Porter trial delayed again

No testimony was heard, no witnesses were called and no evidence was presented before a mistrial was declared in what was expected to be an eight-day murder trial in Owen County.

The trial, which was slated to begin Jan. 20, halted during jury selection after the court was unable to seat enough jurors and has now been rescheduled for July 21.

Quentin Lamont Porter, Jr. is charged with the murder of Malik Darea Sims, whose body was discovered July 15, 2024, off Stephenson Road near the Owen-Monroe county line. Porter was arrested later that month and has been awaiting trial since.

Owen Circuit Court I Judge Don VanDerMoere II declared a mistrial during jury selection after the court was left with two open juror seats and only one potential juror remaining — a shortage he says mirrors the court's previous two jury trials in 2025. While juror shortages marked the court's previous trials, this is the first case in which the issue resulted in a mistrial.

VanDerMoere explained that his staff typically sends out 120 jury questionnaires for each case ahead of potential trials. He said that other counties send out large blocks of more than 500 questionnaires for a six-month period, during which those who have filled out the questionnaire could be called.

"We're actually sending out more questionnaires in a six-month period than some of these surrounding counties," VanDerMoere said. "The jury rules specifically require us to go through the Supreme Court's approved list of potential jurors. Now that draws from all kinds of state agencies and web-based programs — driver's license, voting rolls, taxpayer rolls, those sorts of things. So there's a group of potentially vetted people with contact information and those sorts of things. Some folks ask, 'Well why don't you get some folks off the street?' Well there's a jury rule that prohibits us from just getting bystanders. That's not an option to us by law."

After the questionnaires are sent out, the bailiff goes through the returned questionnaires, screening those who will be summoned for jury duty.

Individuals aged 75 and older are screened out but can opt in to jury duty, and the court can excuse individuals from being summoned for various reasons.

Naturally some are sent back as undeliverable.

"Those are few and far between," VanDerMoere said.

With Porter's case, 120 questionnaires were sent out and a little more than one-third of the questionnaires, or 42, were not returned at all, whether by the post office as undeliverable or by the individual.

"We are under the impression at this time that the folks got the mailers and did nothing with it. So that's a huge block. I mean, that's nearly a third of our jury pool, so we're operating under that, plus dealing with all the paperwork associated with the folks that did show up or did respond," VanDerMoere said. "The court can take some responsibility for those 42 people, and we are going to implement changes in the future that if after the second notice, in a short period of time, if we don't get a response, then we're going to need to send the sheriff out to serve people directly."

Then, as with any case, only a fraction that are not initially screened out are asked to appear through a summons or court order.

In Porter's case, there were 41 potential jurors summoned, and only 31 appeared.

"So now we've got the block of 42 that didn't respond plus now we've got 10 that have already acknowledged the process and then those folks don't show up, and then that is where the contempt comes in. Once the summons, which is a court order to appear at a certain time, at a certain location on a certain date, those folks are potentially subject to a criminal contempt," VanDerMoere said.

He added that the 42 who did not respond to the questionnaire is not as clear cut as to the consequences for not following through.

"That's kind of a gray area as to whether or not those individuals could be held in contempt. It's still part of the system, but because it's a questionnaire versus a summons, we have to deal with that. So that's where we're going to have to adjust in the future," he said.

Throughout the process of voir dire, otherwise known as jury selection, each side, both the state and the defense, have 10 peremptory challenges.

Peremptory challenges must be race neutral, but it allows each party in a trial to remove a prospective juror without stating a reason. Discrimination based on ethnicity or sex is also prohibited. But with peremptory challenges no particular reason has to be given.

"It could be any number of things based on their training or experience, maybe the statements that a potential juror has given," VanDerMoere said. "That's what voir dire is about, trying to figure out, of those folks that show up, who doesn't have an interest, who understands the process, who's willing to have an open mind, who's willing to be fair to the state and the defense."

This does not include the fact that an unlimited number of jurors can be dismissed for cause, which requires proving that a juror is biased. Other for-cause reasons can include stated refusal to follow the law, contradictory statements between the questionnaire and what is said during jury selection, or being related to one of the witnesses in the case.

"So of the 31, in a particular case, now you're narrowing it down to a very small group of folks. In our most recent case, we had two seats open, and we had one potential juror left," VanDerMoere said.

That case was the Porter case, and it did not include having any alternates, which is risky for an eight-day trial.

"I hate to do cases without alternates," Owen County Public Defender Megan Schueler said.

Schueler explained that without an alternate, if a juror has an emergency and is no longer able to hear the case, a mistrial is declared and they have to try the case again.

Taken together, the numbers left little room for error.

Shortage strains resources

"There's always a financial cost," VanDerMoere said of trials.

And with a mistrial, many of the costs will be incurred again when the case goes to trial in July.

