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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.