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2014 STUDENT EDITION INCLUDING OUTLINE and DISCUSSION TOPICS John R Berger CHANGE OF VENUE CHANGE OF VENUE A LAW STUDIES TEXTBOOK INCLUDING THE TRUE STORY OF AN INDIANA TRIAL FOR TRIPLE MURDER 2014 STUDENT EDITION INCLUDING OUTLINE AND DISCUSSION TOPICS John R Berger 1 CHANGE OF VENUE Copyright 2008 by John R. Berger. [email protected] All rights reserved. This book or parts thereof may not be reproduced in any form without permission of the author. Published 2014 by Lake James Press 20 Lane 200H Lake James Angola IN 46703 NOTE: The page references below may not be correct due to scribd formatting. However, by downloading and selecting DOC, it should download in MS Works, the page references should be correct, and the document can be saved, edited, selected and printed. The entire materials in this textbook are available as a Survey of Law course in MS PowerPoint with narration as a free MOOC (Massive Open Online Course). To access the course go to or click on the following link http://www.coursesites.com/s/_LAW-INTRODUCTION Then click on Content. Then click on Change of Venue PowerPoint. Then click on Browse as a Guest to view and listen to the entire course. THE AUTHOR: John R. Berger is a graduate of Harvard Law School (JD 1953), Hillsdale College (BS Summa Cum Laude 1950), and a retired Circuit Court Judge and Professor of Law, Tri-State University. He is the author of a non fiction novel, The Red Gas Can, based upon the triple murder trial described in Change of Venue, and his autobiography, The Bubbles Rise. These books including Change of Venue are available in paperback at Amazon. JOHN R. BERGER JANUARY 1, 2014 2 CHANGE OF VENUE In memory of Susanna Ellen 3 CHANGE OF VENUE 4 CHANGE OF VENUE Author’s Note This is a textbook to be used in introductory legal studies courses. The book contains a student outline and discussion topics including sources of law, constitutional development, state and federal courts, criminal and juvenile law and procedure, and an introduction to civil, probate, domestic relations, labor, antitrust, and administrative law. Actual Indiana statutes are reproduced to facilitate and teach research. Problems, Questions, and a Test Bank, all with answers, are included. A primary emphasis of this book is upon criminal law, criminal and trial procedure, and constitutional law. An actual murder case over which I presided as the trial judge is set forth beginning at the scene of the crime and continuing through the investigation, pretrial procedure, trial, appeal, and Supreme Court opinion. Even though portions of this book rely upon Indiana law, most state criminal law and procedure are similar, and I think that the materials in this book would be appropriate as an introductory course for legal studies students generally. The facts set forth in these materials are based upon actual facts. They are taken from trial documents, the official trial transcript, interviews with the persons directly concerned including investigating officers, jurors and attorneys, research and my memory. I have simplified or modified some of the materials but the basic facts are accurate. I have changed the names of the victims, and some non police witnesses to provide privacy. This is the tragic story of William, Elizabeth Ann and Jenny Harold who were brutally murdered in the early morning of January 20, 1974, and of the trial of the accused, David James Roberts. Interwoven are important legal and constitutional issues. This is also my story as a young man, student, lawyer and judge. I was the judge for the Roberts trial and it was the first murder trial involving the death penalty over which I presided. I have included Notes at the end of the book which set forth additional or tangential facts which the reader may find interesting and informative. Follow the criminal proceedings, read the trial evidence as it unfolds, assume you were on the jury, and decide the guilt or innocence of David James Roberts. Will you agree with the jury decision? John R. Berger Angola, Indiana January 1, 2014. 