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JURY SELECTION PROCESS
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Anonymous Jury
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| Anonymous Jury |
| State v. Sherrie S. Tucker, 2003 WI 12, on certification |
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For Tucker: Paul LaZotte, SPD, Madison Appellate |
Issue/Holding:
¶4. We hold that in accordance with the standard articulated in Britt, if a circuit court restricts any juror information, the court must make an individualized determination that the jury needs protection and take reasonable precautions to minimize any prejudicial effect to the defendant. Therefore, we conclude that the circuit court in this case erroneously exercised its discretion in withholding the jurors' names from the record because it failed to make an individualized determination that the jury needed protection and failed to take reasonable precautions to minimize any prejudicial effect to Tucker. Nevertheless, we further conclude that the error was harmless based on the overwhelming evidence of Tucker's guilt....
¶27. Based on all the above, we hold that when a circuit court restricts any juror information, the court must: (1) make an individualized determination that the jury needs protection; and (2) take reasonable precautions to minimize any prejudicial effect to the defendant, which includes making a precautionary statement to the jury so that the restriction does not negatively reflect on the defendant's guilt or character. The circuit court in this case failed to satisfy this two-prong test; however, the error was harmless in light of the overwhelming evidence of Tucker's guilt.
This was not, strictly speaking an anonymous jury, in that only names and not information was withheld. But due process concerns are raised nonetheless, and anonymous-jury caselaw “is beneficial to our analysis.” ¶11. The court recites the development of this recent trend toward juror anonymity, noting again that serious concerns with respect to presumption of innocence and jury impartiality are implicated by the practice. ¶¶18-19. Therefore, the two-part Britt test is approved: “if a court withholds any juror information, it must both: (1) find that a jury needs protection; and (2) take reasonable precautions to avoid prejudicing the defendant.” ¶19. That test wasn’t satisfied: the trial court indicated that it was using the procedure as a matter of its practice, something inconsistent with the requirement of individualized determination. ¶¶20-21. (Appropriate factors are summarized, ¶22.) And, the trial court failed to take ameliorative action:
¶23 … The circuit court did instruct the jury on Tucker's presumption of innocence and on the State's burden of proving guilt beyond a reasonable doubt. However, we conclude that this instruction, by itself, was insufficient. When jurors' names are withheld, as in this case, the circuit court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant's guilt or innocence. We recognize that in Britt, the circuit court apparently did not give a precautionary instruction to the jury; however, due to the potential for prejudice to the defendant, we conclude that such an instruction is necessary.
But, because evidence of guilt was overwhelming, the error was harmless. ¶26.
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| Anonymous Jury |
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State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, habeas relief granted on other grds., Edward A. Murillo v. Frank, No. 04-2202, 4/1/05 |
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For Murillo: Craig Albee |
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Issue: Whether the trial court erroneously exercised discretion by referring to jurors by number rather than name. |
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Holding: Because of sufficient evidence of gang involvement in this case, juror anonymity was a reasonable precaution. ¶¶27-32
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Batson Issues
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See generally
Snyder v. Louisiana,
USSC Co. 06-10119, 3/19/08 (Court rejects two separately proffered reasons for striking black juror: that the juror
"looked very nervous"; and that the juror had student-teaching obligations:
“The implausibility of this explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed
conflicting obligations that appear to have been at least as serious as Mr. Brooks’.” Comparisons of similar variables
of retained and struck jurors, then, can be highly relevant to Batson analysis.)
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| Selection -- “Batson” Issue |
State v. George
Melvin Taylor, 2004 WI App 81, PFR
filed 4/13/04
For Taylor: Ellen Henak, SPD, Milwaukee
Appellate
Issue/Holding:
¶18.
