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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues