court of appeals dudley, bailey

2011 Batesville High School graduate Alex Dudley (left), now an attorney, served as the bailiff at Appeals on Wheels. After the one-hour presentation, he conferred with Indiana Court of Appeals Judge Mark Bailey, who was raised on a Decatur County family farm. Bailey also is a University of Indianapolis adjunct professor.

Just before the start of Appeals on Wheels – when three Indiana Court of Appeals judges heard oral argument about a case outside of their usual Indianapolis courtroom – close to 20 adult citizens, around 100 students, a handful of teachers and one student in the light booth waited in the Batesville High School auditorium.

Officials believed it was the first visit to the school by the state’s second highest court. However, in order to educate the public, this argument marked the court’s 35th Appeals on Wheels event in 2019.

It was 2011 BHS graduate Alex Dudley’s second time as bailiff after a test run at the usual court location, the Indiana Statehouse. Before the proceeding, he was checking out the courtroom layout on the stage. Judges were going to sit at a table at the stage’s rear facing the audience. Defense and prosecution tables in the foreground would have attorneys’ backs to spectators. Dudley would sit at a table to the left facing the judges and opposite Ashley Reed, the court’s director of communications, at her own table. When attorneys spoke to judges, the audience could see their backs, not faces.

Principal Andy Allen spelled out the rules at noon Oct. 30. “All phones are to be powered off. ... No hats or hoods.” No photos or recordings unless prior permission has been received.”

“All rise!” the bailiff ordered.

After the three judges took their seats, Chief Judge Edward Najam Jr. said, “This is an appeal from the jury trial held in Washington County Circuit Court in Salem.”

The court provided a synopsis of Joshua Risinger vs. State of Indiana. “Risinger appeals his conviction for murder. He challenges the trial court’s decision to admit three police interrogations of Risinger.” The defendant contends that his statements and waiver of Miranda rights were involuntary and that police failed to cease the interrogations after he invoked his Miranda rights. “Risinger also challenges the trial court’s decision to allow a forensic psychiatrist to testify that Indiana’s legal standard for insanity is whether a defendant can appreciate the legal wrongfulness of his actions. Risinger contends that the legal standard is moral wrongfulness.”

The man was accused of setting his Salem mobile home on fire in March 2017 while a handicapped man, Jeffery Givan, 62, was inside, according to media sources. Last November, a jury found the 29-year-old guilty, but mentally ill. He was sentenced to 60 years in prison.

Attorney Stacy Uliana, Bargersville, representing Risinger, said, “’I’m done talking.’ This is what Joshua Risinger said 19 minutes into his (first) interrogation. In fact, he said it twice. He also said, ‘I have nothing else to say.’” But police detectives tried to get him to change his mind and confess.

”Mr. Risinger was overtly psychotic. The state violated his constitutional rights by failing to grant his motion to suppress.”

Najam asked her to address confessions made during interviews.

The attorney pointed out Risinger was handcuffed for about three and a half hours, one and a half while waiting for three detectives to arrive and through the initial interrogation. “He was read his Miranda rights. In those rights was the right to remain silent ... and stop questioning at any time.”

When his house was on fire, a police officer stopped Risinger on a highway. He was carrying a suitcase filled with “water, pickled bologna, random things like a Bible.”

Judge Cale Bradford questioned, “And some of the victim’s possessions?” Yes, Uliana admitted. “He had it packed” before the fire began.

Najam noted that Risinger set forth an insane defense. The two psychiatrists were split in the their opinions, the attorney said. “One found him sane, one insane.”

Najam, who was elected IU student body president before graduating from Harvard Law School, asked Uliana whether the first 19 minutes of questioning were admissable in court before he said, “I’m done talking.” Her answer was yes.

The chief judge wondered how many times altogether during the three interrogations did the defendant tell officers he wanted to quit. Seven in the first hour and a half, the attorney counted. During the second and third interviews, “when he said, ‘I’m done talking,’ then they respected it.”

Najam summed up, “But the cat was out of the bag with the first interrogation.”

The attorney pointed out when police asked Risinger why he wanted to stop answering questions, he said, “’Because you’re pestering me.’ They lied to him. ‘Your house didn’t burn down that much ....”

Najam, probably remembering the trial transcript, said the detectives tried tricking Risinger into thinking Givan was still alive, saying it’s a “not uncommon” tactic detectives use to get suspects to admit guilt.

She contended, “We all know under Miranda, police officers have to scrupulously honor the right to remain silent.”

Najam agreed that the Miranda vs. Arizona case decided when a defendant wished to remain silent, the interrogation must cease.

According to Uliana, “They tried to appeal to his sense of righteousness.” The chief judge figured that Risinger considered himself “an honest person, he wanted to tell the truth. Were objections raised during trial?” Yes.

