Introduction
On November 14, 2023, the Court of Appeals of Indiana ruled against my deceased brother’s estate in Marion Superior Court Probation Department v. Trapuzzano. This case has been tied up in the Indiana court system for nearly eight years. While the November ruling is disappointing and disturbing for many reasons discussed below, the entire process has been eye opening and has revealed so many flaws with our justice system. This blog post is certainly the most important one I’ve ever written. It’s quite long, but I hope to share some knowledge with you, the reader. Despite its length, it only really scratches the surface in detailing the many years that my family has been battling in the court system. I hope you come away with knowledge about our broken justice system. I hope you come away with understanding of how the system is set up and rigged in favor of defendants when they are governmental bodies or employees. I hope you come to learn why and how we’ve gotten so far away from founding American principles. Lastly, I hope you are inspired to act to help make the system better.
My brother, Nathan Trapuzzano, was murdered while out for a morning walk in Indianapolis on April 1, 2014. Shortly after this time, my family and I learned that my brother’s murderer, Simeon Adams, had violated his probation 13 times before murdering my brother. As you might imagine, this was quite upsetting. We had many questions, the main one being “why hadn’t Simeon Adams been locked up prior to April 1?” Something was wrong. While Adams pulled the trigger and murdered my brother, it was appalling that he was even on the street to do so. The system in place to keep Adams, and violent criminals like him, off the streets had failed. So, my mother and sister-in-law filed a wrongful death suit to try and get to the bottom of this.
Rigged from the Beginning
In Indiana, the estate of a deceased victim has two years to file a wrongful death suit. That clock started ticking on April 1, 2014. It was initially hard to find a lawyer to take our case, as the old saying goes “don’t shit where you eat.” We knew that suing the probation department would take a lawyer with balls to stand up against the same system in which he works. Luckily, we found someone willing to take the case prior to the clock running out on us.
The initial proceedings of the case started slowly. I wish I could say that things started to get rolling after the initial slow period. I wish I could say that. However, this never happened. From 2017 to 2019, there was back and forth communication with the defendants being facilitated by our lawyer. My mother and sister-in-law would be presented questions and required to respond in a timely manner. After this…..silence. After having to very quickly answer, usually within a few weeks to about a month, there would be no response from the defendants. Frequently, months would pass and then we’d learn that the defendants had filed a motion asking the judge for more time. To my knowledge, these motions were granted 100% of the time without exception. As you can see, the game was and is rigged to frustrate plaintiffs and to drag out the pursuit of justice for as long as possible.
In October 2019, after months of no communication from our lawyer, we finally learned (only after sending an email asking for a status update on the case) that he did not “have the time to dedicate to keep this case moving towards justice.” Now, I am not a lawyer and so I can only imagine the energy and time it takes to put together detailed legal documents. Therefore, I have no issue with our lawyer stepping aside other than the bind it put us in to find a new one in a timely manner. Fortunately, we were able to find new representation and so the case moved forward.
We hit another bump in the road in August 2020. Our new attorney filed a motion with the judge presiding over our case to release records of Simeon Adams’s criminal history. This motion was denied. Then, our attorney filed a “Motion to Intervene and Petition for Access for Juvenile Court Records”. This was likewise denied. The court did not provide explanation for its denial of the motion. Our attorney believe that the court did not feel that “the best interest of the safety and welfare of the community was served” by releasing the records, as Simeon Adams was incarcerated at the time the motion was filed. Adams plead guilty to the murder of my brother and was sentenced to 55 years in jail in July 2015. He received an additional 12 year sentence later in October 2015 for a shooting that occurred two days prior to murdering my brother. So, to summarize the absurdity of this situation, the probation department failed to take action on Simeon Adams’ probation violations no fewer than 13 times prior to him murdering my brother, but when we requested the court release his juvenile records, they suddenly were concerned about public safety. Our attorney asked us if we would be willing to ask Adams for his permission to release the records in exchange for supporting him at a future parole hearing. Yes, we were being asked to make a nice, friendly deal with the murderer himself. We declined.
