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Indiana Supreme Court Argument Preview: Week of April 20, 2009
Posted in Litigation

On Thursday, April 23, the Indiana Supreme Court will hear the only oral argument scheduled for this week - Carter v. Indiana.

This case arises from the conviction of Che B. Carter of attempted murder and other offenses committed in 1990.  Carter was originally convicted in 1991 and sentenced to an aggregate sentence of 90 years' imprisonment.

After three appeals to the Indiana Court of Appeals, the Marion Superior Court in 2008 denied Carter's request for post-conviction relief.  Carter's petition argued that his appellate counsel was ineffective for failing to argue that the jury was erroneously instructed on the elements of attempted murder - i.e., the jury was not instructed that he must have had the specific intent to kill the victim.  The post-conviction court denied the petition on the basis that the scope of a proper jury instruction was an issue "in flux" at the time Carter's appellate counsel filed the brief.

The Indiana Court of Appeals reversed, in a 2-1 opinion, holding that (1) when a relevant area of law is "in flux," appellate counsel is obligated to make the argument and preserve the issue; and (2) Carter was prejudiced by his appellate counsel's failure to make the argument because the jury instruction, as given, was "fundamentally erroneous."  Carter v. State, 898 N.E.2d 315 (Ind. Ct. App. 2008) (see the Indiana Court of Appeals' opinion here). 

The Indiana Supreme Court has granted transfer of the case, vacating the Court of Appeals' ruling.  The argument will be webcast.

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