Judge Mark Bailey grew philosophical. “We look to have fair trials, not perfect trials. If we conceded everything to you that you argued in your briefs, we’d also have (to consider) a rule called harmless error.” He asked if repeated questioning over Risinger’s objections was a harmless error.

Uliana said, “The state didn’t prove it was harmless in their brief. The state relied on this confession a lot.” During a PowerPoint presentation in the closing argument, the prosecutor used photos and quotes from Risinger’s confession. “Some of it was pretty gruesome. ... that is why this cannot be harmless. Two public defenders each filed a motion to suppress” the confession before the trial began.

Bradford said of the first 19 minutes of questioning, “It’s my understanding you claim that was not voluntarily made because of his mental health condition. It’s my understanding of the law, whether or not the confession is voluntary is based on the totality of the circumstances. Mental illness is just one thing for the court to consider. There’s a difference of opinion on the mental health of your client.”

Najam asked, “If you were to strip away all the confessions ... isn’t there a pretty strong circumstantial case here, too... many criminal cases rest entirely on circumstantial evidence,” which is sometimes stronger than direct evidence.

Uliana said there may be enough evidence to convict him, but questioned if jurors would agree beyond reasonable doubt.

When Bradford asked her about one psychiatrist’s testimony on the legal definition of wrongfulness, the attorney said Indiana’s standard is moral wrongfulness. She felt the expert confused jurors by bringing up legal wrongfulness. “No court has addressed what happens if an expert sets the wrong standard,” then closed this way: “A person can believe something is criminally wrong, but morally just.”

She wanted the judges to reverse the trial court finding and mandate a new trial.

Ian McLean, Crawfordsville, Office of the Indiana Attorney General Criminal Appeals Section supervising deputy attorney, represented the state. He said, “As we’ve just seen, when someone says, ‘I’m done talking,’ they don’t necessarily mean that.” McLean said during the first interrogation, the defendant lectured officers.

Bailey questioned, “How does that reflect on his mental health at the time?” The deputy attorney reported, “He was diagnosed as delusional. He tried to convince officers the victim started the fire with cigarettes. Then finally an appeal was made to his honesty. ... then Mr. Risinger begins to be honest.”

According to Bradford, “Detectives have to scrupulously honor a person’s request to stop talking. Would you agree?” Yes was McLean’s reply.

The judge continued, “He says, ‘I’m done talking.’ What’s vague about that? How is that subject to another interpretation? ... throughout this first interview, (Risinger said) ‘I’m done talking’ and they keep asking him questions. I’m at a loss, quite frankly,” why detectives didn’t stop questioning.

McLean argued language can be ambiguous. Detectives were talking to the suspect about his daughter. “He gets very upset with them. ‘I’m done talking’ and he lectures them. ‘We’re not here to talk about my family. We’re here to talk about the fire.’”

“Context is king.... he doesn’t necessarily mean he wants to terminate the police interview.” The attorney cited three case decisions he felt applied to this one.

Bradford asked McLean if there were factors that resulted in Risinger being handcuffed for so long. The attorney reported when a police officer found the suspect walking along the highway, he tried to pull away and the officer thought, “’I’d better cuff this guy.’”

During interrogations, “The officers were not coercive. They didn’t threaten him ... they addressed him in an interested, polite tone of voice.”

Bradford wondered if the three confessions were harmless. McLean admitted, “I don’t feel comfortable making an argument it would be a harmless error.” According to him, during the first interview, Risinger admitted, “’I lit the fire ... I took his cellphone to make sure he wouldn’t get out ...’”

It was time for Uliana’s 5 minutes of rebuttal, which she had reserved at the start. “The problem is they did not scrupulously honor Joshua Risinger’s request to stop talking. If you look at Miranda and Mosley ... that leads to a compelled interrogation. In other words, it’s involuntary.”

”Once a defendant unequivocally invokes his right to remain silent,” it’s up to police to honor that. “This is as clear as it gets.”

Najam asked if Risinger’s comments could have been misconstrued. Bailey speculated that Risinger meant he was done talking about his family, but not the incident.

The attorney said in later interviews, the defendant insisted, “’I’m done talking. Take me back to my cell.’ That’s clear – and they didn’t honor that.”

The chief judge announced, “That concludes oral arguments.” Within four months, an opinion will be published on www.courts.in.gov. It could affirm or reverse the lower court rulings in whole or part and may instruct the trial court about the next appropriate course of action. Risinger can appeal the decision to the Indiana Supreme Court, which may grant or deny transfer.

Najam thanked the two attorneys and their assistants for traveling to Batesville for Appeals on Wheels and also Allen and BHS social studies teacher Darrick Cox for preparing students. He recognized three spectators, state Sen. Jean Leising, Ripley Circuit Court Judge Ryan King and Franklin Circuit Court Judge Clay Kellerman.

Debbie Blank can be contacted at debbie.blank@batesvilleheraldtribune.com or 812-717-3113.