this statute conflicts with one of the rules of criminal procedure adopted by the Indiana Supreme Court and is therefore of no force and effect), and Justice Hunter’s dissent in Gaston:
This Court has long recognized that a change of venue or a change of judge safeguards the constitutional right to a fair trial. State ex rel. Fox v. LaPorte Circuit Court, (1956) 236 Ind. 69, 138 N.E.2d 875; State ex rel. Young v. Niblack, (1951) 229 Ind. 509, 99 N.E.2d 252. It is axiomatic that a person has a right to a trial as free from the effects of bias and prejudice as is possible. The evils of bias and prejudice are all the more acute in criminal cases, cases that are often given extensive coverage by the local media. A change of venue helps give a criminal defendant a fresh start by giving him a different judge in an area where jurors may be less exposed to the facts of the case.
I believe the majority holding creates a serious constitutional anomaly relating to a change of venue. Under this holding a person has more protection from bias and prejudice in a civil case than in a criminal one, since in civil cases the change is mandatory while in criminal cases it is discretionary. At the very least the protection offered in criminal cases should be equal to that offered in civil ones. The legislature attempted to make it equal by enacting Ind. Code § 35-36-6-1(c), which had the effect of making the change mandatory in criminal cases. The legislature was dealing with the substantive right to a change, and nothing more. Our lawmakers were not attempting to set forth any standards for the method and time of a change, areas that are admittedly controlled by our rules. State ex rel. Blood v. Gibson Circuit Court, (1959) 239 Ind. 394, 157 N.E.2d 475. The conflict here concerns, as the majority correctly points out, “whether or not a change of judge is mandatory.” The majority erred when it designated this conflict as one of procedure rather than one of substantive law. The conflict is not with how a change of judge is granted; it is with whether it should be granted at all. This is a question of substantive law, controlled by the legislature.
In short, I believe the statute in question here mandates a change of venue, and it was passed to help assure the criminal defendant receives the fair trial guaranteed by the constitution. I do not believe this statute can — or should be — ignored. I therefore dissent to the majority opinion.
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