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Judges order new trial based on prosecutor’s comments

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Comments made by a prosecutor during a Harrison County man’s trial for charges stemming from a break-in at a convenience store improperly suggested that the man chose not to testify so he would not incriminate himself, the Indiana Court of Appeals ruled.

In Patrick Nichols v. State of Indiana, 31A01-1112-CR-599, the state charged Patrick Nichols with Class C felony burglary, Class D felony theft and Class A misdemeanor criminal mischief, believing he broke into the Wilson General Store and gas station in Elizabeth and stole cigarettes and an air conditioner unit. Store owner Emmett Wilson and a police officer went to the store after the burglar alarm went off around 3 a.m. on April 14, 2011. No one was found in the store, but items were missing and in disarray.

According to court records, Nichols made several calls from inside the store between 6 and 7 a.m., including to his mother and ex-girlfriend. He told his ex-girlfriend that he was at a gas station in Elizabeth and needed picked up, but she did not get him. A passerby saw a PT Cruiser in the alley near the store and saw some of the metal siding from the store was pried off. The passerby wrote down the license plate number, which was only one “alpha character” different than the license plate number of Nichols’ mother, who also had a PT Cruiser.

The prosecution acknowledged that its evidence against Nichols was “not a lot.” The prosecutor went on to say, “I usually don’t comment on a person’s [F]ifth [A]mendment right …” and told a story about another case in which the evidence was extremely thin but the defendant was convicted because he chose to testify and, in testifying, provided the jury with evidence of his guilt.

Nichols did not object to the prosecutor’s comments and was convicted of the three charges.

The Court of Appeals decided the prosecutor’s comments rose to the level of fundamental error. The jury could have reasonably inferred that the prosecutor was suggesting that Nichols didn’t testify so as to avoid self-incrimination, Judge Terry Crone wrote.

“In fact, we think it is obvious that the prosecutor was suggesting that the jury draw an inference of guilt from Nichols’s decision not to testify. Given the obviousness of the prosecutor’s comments and the fact that the evidence of guilt was not overwhelming in this case, we conclude that the comments placed Nichols in a position of grave peril and constituted clearly blatant violations of basic and elementary principles of due process that presented an undeniable and substantial potential for harm,” he wrote.

The judges ordered the trial court conduct a new trial.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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