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COA split on impact of jury instruction omission

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One Indiana Court of Appeals judge dissented from his colleagues' decision to grant a new trial based on the lack of a jury instruction on robbery because he didn't think the defendant was prejudiced by the omission.

"The question is not whether error occurred, but whether there exists a reasonable probability that he would have been acquitted had it not occurred," wrote Judge Cale Bradford in his dissent in Kevin Taylor v. State of Indiana, No. 20A04-0909-PC-511. "I think (Kevin) Taylor has fallen far short of carrying his burden on this point."

Judge Bradford found the error to be harmless because the conviction was clearly sustained by the evidence and the jury couldn't have properly found otherwise. He also held Taylor failed to show he received ineffective assistance from his appellate counsel.

Taylor and two other defendants were charged with felony murder during a robbery, tried together, and convicted. Taylor appealed, and his conviction was affirmed. Defendant Kelly Scott Thomas had his conviction overturned on direct appeal because the court didn't instruct the jury on the elements of robbery. Taylor then filed for post-conviction relief, claiming ineffective assistance of trial counsel because of his attorney's failure to object to the final instructions, which didn't instruct on the elements of robbery. His petition was denied; the appellate court remanded for a new hearing. The post-conviction court again denied his petition.

The appellate judges concluded that Taylor met his burden of showing the post-conviction court erred by ruling his counsel hadn't performed deficiently. His trial counsel acknowledged his failure to object to the jury instruction was an oversight. But they split when deciding if Taylor was prejudiced by his trial counsel's performance.

"The harmless-error analysis proffered by the post-conviction court, the State, and the dissent presumes too much," wrote Judge Edward Najam for the majority. "It is the province of the jury to decide Taylor's guilt, but, having never been instructed on any of the elements of robbery, it is impossible to say whether the jury would have found Taylor guilty of robbery. A jury cannot be asked to find guilt without an instruction on the elements of the crime."

Harmless-error analysis has no place where an essential instruction on the underlying offense is entirely missing, he continued. The majority reversed the denial of Taylor's petition for post-conviction relief and remanded for a new trial.

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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