Issue regarding replaced juror results in new trial for Indianapolis murder suspect

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Adrian Durden

INDIANAPOLIS, Ind. – A man convicted of murder and several drug charges will get a new trial after a ruling from the Indiana Court of Appeals last week.

In December, jurors found Adrian Durden guilty in connection with an April 2015 shooting that killed 45-year-old Shawn Nash. Police arrested Durden about a month after the shooting.

But during that trial, one of the jurors, Juror 12, sent a note to the judge asking to be dismissed from the proceedings.

“Judge, I would like to be excused from this case,” the juror wrote. “I just can’t come to a decision on the charges.”

The juror sent the note about an hour and 40 minutes into deliberations. The presiding judge talked to the lawyers in chambers, and agreed that they would dismiss the juror and assign an alternate as long as no verdict had been reached on any counts in the case.

“If no verdict has been reached on any count I think we agreed to excuse Ms. (omitted) and put Mr. (omitted) in her place,” the court record said. “That way we would be guaranteed of one African-American on our jury. Mr. (omitted) would be our remaining alternate.”

Durden’s defense counsel wanted Juror 12 to remain on the jury regardless of whether the jury had already reached a decision on any of the counts; the judge later called in the jury foreman, who said the jurors had reached a verdict on six counts. They hadn’t taken up the murder charge yet, the foreman said.

After further consultation with Durden’s counsel, Juror 12 was dismissed, and the alternate juror assigned in her place. The jury eventually found Durden guilty on all eight counts.

After the guilty verdict, Durden appealed, arguing that the removal of Juror 12 meant he should have a new trial.

The Indiana Court of Appeals agreed, with Judge Elaine Brown saying the trial court failed to question Juror 12 on the record to determine if she refused to deliberate with the other jurors or simply disagreed with them on the verdict.

The decision also noted that the court didn’t question any of the other jurors regarding the potential impact of removing the juror, and the record didn’t show that “Juror No. 12’s removal was accompanied by an instruction that her removal in no way reflected approval or disapproval of the views expressed by her,” something required by Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004).

“With respect to the State’s argument that Durden has not shown how it was impossible for the jury to fairly return a verdict on the law and that his defense counsel agreed to Juror No. 12’s removal, we observe that the Court in Riggs stated that unjustified removal constitutes ‘structural error’ and that ‘it is not up to the parties to show prejudice as to the outcome,’” the ruling said.

“On the record before us, we conclude that Durden has established that reversal is warranted.”

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