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. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  3. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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