In a shocking decision by the Indiana Court of Appeals last week, Judge Riley wrote a decision for the three (3) member panel:
State of Indiana v. Thomas (Ind. App. 2014)
In the above Case, the Criminal Defendant was charged with four (4) counts of Criminal Deviate Conduct as a Class B Felony, and one (1) count of Sexual Battery as a Class D Felony. At trial the Prosecutor commented that the only story the jury should believe was that of the state because the Criminal Defendant did not testify.
The statement in question made by the prosecutor was,
“What does your instruction say about a witness? It says you should not disregard any witness without a reason and without careful consideration. The testimony is not – it’s been challenged but the testimony, there’s not another story that’s going on here. You’ve not heard the testimony of another story. You heard what [Thomas] told Officer Hinton, but he wasn’t raising his right hand swearing to tell the truth. He’s not a witness in this case. If you find –…”
The Trial court, upon the request of the Defendant’s criminal defense attorney on two (2) occasions reprimanded the Prosecutor and admonished the jury to not consider the Prosecutor’s remarks.
The Indiana Court of Appeals found that the State sufficiently proved that the above statement was “harmless” in that its case was strong absent the statement, and that the Criminal Defense Attorney failed to demonstrate the statement’s precise effect on the jury, and the ineffectiveness of the admonishment that the trial court gave, and therefore ruled in favor of the State and affirmed the criminal defendant’s convictions.
This statement is abhorrent to Thomas’ Fifth Amendment Right not to testify at his criminal trial. No mention can be made of a criminal defendant’s refusal to testify in any way whatsoever, by inference or otherwise. The practical implication of the court’s action here is that if an admonishment is given to the jury, then the criminal defense attorney must prove that the jury acted on the statement(s). I’m not really sure here how even the best criminal defense attorney could prove such a fact; the criminal defense attorney would have to be in the room while the jury is deliberating, which is expressly prohibited.
The moral of this story here is, your criminal rights can be violated so long as you can’t prove it. I could not more strongly disagree with the court on this issue, and I surely hope the Indiana Supreme Court weighs in on this criminal defense issue.
If your criminal rights have been violated, contact a criminal defense attorney at SFT Lawyers for a FREE CONSULTATION today! (219) 841-5683.