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Prosecutor’s comments on defendant not testifying don’t require reversal

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The Indiana Court of Appeals, in addressing a defendant’s claims of prosecutorial misconduct, found that any misconduct committed was a harmless error and does not require criminal deviate conduct and sexual battery convictions to be overturned.

Craig Bakari Thomas sexually assaulted his classmate K.B. while the two were sitting in a car at a park. Thomas chose not to testify at his trial and was convicted of two counts of Class B felony criminal deviate conduct and one count of Class D felony sexual battery.

In Craig Bakari Thomas v. State of Indiana, 71A04-1305-CR-256, Thomas argued that two comments by a deputy prosecutor resulted in prosecutorial misconduct. Both referred to Thomas not testifying at the trial. The trial court issued an admonishment to the jury regarding the first comment made by the deputy prosecutor that said there is no other story, to disregard the fact that Thomas wasn’t sworn and didn’t testify. The judge did not issue an admonishment regarding the second comment, in which the deputy prosecutor said, “That’s not what the defendant is saying. The defendant is not saying ….” The judge required the deputy prosecutor to clarify that those statements referred to statements Thomas gave to police officers.

With respect to the first comment, the Court of Appeals agreed that the deputy prosecutor’s comments reasonably could be interpreted as an invitation to draw an adverse inference from Thomas’ silence. In fact, the deputy was suggesting that the jury draw an inference of guilt from Thomas’ decision to not be sworn in and tell his story. But the error was harmless, because the state could prove that the comment did not contribute to the verdict. The judge’s curative instruction defused the impact of the state’s improper remark, Judge Patricia Riley wrote.

The COA noted that the second comment did not amount to an indirect reference to Thomas’ decision to not testify.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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