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Bailiff’s communication with juror leads to reversal of convictions

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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.

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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