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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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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