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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. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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