In December 2020, we received notice from our attorney in which he outlined his optimism for the success of our case. He felt that Tracy McDonald, the probation officer in charge of Simeon Adams at the time he murdered my brother, did not have discretion when filing notice to the court when Adams violated terms of probation. The word “must” is used in probation department policy, indicating that the probation officer had no choice in the matter. Tracy McDonald was required to file notice to the court after 3 unsuccessful attempts to make contact with Simeon Adams while he was on home confinement. Did I mention that Simeon Adams was already on “home confinement”, essentially the equivalent to house arrest for minors, in the days and weeks prior to murdering my brother? Recall that we learned from John Tuohy of The Indianapolis Star back in April of 2014 that Adams had no fewer than 13 probation violations while under Tracy McDonald’s supervision. THIRTEEN. McDonald, according to probation policy, was required to notify the court after the third failed attempt to make contact with Adams. He had six more chances after the first three attempts but failed in his duty each and every time. Obviously, had he notified the court on any of these violations, the court could have had Adams locked up. These facts and more were all confirmed via depositions of Tracy McDonald, his supervisor Christina Gibson, and the chief probation officer for Marion County, Christine Kerl, with the latter two being deposed in November 2021. At the time of deposition, both Gibson and Kerl were still employed with the Marion County Probation Department. Note that officially, Tracy McDonald “resigned” from the probation department. He was not fired, and so therefore has no sort of black mark on his employment history.
Sometime around the beginning of 2021, we learned that a jury trial date had been set for October 2021. After years of countless delays, it seemed the case was finally moving towards its conclusion. Then, in May 2021 we learned that the trial date had been moved to April 2022 due to “delay in receiving discovery emails and documents from the Defendant”. It seems the Marion County Probation Department made a whoopsie and just couldn’t find email records that our attorney was requesting. Oh, well! Another six month delay, no problem! In February 2022, the Probation Department again requested that the trial date be continued (i.e. delayed). We then learned that the Indiana Attorney General’s Office assumed responsibility for our case due to a ruling in another case that apparently affected ours.
Towards the end of 2022, the Probation Department filed a Motion for Summary Judgement, meaning the defense was seeking a judgment without a full trial. This motion was denied by the Trial Court in November 2022, meaning that our case was going to complete the discovery process and head to trial. But, not so fast. The defense appealed this decision sometime around the end of 2022 or beginning of 2023. We were informed by our attorney in February 2023 that The Indiana Court of Appeals accepts less than 20% of such appeals. Unfortunately, the Court of Appeals accepted and would review the Trial Court’s decision. The defense had thirty days to file its brief but, you guessed it, was granted an extension and finally filed its brief in May 2023.
Shortly after this time, the communication from our attorney became more pessimistic. Their confidence in winning the appeal was somewhere around 50%. Over the next few months, we were advised to consider settling the case out of court. Sometime in August 2023, the defendant, now the Indiana State Attorney General Theodore E. Rokita, filed for a seven day extension to reply to our attorney’s brief. In the file, the Attorney General said “this is an emergency motion because the brief is due today.” You read that correctly, the defendant waited until the due date of the brief to notify the court and ask for an extension. The seven day extension was, you guessed it, granted!
Around this same time, we learned that our attorney was representing another client, the estate of Hurts Presendieu. Hurts was murdered while working as a Lyft driver by 17-year-old Jahion Jarrett. Jarrett was out on bond for armed robbery and auto theft charges stemming from a September 2020 “incident”, AKA crime spree. Jarrett was wearing a GPS ankle monitor when he murdered Presendieu. Another day, another violent criminal allowed to roam the streets committing more violent crime instead of being locked away.
After being advised again to consider settling the case out of court, and after some back and forth with our attorney, we ultimately decided to settle the case around the beginning of October 2023. Our offer was swiftly denied.
And this brings us to the November 14, 2023 ruling. I will go into much greater depth below, but the following is a summary of the ruling from the Court of Appeals of Indiana as I understand it:
A probation officer has absolute immunity just like a judge because he serves the court and only the judge has the authority to remove the probation officer as he “serves at the pleasure of the court”. The appeals court acknowledges that this immunity applies even if the probation officer acts corruptly.
As you can see from the brief history I’ve outlined above, it’s taken nearly eight years to get this ruling. Three judges wearing black robes have ruled against us and reversed the Trial Court’s decision on appeal. We fought in the courts for justice, endured countless delays, time extensions, appeals, and several other stall tactics. Meanwhile our attorney spent many tens of thousands of dollars out of pocket doing research, filing paper work, deposing witnesses, and similar activities. The Probation Department was basically given unlimited time and for all intents and purposes unlimited funding (i.e. tax dollars) in mounting their defense. As plaintiffs, we had no such luxuries. Presumably, had we missed a deadline, our case would have promptly been tossed.
The Court of Appeals Judges Elizabeth Tavitas, L. Mark Bailey, and Dana Kenworthy have grossly erred in applying judicial immunity to probation officer Tracy McDonald. I’ll explain in great detail below why I believe this to be true. However, in order to understand why, it’s important to first understand the history of judicial immunity in the United States.
