Vanderburgh County prosecutor candidates disagree on another thing: basic lawyering

EVANSVILLE — You can add starkly contrasting views on simple lawyering to the many issues dividing Republican Diana Moers and Democrat Jon Schaefer in the race for Vanderburgh County prosecutor.

Schaefer, chief counsel for the Vanderburgh County Public Defender's Agency, faced an evidentiary hearing this month on a post-conviction relief petition arguing he denied "effective assistance of counsel" to a former client. But he and Moers disagree on the nature and seriousness of such legal developments.

They also sparred recently over what voters can deduce from the number of jury trials Schaefer has conducted in 13 years as a public defender. And on how many cases they would personally prosecute if elected.

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Schaefer, 44, and Moers, 40, are vying to succeed three-term incumbent Prosecutor Nick Hermann in the Nov. 8 election, for which early voting began Oct. 12.

"I’m not aware of the facts involved, so I don’t really have a comment on the particular case against Jon Schaefer – however, 'ineffective assistance of counsel' is very serious, particularly when (a post-conviction relief) attorney files it, and I trust that they’ll receive a fair hearing," Moers said of the filing alleging Schaefer's ineffectiveness.

"It’s a serious allegation," said Moers, Evansville-based chief of the government litigation section in the Indiana Attorney General's Office.

But Schaefer said such filings are routine in major felony cases with substantial prison sentences — and rarely are successful.

"The big cases where suddenly there’s this new evidence or the DNA stuff, those are the high-profile cases, but those are very few and far between," he said. "Usually it’s just, ‘My lawyer didn’t do a good enough job.'"

Joseph Hoffmann, a professor at Indiana University Maurer School of Law who has written extensively about criminal procedure, agreed that "ineffective assistance of counsel" claims are common and are generally filed after a convicted defendant has lost on direct appeal. They are nearly always unsuccessful.

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"A defendant has to prove two things: (first) that the defense attorney performed below the minimum constitutional standard; and (second) that this caused 'prejudice,' meaning the defendant would not have been convicted if the defense attorney had done a minimally adequate job," Hoffmann said.

"This is a very hard standard to meet."

Moers, however, noted that the claim in Schaefer's case was filed by an attorney. And Hoffmann agreed that ineffective assistance claims are often filed by the convicted individuals themselves.

The 'ineffective counsel' claim involving Jon Schaefer

In the case involving Schaefer, the veteran public defender represented Evansville resident Kyle Baker, who had been charged with murder but was convicted instead of a lesser voluntary manslaughter charge.

It was a jury trial in Vanderburgh Circuit Court. Baker was sentenced to 45 years in prison for fatally shooting 22-year-old Robert Ocke-Hall in 2016. The sentence included 30 years for manslaughter and 15 for using a firearm during a felony.

Baker, who seeks to vacate his conviction, argues among other things that Schaefer did not adequately stress his remorse and that Baker "did not enter into a knowing and voluntary plea to the aggravating circumstance of using a firearm during the commission of a felony."

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Schaefer said defendants have filed claims of ineffective assistance in all nine murder cases he has taken to trial, including Baker's, plus other felony cases, and none have succeeded.

That's a difficult claim to vet without sifting through thousands of case records.

Indiana MyCase, a public access case search platform provided by the Indiana Supreme Court's Office of Judicial Administration, does not show post-conviction relief cases, which are civil, by the names of attorneys who were involved in the original criminal trials. Schaefer's name does not appear in the MyCase entry for Baker's post-conviction relief claim or anywhere in civil court records for Vanderburgh County.

Schaefer took issue with Moers' characterization of "the particular case against Jon Schaefer."

"The plaintiff is the client (Baker) and the defendant is the state of Indiana," he said. "I'm really a witness. It's not filed against me."

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'Ethics 101'

Schaefer often tells voters that he has defended people in 41 jury trials in Vanderburgh County courts and has won acquittals or convictions on lesser charges in 60% of them.

Only 41? Moers asks. Something is wrong.

Given Schaefer's nearly 13 years as a public defender, she said, a total of 41 trials works out to only slightly more than three per year. What about all his other cases?

