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Indecision over peremptory challenge waives defendant’s ability to appeal

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A defense counsel’s courtroom debate over how to use his final peremptory strike prohibited the defendant from appealing the trial court decision to retain a juror who raised concerns about impartiality.

Gary Oswalt appealed his convictions and aggregate 84-year sentence for two counts of child molesting as Class A felonies, child solicitation as a Class D felony, and five counts of possession of child pornography as Class D felonies.  

Oswalt argued the trial court abused its discretion when it refused to remove Juror No. 28 for cause after the defense had exhausted its peremptory strikes. He maintained that juror should have been removed because during questioning the juror told the court he could not be fair and was not comfortable hearing the case.

The state countered Oswalt had not used all his peremptory challenges when the court denied his request to strike Juror No. 28. After the court denied Oswalt’s counsel’s motion to strike, the attorney had an audible conversation over whether to use his last peremptory strike to remove Juror No. 25 or Juror No. 28 before deciding to remove the former.

Therefore, the state concluded, Oswalt waived appellate review because he had not exhausted his peremptory challenge at the time that the court denied his request to strike Juror No. 28 for cause.

In Gary Oswalt v. State of Indiana, 35A02-1208-CR-684, the Indiana Court of Appeals agreed with the state. It found that Oswalt had failed to exhaust his peremptory strikes at the time he tried to remove Juror No. 28.  

However, in a footnote, the Court of Appeals stated it might have ruled differently if the defense had not debated how to use the final peremptory challenge. According to the COA, the record demonstrated that when Oswalt asked the court if he had used his last preempt, the court affirmed.

If this had been the extent of the discussion, the COA stated it would agree that Oswalt had exhausted his peremptory strikes. However, the record went on to show defense counsel then debated how to use his final strike, indicating he was aware he had not used all his peremptory challenges.  

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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