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Alternate juror’s comment doesn’t entitle man to new trial

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A trial court properly determined an alternate juror’s alleged conduct posed only a remote risk of prejudice, and the judge’s admonishment of that juror was not an error, the Indiana Court of Appeals held.

During Jorge Henriquez’s trial for Class D felony resisting law enforcement, the bailiff told Marion Superior Judge Marc Rothenberg that she believed she heard the alternate juror say “you need to be able to live with your decision” in the jury room. Rothenberg called the alternate juror into the courtroom and told him that he is not to take part in the deliberations or influence the jury in any way and is not to communicate with the jury. The jury convicted Henriquez.

The appellate court looked at Henriquez’s claim that he was denied his constitutional right to a fair and impartial jury using the fundamental error rule since Henriquez’s attorney did not object at trial to the judge’s actions. The appellate court rejected Henriquez’s claim his case is like Lindsey v. State, 260 Ind. 295 N.E.2d 819 (1973), and found it more like Henri v. Curto, 908 N.E.2d 196 (Ind. 2009). In Henri, the alternate juror allegedly used noises and hand gestures to communicate with the jury and also did exercises during deliberations, which caused the jurors to laugh. The Indiana Supreme Court found the alternate juror’s behavior immature, but it didn’t rise to the level of misconduct that would be injurious to Henri.

In the instant case, the trial court, “in its proper discretion, determined that the alternate’s alleged conduct posed only a remote risk of prejudice, if any at all,” Senior Judge John Sharpnack wrote in Jorge Henriquez v. State of Indiana, 49A02-1201-CR-6. “Therefore, no full scale inquiry was warranted.”

There was no error, fundamental or otherwise, and Henriquez didn’t meet his burden of showing that the alleged misconduct was gross and probably injurious to him, Sharpnack wrote.

 

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  • Twisting the facts
    The baliff said she thought she heard an alternate juror say, you need to be able to live with your decision. A definite influence on the jury and admonishment is not going to change that. Anyone that believes otherwise is really stupid. Henriquez's first line of defense is ineffective council. The court of appeals is not going to admit they are wrong even though they are. Think about it the baliff claimed she heard the statement in the jury room, but by the end of the story, that statement became hand jestures. Why was the baliff in the jury room anyway?

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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