“He’s been critical of deputies in the (prosecutor's) office, but the number of cases he’s pleading out would suggest they’re doing a good job of getting convictions against him," Moers said.

Moers pointed to her work as an assistant prosecutor in the Will County State's Attorney's Office in Joliet, Illinois, from April 2008 to August 2010, during which she says she independently conducted 20 jury trials and hundreds of bench trials. That works out to about 10 jury trials per year.

"And I’m only counting the ones when I was a deputy prosecutor as first chair," she said.

Schaefer countered that Moers doesn't understand "ethics 101."

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"It’s not my call to go to trial," he said. "It’s the client’s, and it’s the client’s call whether to plead guilty. It’s the prosecutor’s office that’s in control of making the plea bargains. I ethically cannot dictate whether to go to trial. That’s the client’s decision alone."

Forty-one jury trials in nearly 13 years might sound like a low number to Moers, Schaefer said, but if she knew Vanderburgh County courts better, she would know it's not.

Schaefer pointed to Dawnya Taylor, a busy part-time public defender and private defense lawyer who he said may do 10 felony jury trials or more in a year's time. Scott Danks, strictly a private defense lawyer who does more civil work, may not have nearly as many, Schaefer said.

Taylor provided six names of clients with whom she has gone to jury trials in felony cases in Vanderburgh County this year through late September. There were at least a couple more, Taylor said. Danks said he's done three so far.

Overall, Schaefer said, local defense attorneys average three or four jury trials on major felony cases per year.

Moers responded to Schaefer's "ethics 101" remark by saying it's also his ethical duty to advise clients to fight charges if there's no valid basis for them.

"(Schaefer's) years of experience should dictate that if there are cases that are not valuable – not properly worked up or don’t have the evidence — that he would have many more trials than that because he would be advising his clients to make a lot more challenges to the cases against them," she said.

Candidates get more specific about their differences

Schaefer said deputy prosecutors he knows privately complain that Hermann is not present in the office enough and is rarely in court with them. According to Schaefer, they must then abide by policies on pleading cases that Hermann issues when he's not there to see how those policies can hamstring his deputies.

Schaefer and Moers have clashed repeatedly over the elected prosecutor's obligation to try cases personally, with Schaefer pledging to be a courtroom prosecutor much as Stan Levco was when he held the job from 1991 until 2011.

Moers has resisted Schaefer's accompanying attempts to cast her as too similar to Hermann, who Schaefer says employs an administrative hierarchy of experienced lawyers when those lawyers should be working in courtrooms. Moers insists she will have a caseload, but she will also take responsibility for the administrative and executive aspects of running the prosecutor's office — tasks Schaefer says he will delegate to administrators who aren't lawyers.

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Schaefer and Moers have gotten more specific of late.

As prosecutor, Schaefer pledged, he would personally take at least 100 cases a year, "and it’s going to range from murder down to theft."

"The only way that we’re going to reduce caseloads currently is if everybody (in the prosecutor's office) has a caseload, and that means everybody," he said. "Everybody under my administration who has a law license in that office will have a caseload.

"That doesn’t mean that’s all they’re going to do. But I’m not going to cherry-pick and take the one media-friendly murder case every year. I’m going to take cases."

Moers doesn't have a number in mind, but she knows as Vanderburgh County's chief prosecutor, she would take high-profile cases. It will not be a huge caseload, Moers said, but she will "adjust to where I'm best positioned to serve."

Moers takes an expansive view of the prosecutor's role.

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"I’m a public servant. What can I do for you? How can I help collaborate with law enforcement, and what can I do for the staff of the prosecutor’s office?" she said at a recent candidate forum. "I’m not running for prosecutor to say that I’m the best trial attorney in Vanderburgh County. In fact, my platform has been, 'how can I help the deputy prosecutors there do a great job?’"

Election day is less than two weeks away. The schedule and location of early in-person voting for the Nov. 8 election in Vanderburgh County is here.

This article originally appeared on Evansville Courier & Press: Vanderburgh prosecutor candidates disagree on another thing: lawyering