Accordingly, we must now turn to the Batson challenge itself. Our
supreme court has adopted the Batson principles and analysis. State v. Lamon,
2003 WI 78, ¶22, 262 Wis. 2d 747, 664 N.W.2d 607 (citing State v. Davidson,
166 Wis. 2d 35, 39-40, 479 N.W.2d 181 (Ct. App. 1991)). Lamon
reiterates the three-part, burden shifting analysis set forth in Batson
for the evaluation of such a challenge: [I]n order
to establish a prima facie case of discriminatory intent, a defendant must show
that: (1) he or she is a member of a cognizable group and that the prosecutor
has exercised peremptory strikes to remove members of the defendant's race from
the venire, and (2) the facts and relevant circumstances raise an inference that
the prosecutor used peremptory strikes to exclude venirepersons on account of
their race. Lamon,
262 Wis. 2d 747, ¶28 (footnote omitted). Then, if the trial court finds that
the defendant has indeed established a prima facie case, "the
burden shifts to the State to come forward with a neutral explanation for
challenging [the dismissed venireperson]" and "[t]he prosecutor's
explanation must be clear, reasonably specific, and related to the case at
hand." Id., ¶29 (citation omitted). This step concerns the facial
validity of the prosecutor's explanation. That is, unless the prosecutor
intended to cause a disparate impact with his or her peremptory strike, the
impact itself does not compromise the neutrality of the strike. Id.,
¶30. Finally, after the prosecutor offers a neutral explanation for the strike,
the trial court "has the duty to weigh the credibility of the testimony
and determine whether purposeful discrimination has been established." Id.,
¶32. The defendant has the "ultimate burden" of persuading the trial
court that there was purposeful discrimination. Id. Thus, a
showing of disparate impact is not enough-proof of discriminatory intent or
purpose is essential for a successful Batson challenge. However,
as the decision goes on to note, ¶23 n. 5:once
a neutral explanation has been offered, “and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary issue of
whether the defendant has made a prima facie showing becomes moot.” Hernandez
v. New York, 500 U.S. 352, 359 (1991) (plurality opinion); State v. King,
215 Wis. 2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997). As such, an explicit
trial court finding that a prima facie case had been established is not
necessary for this court to evaluate the rest of the analysis. King,
215 Wis. 2d at 303.
In
this instance, although the court concludes that the burden never shifted to
the prosecutor to provide a gender-neutral explanation (this case involves an
allegation of gender-, not race-, discrimination, but that is a mere detail) it
reaches the merits anyway. The prosecutor’s explanations – that she struck four
male jurors because among other things each had served on a prior jury – “are
reasonable.” ¶23.For an interesting discussion, see Paulino v. Castro, 9th Cir. No. 02-55924, 6/14/04 (among its more important points: prima facie showing of discriminatory intent may be shown by statistical disparity alone -- in this instance, that 5 out of 6 black jurors were struckand that, once the burden has been satisfied, "(w)hat matters is the real reason they were stricken," not the trial court's speculative reason no matter how good it might be). See also U.S. v. Stephens, 7th Cir No. 03-2964, 8/29/05 (re: statistical disparity).
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Selection – “Batson” -- Judge's Failure to Make Detailed Findings |
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State v. Nancy R. Lamon,
2003 WI 78, affirming
unpublished decision of court of appeals, affirmed on habeas review, Lamon v. Boatwright,
7th Cir No. 05-4018, 11/8/06 |
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For Lamon: Timothy A. Provis |
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Issue/Holding:A trial
judge is not required to make detailed findings in ruling on a
Batson issue. ¶76. |
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Selection – “Batson”
-- Race-Neutral Reasons |
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State v. Nancy R. Lamon,
2003 WI 78, affirming
unpublished decision of court of appeals, affirmed on habeas review, Lamon v. Boatwright,
7th Cir No. 05-4018, 11/8/06 |
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For Lamon: Timothy A. Provis |
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Issue/Holding:
That a
prospective juror’s last name “is a well-known criminal name” in the
locality, and the juror’s address is in a high-crime area and has itself
received police contacts are race-neutral reasons for striking the juror.
