Justices reinstate murder, drug convictions after invited error

The Indiana Supreme Court has overturned a ruling for a convicted murderer to get a new trial and instead reinstated the murder and drug convictions after determining the defendant invited the structural error that compromised his right to an impartial jury.

After hearing evidence in Adrian Durden’s murder and drug trial in December 2016, a Marion Superior Court jury held almost two hours of deliberations before Juror 12 asked to be excused because she “just (couldn’t) come to a decision on the charges.” The court devised a plan in which the juror would be dismissed if no verdict had been reached on any count. If a verdict had been reached, then the court said it would ask the second alternate — who was selected to replace Juror 12 to ensure one juror was black — whether his verdict would be the same on any of the counts that had been decided.

The jury foreman was then brought in, and he indicated the jurors had reached a verdict on six of the eight drug counts against Durden, but deliberations on the murder charge had not yet begun. After further conversations with Durden’s counsel — who had originally stated he wanted Juror 12 to remain if any verdict had been reached — the juror was released and Durden was found guilty as charged.

The Indiana Court of Appeals reversed Durden’s convictions and ordered a new trial in August 2017, with Judge Elaine Brown noting the trial court failed to question Juror 12 on the record to determine if she refused to negotiate further or if she failed to agree with the other jurors. The judge also pointed out that none of the other jurors were questioned on the record about the impact of removing Juror 12, and there was no record of the court instructing the new jury that Juror’s 12 removal was not an approval or disapproval of her views.

The Indiana Supreme Court, however, reinstated Durden’s convictions after finding that his counsel “expressly agreed to the trial court’s constitutionally-defective procedure for removing and replacing a juror after deliberations had begun … .”

In a Wednesday decision that also granted the state’s petition to transfer, Justice Mark Massa identified a spectrum of error ranging from harmless error to fundamental error to, finally, structural error. Durden maintained the removal of Juror 12 was a structural error, and the justices agreed the trial court’s deficient record regarding its concern that Juror 12 was “subverting the integrity of the process” was structural error because of “the inability to measure the error’s effect … .”

However, the justices disagreed with Durden’s contention that structural errors should be exempted from the invited error doctrine. Noting that Durden’s trial counsel did not object to Juror 12’s removal or the removal process, Massa further noted that the attorney “declined ‘any caveats’ or special instructions for the jury and repeatedly assured the court of his approval of the procedure employed, despite its defects.”

“Durden and his counsel were in the best position to observe Juror 12 throughout the trial and to make a reasoned decision whether to keep her on the jury,” Massa wrote. “Based on the record before us, we can only conclude that Durden decided to engage in a rational, albeit unsuccessful, trial strategy.”

The case is Adrian Durden v. State of Indiana, 18S-CR-329.