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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. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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