The History of Judicial Immunity
The history of judicial immunity is a very easy concept to understand. At its core, judicial immunity protects judges from liability for monetary damages in civil court for acts performed pursuant to their judicial function. Rather than codified in written laws or statutes, judicial immunity is (usually) derived from common law, which is the body of law created by judges or similar tribunals by virtue of being stated in written opinions. This concept makes inherent sense and originated in the courts of medieval Europe, i.e. it’s been around for roughly a thousand years. Judicial immunity serves to discourage people from attacking a court decision by suing the judge. For example, a judge might rule against a defendant in a court proceeding. The defendant cannot sue the judge for making the “wrong” decision. Obviously, if this were the case, there would be chaos and the losing party would constantly be suing the judge for what is in the end, a judgment. In other words, a judge making a ruling is simply exercising the powers of a judge, AKA doing his job, and whether a litigant is dissatisfied with the outcome is irrelevant. This ensures a judge can remain independent from constantly changing political forces, from parties to a case, and allows a judge to rule impartially without fear of retribution for simply exercising his duties in good faith.
In the United States, judicial immunity was inherited from English common law. The United States Supreme Court first recognized judicial immunity in the 1868 case of Randall v. Brigham. In this case, the court’s opinion was “all judicial officers are exempt from liability in a civil action for their judicial acts, done within their jurisdiction; and judges of superior or general authority are exempt from such liability even when their judicial acts are in excess of their jurisdiction, unless perhaps where the acts in excess of their jurisdiction are done maliciously or corruptly.” This ruling gets the idea of judicial immunity mostly correct. I don’t believe judicial acts “in excess of their jurisdiction” should be granted immunity, and I certainly don’t believe immunity should be extended to judicial acts done “maliciously or corruptly”. The reasons are simple: there is no limiting principle and such immunity would allow a judge to rule with impunity.
Let’s consider the second, easiest argument first. A judge ruling with impunity would mean he is above the law. This is contrary to rule of law, a founding principle of the United States. If a judge can rule with impunity on matters outside his jurisdiction and do it in a way that is malicious and/or corrupt, he cannot be held responsible for said decisions. A judge ruling outside his jurisdiction or maliciously or corruptly is obviously not doing his job nor duty. Consider the oath of office a judge is required to affirm before entering office in Marion County, Indiana:
“I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Indiana and that I will faithfully discharge the duties of judge of the superior court of Marion County to the best of my ability.”
Notice in the above what is stated about a judge faithfully discharging the “duties of judge.” These duties are laid out elsewhere in Indiana code (IC 33-33-49). The oath does not in any way extend to any action of the judge. In other words, judges were created for a specific purpose and to do specific duties. Therefore, a judge acting outside of these duties, especially if in a malicious or corrupt way, has violated his oath of office, is no longer acting as a judge, and should not be granted the same protections, specifically judicial immunity, granted to a judge acting in good faith and “to the best of his ability.” It’s a simple argument to follow and one the founders of this country knew well. A judge acting with impunity is a tyrant, and this country was founded on the principle of overthrowing tyrants.
Let’s consider the other argument, there is no limiting principle in the ruling made by the Court of Appeals of Indiana. The ruling posits that since probation officers serve “at the pleasure of the appointing court and are directly responsible to and subject to the orders of the court,” they are in essence an extension of the judge and should be “considered an arm of the judicial officer who is immune.” In other words, a probation officer is just an agent of the judge and performing the duties of the judge, or what the judge would do, and so he should have the same immunity protections of the judge.
This argument is simply ridiculous on its face and quickly gets out of hand because there is no limiting principle. First and foremost, a judge and probation officer are two different people with two different roles. As already mentioned, the duties of a judge are laid out in IC 33-33-49. Also included in Indiana Code are minimum qualifications for judges (IC 33-33-49-6). The duties and qualifications of a probation officer are laid out in IC 11-13-1. Read them for yourself to discover that judges and probation officers have vastly different duties and minimum qualifications. These truths are substantiated by the fact that Indiana Code separates “Courts and Court Officers” under Title 33 while keeping “Corrections” under Title 11. These two things are inherently different, so much so that each deserves its own section of Indiana Law.
Judges, for example, must be a member of the Indiana bar while probation officers are required to complete law enforcement training to carry a handgun. It’s almost as if a judge is part of a completely separate branch of government (judicial branch) while the probation officer functions as more of an executor of the law (executive branch).
