ILNews

Judges disagrees about jury-verdict reversal

Michael W. Hoskins
January 1, 2008
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The chief judge on the Indiana Court of Appeals is calling a majority's decision today a "radical act" in reversing a $45,000 jury verdict in favor of a former Butler University football player who was suspended from the school after being accused of raping a female volleyball player.

In Susana Henri v. Stephen Curto, No. 49A02-0709-CV-777, Chief Judge John G. Baker disagreed with his two colleagues - authoring Judge Patricia Riley and Judge Margret Robb, who reversed the Marion County jury decision and ordered a new trial.

The case stems from a house party near Butler University in March 2004. Henri accused Curto of raping her in her dorm room, and a university judicial hearing found he'd violated the school rules and suspended him for four years. No criminal charges ever resulted, but Henri filed a civil suit in late 2004 and Curto filed a counterclaim that she had tortiously interfered with his being enrolled in a degree program.

Ultimately, a jury returned a unanimous verdict on the same day it started deliberating, finding that Curto had not raped Henri and that she had in fact interfered with his university contract and awarded him $45,000.

In this appeal, the central issues involved juror misconduct claims and a bailiff's statement to a juror during deliberations. Following the verdict, Henri submitted affidavits stating that one juror had contacted her counsel about being told 20 minutes into deliberations that the jury would have to continue deliberating until a unanimous verdict was reached.

This juror had asked if the verdict needed to be unanimous and wanted to be excused as she was reportedly the sole juror leaning toward Henri's favor and felt the jury was "hopelessly deadlocked," the appeals ruling states.

The bailiff said no and didn't relay the message to the judge or attorneys. Affidavits also noted that jurors kept cell phones and engaged in conversations during deliberations about finishing soon, and the alternate juror reportedly interrupted and distracted the jury during deliberations.

The trial court denied a motion to correct error and supplement the record without a response from Curto's side.

In its appellate ruling, the three-judge panel considered the alleged errors collectively and determined that the outside influence and alternate juror misconduct claims compounded what the panel determined was an ex parte communication, which the majority found to be a misstatement of the law because hung juries can happen.

"The effect of the statement could have a significant impact upon the verdict," Judge Riley wrote. "A plausible effect of the judge's instruction would be that jurors in the minority who are adamant that the majority is wrong may hold out to prevent a verdict. However, the statement by the bailiff conveys that jurors in the minority would face the daunting task of swaying all the other jurors if they are to stick to their convictions, a task surmountable in less than two hours on the silver screen if you are Henry Fonda, but a task that could be overwhelming in real life for the average juror."

On the other points about juror misconduct and outside influence, the majority noted they were at a minimum a nuisance that interrupted the deliberative process but could also amount to obstacles to reaching a fair determination.

Chief Judge Baker took issue first with accepting the juror's affidavit events as true, but that they'd even warrant a reversal if true. He cited the court's recent decision in Myers v. State, 887 N.E. 2d 170 (Ind. Ct. App. May 30, 2008). That case involved the murder of Indiana University student Jill Behrman and claims that sequestered jurors were drinking, watching television, and acting inappropriately during deliberations. This case doesn't rise to that level, the chief judge wrote, but the situation was not ideal.

"I simply do not find it sufficient to take the radical act of reversing a jury verdict and remanding for a new trial," wrote Chief Judge Baker.

Judge Robb wrote a concurring opinion that this case shouldn't be compared to another case as Chief Judge Baker did. She also pointed out that parties are entitled to fair trials and a reversal is appropriate if one party can demonstrate he or she didn't receive one.

One of Curto's attorneys, Bryan Babb with Bose McKinney & Evans in Indianapolis, said he plans to ask the Indiana Supreme Court to review the case.
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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. 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

  5. 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.)

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