¶¶80-86. That the prosecutor did not direct individualized questions to
this juror is not conclusive of discriminatory intent. ¶¶88-89. And that
the juror’s employment record was admittedly spotty (“varies”) is
race-neutral. ¶90. |
Batson
involves a three-step process: 1) determination of prima facie
case of discriminatory intent; if so, determination of whether the
prosecutor had a race-neutral justification for striking the juror; 3) if
so, determination of whether purposeful discrimination has been
established. ¶¶27-32. The third step “is the relevant inquiry in this
case.” ¶70. See also dissent, ¶ 101. The long and short of it is that the
3-vote dissent parts company on the way the majority handles this inquiry:¶102. The
majority opinion, however, never decides whether the circuit court
properly exercised its discretion under step three of the
Batson analysis. The majority errs by conflating the second and
third steps of the Batson analysis and by concluding that
the State's satisfaction of step two is sufficient, in and of itself, to
defeat a charge of purposeful discrimination…. See also
¶¶133-34. |
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| Selection -- "Batson" |
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State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03 |
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For Ross: Andrew Mishlove |
Issue/Holding:
¶15. In a challenge to a Batson ruling, we review the trial court's determination as to whether the State had a discriminatory intent as a finding of historical fact, which we shall not disturb unless clearly erroneous. State v. Gregory, 2001 WI App 107, 5, 244 Wis. 2d 65, 630 N.W.2d 711. The methodology we employ is a three-step process that may involve shifting burdens, depending upon the evidence presented. In the first step, the accused must make a prima facie showing that the State acted with discriminatory intent by establishing that it exercised peremptory strikes on the basis of race, gender, or any other prohibited category. State v. Jagodinsky, 209 Wis. 2d 577, 580, 563 N.W.2d 188 (Ct. App. 1997). The trial court may consider all relevant factors in determining whether the accused made a prima facie case. State v. Walker, 154 Wis. 2d 158, 173-74, 453 N.W.2d 127 (1990).
The victims were African-American; the state struck three African-Americans, one Hispanic and three whites; the trial court's ruling that Ross had failed to make a prima facie Batson showing is upheld as not clearly erroneous. ¶¶19-21.
For another summary of the 3-step process under Batson, see Akeem Aki-Khuam v. Davis, 7th Cir. No. 02-1945, 5/8/03. UPDATE: U.S. v. Stephens, 7th Cir No. 03-2964, 8/29/05, taking into account Johnson v. California, 125 S. Ct. 2410 (2005).
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| Selection -- "Batson" Objection |
| State v. Calvin Gregory, 2001 WI App 107, PFR filed 5/10/01 |
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For Gregory: Meredith Ross, LAIP, UW Law School |
Issue1: Whether defendant was entitled to a Batson hearing on the prosecutor’s articulated reasons for striking the lone African-American juror.
Holding1: The prosecutor’s asserted reasons -- concerns about juror’s truthfulness; close proximity of juror’s residence to alleged scene of crime; juror’s own and family member’s involvement with criminal justice system -- were racially neutral. ¶12. |
Issue2: Whether defendant was entitled to a postconviction hearing on the validity of the prosecution’s asserted reasons for striking the lone African-American juror, where those reasons were based on information outside the prosecutor’s personal knowledge.
Holding2: ¶14. Furthermore, we also conclude that a postconviction evidentiary hearing was properly denied because a circuit court's decision on a Batson challenge must be made before the jury is sworn. Furthermore, none of the proffers provided proof that was relevant to the prosecutor's intent when he struck Bell. For example, none of the documents showed the prosecutor had not been told what he represented to the court in the Batson hearing or that he knew any of the information he said he relied on was inaccurate. Instead, most of the materials focused on whether the information he was given was accurate. However, when attempting to prove the reasons given by the prosecutor were pretextual, the focus must be on what the prosecutor knew about the potential juror when he made the strike. Williams v. Chrans, 957 F.2d 487, 491 (7th Cir. 1992). Therefore, if a defendant is attempting to prove the prosecutor's reasons for the strike were pretextual, a defendant must show either that the prosecutor intentionally misrepresented the facts he said he relied on or that he had been told those facts but he knew they were erroneous. Stated another way, even if we were to assume, arguendo, that the prosecutor relied on inaccurate information, it does not necessarily follow that the prosecutor had the intent necessary to sustain a finding of purposeful discrimination. Here, what Gregory sought to prove by his proffers at the postconviction hearing was not relevant to the prosecutor's intent when he struck Bell. See State v. Toliver, 187 Wis. 2d 346, 358, 523 N.W.2d 113, 117 (Ct. App. 1994). Additionally, if counsel for the defense required additional information in order to challenge the prosecutor's statements in the Batson hearing, he should have requested a brief adjournment at that time, fully explaining what he needed and why he needed it in order to complete the Batson hearing. No adjournment was requested here. Therefore, for all the reasons set forth above, we affirm the judgment of the circuit court. Note: As the dissent points out, at least some of the information relied on by the prosecutor seems to be inaccurate, ¶29; and, because the question is whether the strike was purposely discriminatory, when the prosecutor claims to rely on the reports of others, it isn’t possible "to assess the credibility of that prosecutor without evaluating the information on which he or she is relying," ¶25.
