ILNews

Judges disagrees about jury-verdict reversal

Michael W. Hoskins
January 1, 2008
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The chief judge on the Indiana Court of Appeals is calling a majority's decision today a "radical act" in reversing a $45,000 jury verdict in favor of a former Butler University football player who was suspended from the school after being accused of raping a female volleyball player.

In Susana Henri v. Stephen Curto, No. 49A02-0709-CV-777, Chief Judge John G. Baker disagreed with his two colleagues - authoring Judge Patricia Riley and Judge Margret Robb, who reversed the Marion County jury decision and ordered a new trial.

The case stems from a house party near Butler University in March 2004. Henri accused Curto of raping her in her dorm room, and a university judicial hearing found he'd violated the school rules and suspended him for four years. No criminal charges ever resulted, but Henri filed a civil suit in late 2004 and Curto filed a counterclaim that she had tortiously interfered with his being enrolled in a degree program.

Ultimately, a jury returned a unanimous verdict on the same day it started deliberating, finding that Curto had not raped Henri and that she had in fact interfered with his university contract and awarded him $45,000.

In this appeal, the central issues involved juror misconduct claims and a bailiff's statement to a juror during deliberations. Following the verdict, Henri submitted affidavits stating that one juror had contacted her counsel about being told 20 minutes into deliberations that the jury would have to continue deliberating until a unanimous verdict was reached.

This juror had asked if the verdict needed to be unanimous and wanted to be excused as she was reportedly the sole juror leaning toward Henri's favor and felt the jury was "hopelessly deadlocked," the appeals ruling states.

The bailiff said no and didn't relay the message to the judge or attorneys. Affidavits also noted that jurors kept cell phones and engaged in conversations during deliberations about finishing soon, and the alternate juror reportedly interrupted and distracted the jury during deliberations.

The trial court denied a motion to correct error and supplement the record without a response from Curto's side.

In its appellate ruling, the three-judge panel considered the alleged errors collectively and determined that the outside influence and alternate juror misconduct claims compounded what the panel determined was an ex parte communication, which the majority found to be a misstatement of the law because hung juries can happen.

"The effect of the statement could have a significant impact upon the verdict," Judge Riley wrote. "A plausible effect of the judge's instruction would be that jurors in the minority who are adamant that the majority is wrong may hold out to prevent a verdict. However, the statement by the bailiff conveys that jurors in the minority would face the daunting task of swaying all the other jurors if they are to stick to their convictions, a task surmountable in less than two hours on the silver screen if you are Henry Fonda, but a task that could be overwhelming in real life for the average juror."

On the other points about juror misconduct and outside influence, the majority noted they were at a minimum a nuisance that interrupted the deliberative process but could also amount to obstacles to reaching a fair determination.

Chief Judge Baker took issue first with accepting the juror's affidavit events as true, but that they'd even warrant a reversal if true. He cited the court's recent decision in Myers v. State, 887 N.E. 2d 170 (Ind. Ct. App. May 30, 2008). That case involved the murder of Indiana University student Jill Behrman and claims that sequestered jurors were drinking, watching television, and acting inappropriately during deliberations. This case doesn't rise to that level, the chief judge wrote, but the situation was not ideal.

"I simply do not find it sufficient to take the radical act of reversing a jury verdict and remanding for a new trial," wrote Chief Judge Baker.

Judge Robb wrote a concurring opinion that this case shouldn't be compared to another case as Chief Judge Baker did. She also pointed out that parties are entitled to fair trials and a reversal is appropriate if one party can demonstrate he or she didn't receive one.

One of Curto's attorneys, Bryan Babb with Bose McKinney & Evans in Indianapolis, said he plans to ask the Indiana Supreme Court to review the case.
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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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