This country was founded on a principle to separate functions of government so that the system would have checks and balances. When branch functions start to overlap, and judicial immunity is granted to people that serve in more of an executive role, this hearkens back to before the founding, when King George III served as all three branches in exercising power over the original 13 colonies.
Presumably, the immunity extended from the judge to the probation officer does not stop at the probation officer. Why would it if the probation officer is just attempting to carry out a court order? If the probation officer instructs someone else, the immunity would then logically transfer to him, and so on down the chain with no theoretical end.
The Ruling
The ruling made by the Court of Appeals of Indiana in Marion Superior Court Probation Department v. Trapuzzano, which I will refer to going forward as “the Trapuzzano case”, is so very flawed in fundamental ways. We’ve already discussed above how the original concept of judicial immunity has been perverted and applied well beyond its originally intended function. However, there are further flaws with the ruling including in the cases referenced by the judges.
The ruling references Thornton v. Pietrzak, a 2019 case involving a probation officer filing a notice of probation violation that in retrospect was determined to have unclear information. The Court of Appeals of Indiana found “little to distinguish the actions at issue here [in the Trapuzzano case] from the actions at issue in Thornton.” However, there are substantial differences between Thornton v. Pietrzak and the Trapuzzano case.
The main difference lies in the facts of the two cases. In Thornton v. Pietrzak, the probation officer, Pietrzak, filed a notice of probation violation for a probation sentence that was later vacated. The officer in this case properly acted in accordance with statutory duties in filing the notice and the notice was filed with information that the officer believed to be correct at the time of filing. The plaintiff, Thornton, alleged no tortious conduct, malicious motive, or illegal acts by the defendant, who acted within the scope of employment as a probation officer.
The circumstances are not similar in the Trapuzzano case. The judges in this ruling acknowledge that the defendant “intentionally provided false information.” Appallingly, they find that “regardless of whether the probation officer’s conduct was intentional or negligent, quasi-judicial immunity applies.” In other words, a probation officer is entitled to the same immunity as the judge even if he knowingly acts maliciously, breaks the law, commits fraud, or likely a whole host of other crimes. By this logic, a probation officer is essentially above the law and can act with impunity. As noted earlier, this is tyrannical. The fact that the judges making this ruling do not see a plain difference in actions taken with willful malice versus actions taken in good faith is disturbing. Our system of law recognizes such differences in many areas. The obvious example is manslaughter versus murder, the former being committed unintentionally while the latter is committed with intent. The penalties for murder are therefore much more severe, and rightfully so.
What Does the Actual Law Say?
The law in Indiana, though vast, is nevertheless clear in establishing when a governmental entity is immune from civil action and in what narrow circumstances it is not. The relevant section, IC 34-13-3-5 (c), is shown below:
(c) A lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee’s employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The above perfectly align with what has already been laid out previously. This section of Indiana law gives these specific exceptions for immunity, and it’s easy to see why. Immunity is not intended to cover cases involving criminal or malicious conduct, when actions are taken (or omitted) outside the scope of employment, when actions are willful and wanton, or when actions are personally beneficial. Why these specific exceptions? Easy, because immunity granted despite these acts or omissions would put the employee above the law and grant him immunity in circumstances where immunity was never intended to apply.
I am not a lawyer, and so I’m not sure why the rulings of judges (case law) take precedent over the actual written law. If a judge makes a ruling that becomes law, the judge is acting as part of the judicial branch and the legislative (law making) branch simultaneously. As previously stated, the separation of these two powers is fundamental to the founding of the United States. It’s pretty clear to me that a probation officer does not have immunity according to the law in IC 34-13-3-5 (c). The judges in the Trapuzzano case recognize that the probation officer, Tracy McDonald, may have acted intentionally negligently and granted the probation department immunity regardless. It seems to me that these judges have ignored written law and simply created new law out of thin air with this ruling. I simply cannot describe it any better than this.
Hypothetical Scenario Based on this New Created Law
Given the new law created out of thin air that now becomes established case law, there are all kinds of scenarios one can imagine that would be plainly classified as perversions of justice.
Consider the following scenario:
A probation officer visits a parolee and has the parolee complete a drug test as part of court mandated probation conditions. The parolee passes the drug test. Later, the probation officer submits a report to the court claiming that the parolee failed the drug test. The judge reads this report and issues a warrant for the arrest of the parolee. Police are dispatched to the parolee and he is arrested and incarcerated. This would be a false arrest and incarceration because it’s based on untrue facts.