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| Selection -- Batson Objection, Timeliness: Prior to Jury's Swearing
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| State v. Dennis Jones, 218 Wis. 2d 599, 581 N.W.2d 561 (Ct. App. 1998)
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| For Jones: Michael S. Holzman
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Issue/Holding:
The State argues that Jones's Batson objection, made after the jury was sworn, came too late. Jones responds that his objection was timely. We conclude that the defendant must make a Batson objection prior to the time the jury is sworn. If the objection is not made until after that time, the issue is waived.
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Bias of Juror
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Criminal Record of Juror
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Bias / Disqualification - Juror's Prior Criminal Record |
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State v. Robert A. Mendoza, 227 Wis.2d 838, 596 N.W.2d 736 (1999), reversing State v. Mendoza 220 Wis.2d 803, 584 N.W.2d 174 (Ct. App. 1998). |
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For Mendoza: Michael K. Gould, SPD, Milwaukee Appellate. |
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Issue/Holding: Striking jurors (at state's request) merely because they have criminal records is "an error of law," ¶24. The court, however, goes on to review whether each such juror should have been struck for cause. One juror had recently pled guilty to misdemeanor possession of cocaine and was waiting to serve his 16-day sentence. This juror, the court holds, was objectively biased, because his "contact with the criminal justice system was recent and continuing." ¶34. The second juror had a 1966 conviction for armed robbery and two, more recent misdemeanors; he evinced "residual hostility" about these experiences, thus establishing objective bias. ¶¶35-36. The third juror, convicted of burglary and sentenced to 18 months in 1994, denied guilt, and was objectively biased: "A person who believes he was once set up and that others are set up for crimes may not be an impartial juror." ¶38. Only the fourth juror - convicted more than 30 years before, and not harboring any apparent negative feelings with the system, isn't deemed biased. ¶¶39-40. (However, the error is deemed harmless.)
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Bias of Juror
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Doubtful Fairness of Juror
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Bias / Disqualification Doubtful Fairness: -- Unequivocal Expression |
| State v. Howard C. Carter, 2002 WI App 55 |
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For Howard: Charles B. Vetzner, SPD, Madison Appellate |
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Issue/Holding: Although review of a trial court’s determination of subjective (non-)bias of a prospective juror is generally deferential, here review is independent “because this is one of those rare situations where the prospective juror's unambiguous response, rather than his demeanor, is the basis of his subjective bias.” ¶10. And, because the juror openly admitted his bias, which was never questioned by the parties, he was subjectively biased as a matter of law.
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Bias / Disqualification -- Doubtful Fairness: Belief Police More Credible |
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State v. Scot A. Czarnecki, 2000 WI App 155, 237 Wis.2d 794, 615 N.W.2d 672 |
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For Czarnecki: Patrick M. Donnelly, SPD, Madison Appellate |
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Issue: Whether the trial court should have granted the defense motion to remove a prospective juror who acknowledged believing that police officers would be more credible than other witnesses. |
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Holding: Juror bias is reviewed with deference to the trial court's resolution. Because police credibility was never at issue, the juror wasn't objectively biased. ¶22. As to subjective bias, the juror made conflicting statements and the finding of the trial court, which was in a better position to make an assessment of the juror's sincerity, wasn't clearly erroneous. ¶23. |
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Go To Brief
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Bias / Disqualification -- Doubtful Fairness: Equivocal Statement |
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State v. Nathaniel A. Lindell, 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500, affirmed on other grounds,
State v. Nathaniel A. Lindell, 2001 WI 108 |
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For Lindell: Russell L. Hanson; Timothy J. Gaskell |
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Issue: Whether the prospective juror's allowing, "I think I could" make a fair determination, established subjective bias. |
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Holding: The trial court's ruling of no subjective bias isn't clearly erroneous. 2000 WI App 180 ¶12. (Note: Contrast, U.S. v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000) (juror's mere assertion would "try" to be fair insufficient to dispel concerns of bias).)
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Bias / Disqualification -- Doubtful Fairness, Generally: Defer to Trial Court -- Need for Precise Questioning |
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State v. Marquis O. Gilliam, 2000 WI App 152, 238 Wis.2d 1, 615 N.W.2d 660 |
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For Gilliam: Robert B. Rondini |
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Issue: Whether the trial court's denial of a motion to remove a juror based on subjective bias was clearly erroneous. |
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Holding: The issue of a juror's subjective bias is reviewed deferentially to the trial court's resolution. Though this case is different from prior cases -- here, "whether the juror has expressed a prejudice or predilection in the first instance" -- "on this issue as well, the circuit court has a better ability than [the appellate] court to assess the juror's response." ¶12. In part because trial counsel's questions to the juror at issue are seen as ambiguous and confusing, the trial court's finding of no bias is sustained: "In order to establish bias, the questions to the jurors must be precise, and ambiguities must be clarified with follow-up questions. That did not happen with respect to Hagen." ¶14. |
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Bias / Disqualification -- Doubtful Fairness: Equivocal Statement -- Deference to Trial Court Finding |
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State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238. |
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For Oswald: James L. Fullin, Jr., SPD, Madison Appellate. |
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Issue: Whether an equivocal declaration of impartiality by a prospective juror is enough to establish subjective bias, given a trial court's finding to the contrary. |
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Holding: The issue of a prospective juror's subjective bias is reviewed on appeal through "a very deferential lens"; an unequivocal declaration of impartiality is not necessary to sustain a finding of no bias. ¶¶6-7 (court implies that only "an intractable bias against" an assertion of a fundamental constitutional right would suffice). |
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Bias / Disqualification -- Doubtful Fairness: Equivocal Statement -- Deference to Trial Court Finding |
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State v. Jimmie R.R., 2000 WI App 5, 232 Wis.2d 138, 606 N.W.2d 196 |
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For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate. |
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Issue: Whether the trial court erred in refusing to strike for cause a potential juror who was equivocal on his ability to be fair. |
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Holding: The trial court did not err in finding no subjective bias. |
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Analysis: When asked if he could listen to the evidence and apply the law, the juror said, "I think I could." Despite his apparent "hesitancy about his ability to serve as a juror in light of his wife's past experience as a sexual assault victim," the court of appeals defers to the trial court's finding of no subjective bias. ¶¶27-28. Of further note: "¶30. We make a final observation regarding this matter based on the steady stream of juror selection cases that come before us. Because lawyers may ask leading questions on voir dire and because they are also skilled in obtaining desired answers, the responses of a prospective juror to such questions are often contradictory, depending on which party is asking the questions. Thus, on appeal, both parties are usually able to point to voir dire answers that support their competing positions regarding the challenged juror. Given this situation, it is all the more appropriate for us to defer to the trial court's better position to assess the prospective juror's credibility and honesty."
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Bias / Disqualification -- Doubtful Fairness: Predetermined Guilt |
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State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207 |
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For Oswald: Jerome F. Buting, Kathleen B. Stilling |
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Issue: Whether prospective jurors' expressions of predetermined guilt established either objective or subjective bias. |
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Holding: Applying a mixed standard of review, the court discerns no bias, in that the strength of these opinions changed during voir dire and, more importantly, because the defense conceded factual guilt. |
| NOTE: This case was reversed on habeas review, Theodore W. Oswald v. Bertrand, 7th Cir. No. 02-2092, 6/29/04; for discusison of that case, go here.
