ILNews

Bailiff’s communication with juror leads to reversal of convictions

Back to TopCommentsE-mailPrintBookmark and Share

The bailiff at a man’s trial for criminal recklessness and resisting law enforcement improperly communicated with the jury foreperson regarding reaching a verdict, leading the Indiana Court of Appeals to reverse Jason Lee Sowers’ convictions.

Sowers was on trial after he fled from police, struck one officer’s car causing it to flip, and ran into a nearby home. Sowers suffered from schizo-affective and bipolar disorder and had previously been committed for treatment. He was charged with Class C felony battery and Class D felonies criminal recklessness and resisting law enforcement. He was also alleged to be a habitual offender.

During deliberations the jury foreperson asked the bailiff if “they were to stay and deliberate until they reached a 100 percent agreement with the counts.” The jury instructions said “To reach a verdict, each of you must agree to it.” The bailiff told the foreperson that the judge stated they have to be 100 percent in agreement. Sowers was found guilty but mentally ill on the Class D felonies, and not responsible by reason of insanity on the battery charge. The judge later found him to be a habitual offender.

A poll of the jury about whether these were their true verdicts led Juror 3 to say “I have a conscience about it but yes.” This juror later indicated that the jury had been told there had to be verdicts.

Because Sowers didn’t object at trial, the judges had to decide on appeal whether the bailiff’s communication with the foreperson resulted in fundamental error. It did, they concluded, noting that Coolman v. State, 163 Ind. 503, 72 N.E. 568 (1904), is instructive. The bailiff is not to communicate with a juror except in certain circumstances, such as to ask if they have agreed on a verdict or when ordered to do so by the court.

“Here, we observe that the question was not whether the jurors had to reach 100 percent agreement to reach a verdict, but whether ‘they were to stay and deliberate until they reached a 100 percent agreement with the counts,’” Judge Elaine Brown wrote for the majority in Jason Lee Sowers v. State of Indiana, 08A02-1208-CR-640. And the record reveals the bailiff’s comment was told to the foreperson and shared with at least one other juror. The error constitutes a “blatant violation of basic principles” and that error denied Sowers fundamental due process.

Judge Cale Bradford wrote in his dissent that he would uphold the jury’s convictions, finding the communication did not result in a fundamental error.

“The communication between the bailiff and the jury foreperson did not make it impossible for Sowers to receive a fair trial. At most, the record suggests that Juror Overman may have relied on the jury foreperson’s recitation of the bailiff’s answer regarding whether the jurors had to agree ‘100%’ to return a verdict,” he wrote.

However, he would vote for remand with instructions to amend the sentencing order to treat the habitual offender enhancement as a sentence enhancement of one of the underlying felony convictions rather than treating it as a separate consecutive sentence.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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.

ADVERTISEMENT