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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. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

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