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Judges disagree on case involving juror strikes

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A Marion County deputy prosecutor's striking of potential jurors has divided an Indiana Court of Appeals panel, with judges disagreeing about whether it should second-guess a lower court's finding that no racial discrimination was in play in striking the African-American jurors.

The appellate court issued a 14-page decision April 6 in Edward Killebrew v. State, No. 49A05-0905-CR-246, which reverses and remands a decision from Marion Superior Judge Steven Eichholtz that struck down Edward Killebrew's objection to the prosecution's use of peremptory challenges to strike all African-Americans from the jury pool. Judge Paul Mathias wrote a five-page dissent, saying he would affirm the case because he reads precedent from the Supreme Court of the United States differently than his colleagues.

"Even though there was some evidence tending to prove racial discrimination, I would not second-guess the credibility and demeanor judgments of the trial court in making the ultimate factual determination of whether the prosecutor's proffered race-neutral explanations were believable or simply pretextual," Judge Mathias wrote in his dissent.

The case involves Edward Killebrew's charges for felony cocaine dealing and misdemeanor resisting law enforcement charges in August 2008, and the subsequent jury selection for his trial that began in March 2009.

Five African-Americans were called as part of the jury venire and the state challenged each of them to be struck - one was a convicted felon and another was the subject of five police reports, while the state struck another because she was a nurse and the deputy prosecutor said the office has a policy of always striking nurses because they are too compassionate. Another was stricken after saying a relative was convicted of drug dealing and he felt the police had acted unfairly in that case, though a white juror with a similar statement on his jury questionnaire remained seated. The fifth person was struck after the deputy prosecutor asserted the man had been too "emphatic" in agreeing with how defense counsel described the state's burden of proof in criminal cases.

In analyzing the case, the appellate panel turned to the landmark juror challenge case of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), that established a three-part test to determine if a challenge was valid. The majority found that in recent years, the federal justices have made it clear that "courts need not accept any facially neutral reason for striking a juror and should consider 'all relevant circumstances' in assessing Batson-challenged strikes.

The majority dealt with the main two challenges to individuals who'd mentioned potential bias against the police, but didn't address the nurse-challenge in anything more than a footnote: "Additionally, reasonable minds could differ on the desirability of having nurses serve as jurors. However, without evidence that the deputy prosecutor here was being untruthful with respect to having a policy of routinely striking nurses like A.S. in all cases, regardless of race, we cannot second guess that claim."

Ultimately, Judges Michael Barnes and Elaine Brown found that there's no meaningful distinction between some of the juror strikes and non-challenges.

"Batson violations, hopefully, are and should be rare. It should not be impossible, however, for a defendant to prove a Batson violation. Neither trial courts nor appellate courts should simply blithely accept a facially neutral reason for striking African-Americans from a jury panel, especially when all African-Americans have been struck. The possibility of purposeful discrimination in the use of peremptory challenges is very much alive and real...," Judge Barnes wrote. "Although there is no indication that Marion County prosecutors systematically exclude minorities from juries, courts must be vigilant in ensuring that the jury selection process in criminal cases is free from any hint of bias."

But Judge Mathias disagreed with his colleagues' caselaw interpretations and findings, admitting that the case was very close and evidence of possible discrimination did exist enough to overturn the trial court's judgment. He wrote that the majority read a 2008 U.S. Supreme Court case too broadly, because the justices had also offered other reasons for the prosecution's challenges to jurors and past cases don't equate to the facts at issue here.

"Although I admit that this is a very close call, under the standard of review applicable to the issues before us, I cannot say that the trial court's decision to overrule Killebrew's Batson objections constitutes clear error," he wrote.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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