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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. 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?)

  3. 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.

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

  5. 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.