5 CHANGE OF VENUE 6 CHANGE OF VENUE STEUBEN COUNTY COURTHOUSE AND CIVIL WAR MONUMENT Angola, Indiana 7 CHANGE OF VENUE JOHN R. BERGER Judge, Steuben Circuit Court January 1, 1971 8 CHANGE OF VENUE 9 CHANGE OF VENUE STATE OF INDIANA SUPREME COURT RANDALL T. SHEPARD, CHIEF JUSTICE 304 STATE HOUSE INDIANAPOLIS 46204-2798 March 9, 2010 Hon. John R. Berger 20 LN 200H LK James Angola, Indiana 46703 Dear Judge Berger: Thanks so much for sending along a copy of your book “Change of Venue”, which I have enjoyed. It is a gripping tale. When I am done, I plan to place the book in the permanent collection of the Supreme Court Library, so that others will have an opportunity to read it. Congratulations on the enormous effort the book represents (and, of course, on your work decades ago in the events it recounts). Thank you for your many contributions to the Indiana bench and bar. Sincerely, Randy Shepard Randall T. Shepard Chief Justice of Indiana 10 CHANGE OF VENUE 11 CHANGE OF VENUE CONTENTS PROLOGUE 17 PART ONE: STEUBEN COUNTY AND THE CIRCUIT COURT 1. Steuben County 25 2. Steuben County Courthouse 27 3. The Judge 29 4. The Circuit Court 33 PART TWO: THE TRIAL 5. The Grand Jury 37 6. Preliminary Hearing 40 7. Bail Hearing 42 8. Change of Venue Hearing 44 9. Arraignment 46 10. Omnibus Hearing 48 11. Jury Selection-1 51 12. Jury Selection-2 56 13. The Trial-Preliminary Instructions 58 14. The Trial-The State's Evidence Day 1 61 15. The Trial-The State's Evidence Day 2 77 16. The Trial-The State's Evidence Day 3 86 17. The Trial-The State's Evidence Day 4 93 18. The Trial-The State's Evidence Day 5 105 19. The Trial-The Defense Evidence Day 6 112 20. The Trial-Closing Statements and Final Instructions 114 21. The Trial-Duty of Jury 120 22. The Trial-Jury Deliberations 124 23. The Trial-The Verdicts 128 24. Indianapolis, Indiana 130 25. Roberts' Criminal Record 131 26. The Trial Phase Two 133 PART THREE: THE APPEAL 27. Motion to Correct Errors 143 28. Judicial Review 147 29. Cruel and Unusual Punishments 149 30. Indiana Supreme Court Decision 152 31. Northwest of Indianapolis 154 32. America’s Most Wanted Television Show 156 EPILOGUE 159 12 CHANGE OF VENUE AUTHOR'S COMMENTS 161 BIBLIOGRAPHY 167 NOTES 169 APPENDIX: STUDENT OUTLINE AND DISCUSSION TOPICS 188 ADDITIONAL READINGS 194 and 305 STATE AND FEDERAL COURTS 198 THE CHEROKEES 200 DIVISIONS OF AN INDIANA CIRCUIT COURT 201 ADDITIONAL BIBLIOGRAPHY 206 UNITED STATES CONSTITUTION 207 INDIANA CONSTITUTION: http://www.in.gov/legislative/ic/code/const/ INDIANA CODE PROVISIONS AND ADDITIONAL MATERIALS: Indiana Offenses and Sentences 213 IC 35-42 Offenses Against the Person 215 IC 35-43 Offenses Against Property 230 IC 35-50 Sentences: General Provisions 242 IC 35-50 Death and Felony Sentences 243 IC 35-50-2-9 Death Penalty Sentencing Procedure 245 IC 35-50-3 Misdemeanor Sentences 249 IC 35-33 Arrest 250 IC 35-33 Arrest Warrants 254 IC 12-26 Involuntary Detention of Mentally Ill 255 IC 35-33 Search and Seizure 257 IC 35-33 Probable Cause-Initial Hearing 260 IC 35-33 Bail 263 IC 35-44-3-6 Failure to Appear 266 IC 35-41-2 Basis of Liability: Aiding-Intoxication-Attempt-Conspiracy 267 IC 35-41-3 Defenses: Self defense-Intoxication-Insanity- Mistake-Duress-Entrapment 268 IC 35-36-2 Affirmative Insanity Defense 273 IC 35-41-4 Burden of Proof and Bars to Prosecution 276 Jury Verdicts for Murder 277 Indiana Criminal Procedure Outline 278 IC 35-41 Definitions 280 IC 31-37 Juvenile Law 281 Indiana Juvenile Procedure and Waiver Checklist 293 Federal Administrative Agencies 295 Labor Law 297 Antitrust Law 299 DNA Statutes 300 The Right to Bear Arms Article 305 Sterilization Petition 309 Questions 309 Problems 311 Test Bank 314 Questions with Answers 326 Problems with Answers 330 Test Bank with Answers 334 NOTE: The entire Indiana Code can be found at http://iga.in.gov/legislative/laws/2014/ic/ The Code has 36 Titles. Title 33: Courts and Court Officers. Title 34: Civil Law and Procedure. Title 35: Criminal Law and Procedure. Title 9: Motor Vehicles Operation. Title 31: Juvenile Law. A citation to the code is IC 35-41-3-16 (Title 35-Article 41-Chapter 3-Section 16). 13 CHANGE OF VENUE ªWhoever intentionally takes the life of another with malice aforethought shall be guilty of the crime of murder.º The definition of murder under English common law. 14 CHANGE OF VENUE 15 CHANGE OF VENUE PROLOGUE New Whiteland, Indiana It was about 4:30 a.m. on a cold and dark Sunday morning, January 20, 1974, in New Whiteland, a small middle class white residential community located in Johnson County fourteen miles south of Indianapolis, Indiana, when a passing car noticed smoke arising from the small suburban ranch home of William and Elizabeth Ann Harold located on 915 Pine Drive. Within five minutes the local volunteer fire department had arrived. Upon entering the front door, the firefighters were met by a surge of fire coming from the middle section of the house. The house was fairly airtight and therefore the fire had not spread to the front and was mostly contained to a small den or TV room in the middle of the house. In ten minutes the fire was brought under control and extinguished. When the firefighters first arrived they observed through a back bedroom window a baby bed.
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