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COA divided on whether 'bully' comments require new trial

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The Indiana Court of Appeals split in affirming a man’s drunk-driving conviction, with the dissenting judge finding the prosecutor’s questions to the jury and repeated reference to the defendant as a bully at trial made a fair trial impossible.

In Martin Roy Emerson v. State of Indiana, No. 07A01-1009-CR-486, Martin Emerson appealed his convictions of Class C misdemeanor operating a vehicle while intoxicated and Class C felony operating a vehicle while driving privileges are forfeited for life. A Nashville police officer clocked a van going more than 40 mph over the speed limit. She saw a man driving the van, and when she tried to pull the car over, the driver pulled into a driveway. As she came upon the vehicle, she saw the man sitting in the passenger seat and a woman getting into the car through the driver’s side door. That woman, Sophia Morgan, told the officer that the man, Emerson, was driving and made her switch seats. Emerson screamed at the officer and wasn’t compliant with her commands, so he was eventually handcuffed. Emerson smelled of alcohol. He later admitted at jail he had been drinking.

The Court of Appeals affirmed his felony conviction of operating a vehicle while driving privileges are forfeited for life. But the judges disagreed as to whether the prosecutor’s comments during voir dire and opening and closing statements regarding bullies was a fundamental error requiring a new trial. Emerson didn’t object to the statements during trial.

During voir dire, the prosecutor asked prospective jurors questions such as if they would do something just because a bully told them to, and if they would believe a statement was true just because a bully said it. During opening and closing arguments, the prosecutor made comments like Emerson “tried to bully his way out of it” and the jurors should “stand up to this bully and tell him that he committed a crime with a verdict of guilty.”

Judges Cale Bradford and Nancy Vaidik didn’t believe the prosecutor’s improper, but fleeting, request that the jury stand up to the defendant made it impossible for Emerson to receive a fair trial. They also found the prosecutor’s comments were relevant to the case and were clear that the statements amounted to nothing more than his opinion.

Senior Judge Betty Barteau disagreed, finding the statements taken as a whole conditioned the jury to conclude that Emerson was a person of poor character and encouraged the jury to stand up to him and find him guilty because of perceived character flaws rather than because he committed the offense at issue.

She would reverse his OWI conviction and recommend he be retried. She would allow his conviction for operating a vehicle while driving privileges are forfeited for life to stand because the trial court provided new preliminary and final jury instructions for that phase of the trial and the state did not characterize Emerson as a bully during that portion of the trial.

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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