Justices reformulate jury instruction

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The Indiana Supreme Court upheld the denial of a man’s petition for post-conviction relief claiming ineffective assistance of counsel. In doing so, the justices addressed the use and language of a jury instruction and rewrote it to make it clearer.

In Kevin L. Hampton v. State of Indiana, No. 84S04-1103-PC-161, Kevin Hampton appealed the denial of his claim of ineffective assistance of appellate counsel. Hampton was convicted of murder, rape and criminal deviate conduct; his convictions and sentences were upheld by the Indiana Court of Appeals. He then sought post-conviction relief, claiming his appellate attorney rendered ineffective assistance by not asserting on direct appeal that the trial court erred in refusing to instruct the jury "[w]here proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence."

Hampton argued that the DNA evidence presented – collected from vaginal swabs and the victim’s tank top – was not direct, but circumstantial evidence.

Before addressing Hampton’s claims, the justices first looked at when to give the “reasonable theory of innocence” instruction. Writing for the court, Justice Brent Dickson said that it is appropriate that juries receive, where appropriate, a “reasonable theory of innocence” instruction in addition to the standard reasonable doubt instruction. The justices decided the current advisement needed reformulated.

“We thus hold that, when the trial court determines that the defendant's conduct required for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence,” he wrote.

The justices then turned to the issue of whether DNA evidence is direct or circumstantial evidence – an issue that had not been specifically addressed by the Indiana Supreme Court or in other states.

“Application of our analysis today leads us to conclude that the DNA evidence in the present case should be considered as circumstantial and not direct evidence of the defendant's conduct comprising the physical components of each of the charged criminal offenses (actus reus). On the other hand, such focus upon actus reus has not been the prevailing basis of prior Indiana case law, which had usually found the ‘reasonable theory of innocence’ instruction properly rejected when any one element of a criminal offense has been proven by direct evidence,” Dickson wrote.

“Under such line of authority, the rejection of the instruction would not have been error in the present case because of the direct evidence in this case proving that the victim was raped, murdered, and criminally sexually battered by someone, or the DNA direct evidence identifying the defendant as having a prior involvement with the victim. The existing state of the law could have led the defendant's appellate counsel to conclude that there was little if any merit in pursuing on appeal the refusal of the ‘reasonable theory of innocence’ instruction.”



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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. 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.

  4. 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.

  5. 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.