VanDerMoere said for his office there is the cost of man-hours, paper, and postage for the juror questionnaires.

In addition, his office still has to reimburse the jurors who showed up for their mileage, pay them for the majority of the day and compensate them for lunch since they were there until the early afternoon.

For the court, just the juror mileage and compensation for the mistrial declared in Porter's case, the known expenses total $1,242.

In addition, those that appeared for their summons are now deferred from jury service for one year, having fulfilled their service obligation.

VanDerMoere, who previously served as Owen County Prosecutor, also addressed the time, energy and resource cost to the attorneys.

"Think of preparing for a big case as the prosecutors. You may take a month or more to really focus on getting all of your witnesses and subpoenas and all of these things together, prepared for trial, and then when somebody's life is potentially hanging on the line, defense attorneys have to do the exact same thing," VanDerMoere said.

He added that it doesn't include other trial preparation such as depositions and discovery motions.

"There's a lot of hours, and then those hours aren't wasted in the investigation, but when you get ramped up, you've spent nearly a month preparing for an eight-day trial, and then it becomes a dud. That's a lot of wasted time," he said.

Schueler also spoke to the time it takes to prepare for trial.

"It literally takes weeks, months to prepare for a trial, but you do a lot of preparation at the last minute just to make sure that you're teed up," she said, which includes going over exhibits, preparing outlines and reviewing juror questionnaires.

And ahead of the new trial date, a lot of the preparation will have to be repeated.

"This isn't something that you do right before trial and then you never have to do again. If the trial doesn't go, that same kind of prep is going to happen again. Now, maybe it won't take as long because you've done the nitty gritty once, but you've got to go through that process again," Schueler said.

Prosecutor Ben Kim also explained the challenges the prosecution faces.

"A mistrial resulting from the lack of a sufficient jury panel results in both financial and time-related costs for the State. In major cases of this size and complexity, trial preparation involves significant coordination and resources. This can include arrangements for expert witnesses, travel and scheduling assistance for witnesses and logistical preparation by law enforcement and office staff. When a trial does not proceed as scheduled, some of those resources must be expended again at a later date," he wrote in an email. "From a time standpoint, this case has required substantial preparation. Prosecutors, investigators and staff have devoted many hours reviewing reports, evidence, recordings and other materials to ensure readiness for trial. Law enforcement officers and analysts from multiple agencies have also adjusted their schedules in anticipation of trial. Witnesses, including civilian witnesses, likewise made arrangements to be available to testify."

In addition, some expert witnesses charge for their testimony and their fees will still be incurred, even when the trial is canceled or postponed.

Schueler also pointed to another cost.

"It's also a huge cost to me for the defendant and their family," she said. "It's the waiting period, the 'Hey your day in court keeps getting delayed.' And if it's not delayed because your case isn't ready because you and your attorney have made this decision, if it's delayed because of things you can't control, that's really difficult. And it's also really difficult for the defendant's family because they're taking days off work. They're trying to be there for their kid or their nephew or their person."

VanDerMoere said that there are trials that he believes will move forward in February, March, April, May and June, which is why the earliest it could be scheduled is in July, which pushes out other cases that may have otherwise been scheduled for that month.

And now, while the parties are available in July, each party has to ensure that all of their witnesses are available for July.

"We could run into issues then," VanDerMoere said.

This was something Kim also cited.

"When a trial is delayed, additional challenges can arise. Rescheduling witnesses, re-coordinating agencies, and re-preparing the case all require significant additional effort and time. Delays can also complicate scheduling and availability issues that affect all parties involved in the process," he wrote in the email.

In addition to creating congestion in the court system, memory deterioration also impacts cases.

"It's a case with age on it. Some folks like that. Some folks don't like that. For the average lay witness, it's only fair that we get the case tried within a year. That is the best case scenario for memories. The longer you go, it could hurt both sides," VanDerMoere said.

It was a concern that Schueler also raised.

"If things are pushed out and pushed out, it could be a huge disadvantage to one side or the other, and sometimes it's great for the defendant if you push things out, and other times it can really cut the other way. You just never know," she said.

She added that for law enforcement officers, it also poses a challenge for them to remember other details that are not in their reports that otherwise would be fresh in their minds.

"Our goal is to move cases forward efficiently and fairly in accordance with the law. Delays unrelated to the merits of a case can make that process more difficult for everyone involved, including the court, the parties, witnesses and the broader justice system," Kim said.

In addition, the sheriff's department has its own expenses with transporting the accused. It also has the challenge of altering the schedule, which can include overtime, in order to ensure coverage for officers called to testify.

"It's a cascading effect that really the width and breadth, I think would be hard to calculate what that is, but it's significant," VanDerMoere said in summary.

Shortage signals broader trend

VanDerMoere pointed to the last three jury trials in his court, which included a Level 4 felony, a Level 1 felony and a murder trial.

