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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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