Court divided over consent to 5-person jury

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A panel of Indiana Court of Appeals judges split on the issue of whether a defendant agreed to allow a five-member jury to decide her case after one juror fell ill, with the dissenting judge believing the defendant – not her counsel – must consent to the five-person jury.

Robbie Bex was charged with Class A misdemeanor operating while intoxicated endangering a person following a car accident as she attempted to leave her employer’s parking lot after work. Six jurors were seated for her trial without an alternative chosen. During trial, one juror had a medical emergency, and the case proceeded to verdict with only five members. Counsel previously had consented to this, but later moved for a mistrial. Bex was convicted and ordered to 360 days in jail with 350 days suspended to probation and 80 hours of public restitution work.

In Robbie J. Bex v. State of Indiana, No. 53A01-1008-CR-422, Bex claimed her constitutional right to a trial by jury was violated since only five jurors determined her guilt. The appellate court decided that under the Sixth Amendment, a defendant may waive his or her statutory right to a six-person jury trial and agree to be tried by a jury of five members. Bex had a statutory right to a six-person jury and was able to decline the service of a panel made up of less than six members, wrote Judge James Kirsch. She also knew that no alternative juror was selected so there could be a possibility that only five people would decide her case.

“We agree with the reasoning of the Florida Supreme Court that, based upon a defendant’s right to waive the presence of an entire jury, it would be inconsistent to hold that a defendant could not waive the presence of one juror,” wrote Judge Kirsch. “Therefore, we conclude that there is no federal constitutional bar to a defendant’s waiver of the presence and participation of one of the six jurors in a criminal trial.”

The majority found a defendant can consent to a trial by fewer jurors than assured to her by statute and that decision is one of trial procedure. A defendant who consents to representation by counsel consents to his or her counsel’s decision on trial strategy. Bex didn’t object to her attorney’s agreement to proceed without an alternative juror or with the five-member panel, so she is bound by those decisions, wrote the judge.

Senior Judge Patrick Sullivan dissented on this point, believing Bex herself had to waive her right, not her attorney. He said based on the record, it appeared Bex was present in the courtroom during the attorneys’ sidebar with the trial judge regarding the number of jurors, but she was not a party to it. There’s a possibility she wasn’t privy to her counsel’s stipulation of waiver of her right because she wasn’t present in the courtroom in order to have the opportunity to object, he wrote. Based on this, her conviction should be reversed.

The majority also concluded the trial court didn’t abuse its discretion by imposing a public defender fee as a condition of probation without first holding a hearing on Bex’s ability to pay because the fees were not due until after she completed the executed portion of her sentence. The majority also affirmed the order that she complete 80 hours of public restitution.  


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  1. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.