Based on the ruling in the Trapuzzano case, it seems to me a judge would grant immunity to all involved in such a scenario should the parolee attempt to sue. The probation officer, the police, and anyone else involved in the execution of the hypothetical court order would be protected by judicial immunity since they all were simply acting in furtherance of a court order. Their actions would then be considered closely tied to a judicial proceeding and therefore granted judicial immunity.
The hypothetical scenario above could play out in many different ways. The probation officer could have fabricated the report entirely and not even administered the drug test. The parolee could have resisted arrest and ended up getting beaten by police or even killed. The extension of judicial immunity would still be the same according to the ruling in the Trapuzzano case and the parolee would have no legal recourse.
Solutions
I don’t know and can’t think of any solutions that would help to correct such a perverted system of justice. Term limits for judges might be a solution. Another solution might be direct election and/or recall of judges. However, these would fail to address a judge who makes bad rulings in any timely sort of manner. The bottom line is that judges have far too much power. When these powers are then extended to areas and people for whom they are not intended, the power will get abused, and gross injustice will be the inevitable result. Judges in Indiana essentially get to exercise judicial power, legislative power, and executive power all while being protected by absolute judicial immunity. When judges get to make up law via bad rulings, such law will stand as official record unless and until a better judge comes along and reverses the bad ruling. Even if a bad ruling is reversed, the damages done by the initial bad ruling won’t be undone. It’s not as if this hasn’t happened before. Perhaps the most well-known case occurred in 1896.
The Parallels of Plessy v. Ferguson
Plessy v. Ferguson was a landmark U.S. Supreme Court decision ruling that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that came to be known as “separate but equal”. This “separate but equal” concept, AKA legalized segregation, was enforced until being overturned roughly 60 years later when the Supreme Court ruled in Brown v. Board that “separate but equal” was unconstitutional. Bad law was enforced for nearly 60 years before finally being overturned. There were no doubt millions of non-white children and adults who suffered under this legal tyranny. As for the judges who ruled badly in Plessy v. Ferguson? All had been long dead by the time the Brown v. Board ruling was made. They suffered no consequences for their bad ruling and only now after Brown v. Board do their reputations suffer a black mark. For the millions who suffered under legalized segregation, there was and is no recourse.
Conclusion
The point in referencing Plessy v. Ferguson is to identify that judges are human. They are imperfect and their bad rulings can have lasting impacts for decades. Because of this, it is important that judges and those who hold similarly powerful positions are kept in check so that the consequences and damages of bad judgments can be mitigated. Despite this, I still do believe judges deserve judicial immunity. However, I do not believe immunity should be absolute, such as for when a judge acts corruptly, takes a bribe, or rules outside his jurisdiction. While judges should be granted immunity, this does not mean their bad actions should be above scrutiny or without political consequence.
I don’t know exactly what a better system looks like. I believe the current one is too far gone for correction. For starters, there should be strict deadlines and limited appeals processes for both plaintiffs and defendants. Currently, it’s far too easy for cases to be tied up in the system for years when the defendant is a government body that essentially gets to act with unlimited funding via taxpayer dollars, does not have to adhere to tight deadlines, and gets to exercise numerous appeals. Also, there is simply too much case law in Indiana, and I suspect elsewhere, that already has extended power that is supposed to be for a judge to well beyond the judge. If case law was divorced from the body of law, and written law passed via legislation took precedence instead, then perhaps this could be the start of correcting the concentration of power that lies with judges. What I really think needs to happen is enough citizens need to recognize that fundamental principles are being violated right now under their noses. The current system whereby case law trumps the established written law cannot continue without disastrous consequences. Power and immunity will no doubt continue to be extended improperly. People need to recognize the growing problem for what it is and establish a new system where judges’ bad rulings can be immediately recognized and overturned. Additionally, consequences levied against judges for such rulings, whether this be disbarment, demotion, or removal from office should be the norm. The 14th amendment to the United States Constitution grants citizens equal rights and protections under the law. In keeping with the spirit of this amendment, I say that nobody should be above the law: not probation officers, not probation departments, not courts, not even judges.
Update December 2023
Our attorney has appealed The Trapuzzano case to the Indiana Supreme Court.
Update April 5, 2024
Our attorney has informed us that the appeal to the Supreme Court of Indiana has been denied and the ruling by the Court of Appeals has been affirmed. This marks the end of this case. In the words of our attorney, “this decision ratifies what was already bad law regarding the accountability of probation officers.”
Liberty Matters 