Last June, the Level 4 felony had only three potential jurors left after selecting the 12 jurors and two alternates.

In December, a Level 1 felony had only two potential jurors left at the end.

"And then in this most recent case, we had a deficit of jurors. We had no jurors left. We couldn't even fill the 12 slots that were mandatory," VanDerMoere said.

From what he knows, other counties face issues with jury responses too.

"This isn't just an Owen County problem. It seems like a statewide issue, but it's really left to individual counties to figure out a way around that," he said.

In the meantime, his staff will be sending out 200 questionnaires for all Level 1 and 2 felonies and murder.

VanDerMoere sees the lack of response as the biggest challenge.

"That's where I feel like the breakdown is, and I don't have a good answer as to why that's occurring," he said.

He also doesn't think the deficit of jurors in the most recent case, the Porter case, was just bad luck or an unfortunate coincidence.

"I would say it would be [bad] luck that we have that few unavailable in this particular case if our last two juries didn't also have those same number of deficits," he said. "There's something that I'm missing, and I wish I had the answer. But now we're going to spend more money sending more juror questionnaires out to try to get a larger audience. But again, we could run into the same situation."

Shortage spurs possible changes

In addition to sending more juror questionnaires out, there are other changes in the process that VanDerMoere plans to implement to avoid repeating this situation.

"There's not an easy answer, but I think we're going to have to be a little more proactive in shaking the bushes and figuring out why are 42 of you not responding," he said.

He also said there is the potential for delaying the trial by a few hours and sending out officers from the Owen County Sheriff's Department to have those who fail to appear for their summons called in.

"Yes, technically, there is a rule that if you've been summoned and you have that in your hand and you fail to show up, yes, you could be held in contempt," he said.

But he also called it a tenuous situation.

"Do you want to bring in jurors and hold them in contempt and potentially sentence them to 180 days in jail or fine them these exorbitant fees and these sorts of things to just gain compliance with the judicial process? I'm not saying that that would never be available as an option, but it seems like that would be a last resort," he said. "I'm hopeful that tweaking our mechanism for how we bring jurors in will gain some compliance. We certainly don't want to go to that last round of issuing writs for folks, but I've not had this occur in the 20 some odd years that I've been an attorney. In my experience, and I've tried a lot of cases in a lot of different counties in the state, this is maybe a more modern problem, and I don't understand why that is. I fail to understand that, and the burdens that you're putting on all these other folks to just not respond to a jury questionnaire or summons, I'm missing why you would choose to do that."

VanDerMoere said he had to research it, but someone who knowingly misrepresents a material fact on a jury qualification form for the purpose of avoiding or securing service as a juror commits a Class C misdemeanor, which is punishable by up to 60 days in jail.

"I've never heard of somebody doing that and being prosecuted under that, but I'm kind of having to relearn or figure out exactly what the width and breadth of my power is to gain compliance, and in no job do you want to go to the extremes to get that done," he said.

VanDerMoere is reluctant to go to that extreme and hopes that the solution lies in informing the community about why jury service is essential.

"I don't want an article written where the tenor is that VanDerMoere is going to start issuing writs and he's going to have sheriff's officers knock on doors and knock down doors to drag people out. That's not it. This is an effort to educate the public on the importance and necessity of complying with the process," he said.

Schueler also shared her thoughts on why it is important.

"When you're part of society, there are rules. And society provides things to you, you need to give back, and whether you like some aspects or not is not really the question...You also kind of have to follow through on the duty to be a juror in a case so that other people have their rights protected. That's kind of the way I feel like people need to look at it, and it's just a shame that we're not getting that," she said. "Jurors are the backbone of the justice system. I mean, if we don't have enough jurors, we can't have jury trials, and that means we can't dispense justice. Our system will collapse if we do not have jurors. That's how it's set up, at least in the criminal side. So while you may think it's stupid or it's boring or I don't want to do this, you're actually the backbone of a system."

At the end of the day, VanDerMoere hopes that this situation will serve as an educational opportunity for the community to understand the importance of jury duty.

"I think the general public should realize that that is a significant impact on the entire group that's trying to just provide justice in a single case on a single day in single Owen Circuit Court I. We've got another court. We've got other cases... we've got other victims, other defendants that are counting on the court's time to get their cases processed. Everything is important to that person, because that's their case," he said, "and it's a shame that we're finding ourselves in a position — again, it doesn't seem like other counties aren't experiencing these issues, so I feel good in that respect. But I always like to hold Owen County up to a little higher standard that, yeah, we don't have as many of the big county problems because we're a pretty cohesive county. So I don't want to lose that fabric of, in my mind, that it's a cohesive county that's willing to work and do their part to make sure that the county works, but the recent past is starting to just eat at that hope."

Prosecutor Kim issued a reminder that all defendants are presumed innocent unless and until proven guilty in a court of law.