Since the Indiana Court of Appeals won’t bite, Sheriff Oscar Martinez Jr. one of his cases at the very top.

Martinez, through his attorneys Paul Stracci and James Woods, filed a petition for transfer with the Indiana Supreme Court on March 10, according to court records. Previously, the Indiana Court of Appeals twice denied Martinez’s motion to dismiss his charges stemming from a 2021 traffic stop, clearing the way for him to stand trial before a special judge.

Martinez was indicted on January 6, 2022, on Level 6 felony charges of resisting law enforcement and misdemeanor counts of reckless driving. The state’s charges stem from an incident on September 18, 2021, in which Crown Point police officers conducting a traffic stop around 11:30 p.m. in the 9000 block of Taft Street saw a black SUV traveling northbound on Main Street “at what appeared to be a speed well over the 45mph limit.” Officers attempted to catch up to subdue the vehicle, according to a police report, but when officers entered the vehicle, the driver activated red and blue emergency lights, signaling that it was an unmarked police car.

Court of Appeals Judge Margaret G. Robb said in her Jan. 26 decision that the district court “did not abuse its discretion” in denying Martinez’s motion to dismiss because the police officer who testified during Martinez’s grand jury hearing did not provide legal advice. In their Supreme Court petition, however, Stracci and Woods argue that “opinion testimony about the legality of a target’s alleged conduct should not be allowed in grand jury proceedings.”

“…although Smith’s testimony is properly characterized as “his interpretation of whether, given the specific facts of this case, he would have charged Martinez,” it is ultimately an opinion about the legality of the alleged conduct and impermissible under earlier precedent of this Court,” the petition said.

Furthermore, prosecutors are not required to use a grand jury, but if they do, prosecutors must comply with the constitutional restrictions and requirements imposed by the General Assembly, the petition states.

“In pertinent part, subsection (j) of the statute reserves to the grand jury the role of ‘the exclusive trier of fact with respect to any question before it,'” the petition states. “(Indiana code) prohibits the grand jury from receiving legal advice from sources other than the prosecutor and the court.

“Although this Court has not addressed these points directly, the Court has addressed the propriety of opinion testimony on legality before a grand jury.”

The Indiana Supreme Court has 45 days to respond to the petition.

The attorneys also argued that Robb’s claim that the officer’s testimony was “his interpretation of whether, given the specific facts of this case, he would have charged Martinez” differs from the Indiana Supreme Court’s earlier classification of similar testimony as “legal advice.”

“Martinez does not dispute this accurate characterization of the testimony. Indeed, Martinez’s point is that Smith’s opinions were his interpretation of the relevant laws, applied to the specific facts of the case in detail, to reach the conclusion that he (and a hypothetical prosecutor ) would accuse Martinez of these facts.

Stracci and Woods had argued in an appeal filed Sept. 22 that the court’s denial of his motion to dismiss should be reversed “because his fair trial to a neutral and detached atmosphere in the grand jury proceedings was prejudiced by the statement of (Indiana). State Police Commander (Kevin) Smith. »

Smith’s testimony, Stracci and Woods said, constituted legal conclusions and opinions that clearly sought to persuade the jury to side with Special Prosecutor Stanley Levco in indicting Martinez on two criminal counts.

But Smith’s testimony, Robb wrote, was “limited to his personal experience as a police officer or his interpretation of whether, given the specific facts of this case, he would have charged Martinez,” which Indiana law says is not “legal advice.” He instead gave his opinion “in the context of the specific facts,” she wrote.

Further, Smith’s opinion statement was intended to “assist the grand jury in reaching a decision and did not impede or remove the power to be the ‘exclusive trier of fact’ from the grand jury,” Robb wrote. Martinez’s lawyers had argued that “Martinez claims that Commander Smith’s testimony ‘as to both the crimes, their elements, and how they fit the evidence presented, are opinions on the ultimate question, usurping the role reserved for the grand jury’ .”

Martinez previously called the accusations a “political witch hunt”. Martinez, a Democrat, was elected via caucus in September 2017 to fill the remaining term of former Sheriff John Buncich after he was convicted on federal public corruption charges.

Martinez, who was elected to his second full term as sheriff in November, is scheduled to appear at 11 a.m. May 18 before Lake Superior Court Judge John Sedia on his complaint for declaratory judgment and injunction asserting the Firearms Act, which took effect in July, “violates his rights under the Indiana State Constitution.” The Firearms Act allows, among other things, persons under prosecution to carry firearms.

Michelle L. Quinn is a freelance reporter for the Post-Tribune