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Bias / Disqualification -- Trial Court Obligation to Conduct Hearing |
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State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207 |
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For Oswald: Jerome F. Buting, Kathleen B. Stilling |
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Issue: Whether the trial court erred in refusing to hold a hearing on juror misconduct when presented with information that at least one prospective juror was discussing the defendant's guilt during voir dire. |
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Holding: Given that the juror indisputably thought the defendant guilty, no hearing was necessary. |
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Analysis: During voir dire, it became apparent that at least several jurors were discussing Oswald's guilt. The trial court denied a defense request to inquire into whether any of the jurors already qualified to serve had been tainted by these discussions. On postconviction motion, Oswald presented one prospective juror (not ultimately seated) who had heard three others, including one who was seated, express opinions that Oswald was guilty and the trial would be a waste of time. ¶¶39-40. This was insufficient, the court of appeals holds, to establish juror misconduct. The postconviction testimony was apparently insignificant because the seated juror had already admitted he was biased and, therefore, his "admissions during voir dire were consistent with the alleged waiting room conversations." (But this is a bit of a non-sequitur: he also told the court that he would set aside his opinion, ¶46, and the postconviction testimony shows that he was less than candid in this respect.) |
| NOTE: This case was reversed on habeas review, Theodore W. Oswald v. Bertrand, 7th Cir. No. 02-2092, 6/29/04.
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Bias / Disqualification -- Doubtful Fairness: Equivocal Expression |
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State v. James E. Erickson, 227 Wis.2d 758, 596 N.W.2d 749 (1999), on certification |
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For Erickson: Glenn L. Cushing, SPD, Madison Appellate |
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Issue/Holding: Though a juror gave a seemingly hedged answer ("I think so") to whether she'd be fair and impartial, the trial court's refusal to strike for cause is upheld given appellate deference to trial-level determination of no subjective bias. ¶¶37-44. |
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Go To SCt Brief
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| Go To COA Brief
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Bias / Disqualification -- Doubtful Fairness: Equivocal Expression |
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State v. Vance Ferron, 219 Wis.2d 481, 579 N.W.2d 654 (1998), affirming, as modified, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997) |
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For Ferron: Jane Krueger Smith |
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Issue: Whether a prospective juror's equivocations during voir dire required that he be struck for cause. |
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Holding: The trial court erred in refusing to strike for cause a potential juror who acknowledged only that he "probably" could set aside his opinion that a truly innocent defendant would testify. |
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Analysis: The trial court determination of juror dismissal for cause based on bias is reviewed deferentially. The court overrules its prior intimation, Nyberg v. State, 75 Wis. 2d 400, 249 N.W.2d 524 (1997), that a trial court must remove a juror upon reasonable suspicion of bias. Instead, bias must be "manifest" before the trial court's determination may be overruled. Thus, a trial court has "broad discretion in this area of law." The court employs a new test for juror bias: "(A) prospective juror's bias is 'manifest' whenever a review of the record: (1) does not support a finding that the prospective juror is a reasonable person who is sincerely willing to put aside an opinion or prior knowledge; or (2) does not support a finding that a reasonable person in the juror's position could set aside the opinion or prior knowledge." Application here: The trial court erred as matter of law in failing to strike the juror. Despite instructional efforts, the juror persisted in expressing a belief that a defendant who fails to testify is guilty. At most, he "probably" could set this opinion aside.. In sum, the juror failed "to indicate a sincere willingness to set aside his bias." The court cautions, however, that its conclusion might be different had the juror's bias not involved "such an essential constitutional right" as the privilege against compelled self-incrimination. And, a three-justice concurrence underscores this point: "We are not here dealing with whether a juror can accept the court's instructions on some mundane area of law. We are dealing with fundamental rights." Bablitch, J., conc. (But the holding also advises circuit courts "to err on the side of striking jurors who appear to be biased," even if the failure to strike would be upheld on appeal.) The court declines the state's invitation to overrule State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), a decision which requires a new trial, "(b)ecause Ferron was compelled to use one of his statutorily granted peremptory challenges to correct the circuit court's error of law."
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Bias / Disqualification - Juror's Equivocations of Fairness
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State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998). |
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For Richard: Robert Henak. |
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(Dicta, fn. 1): Trial court refusal to strike for cause a juror who expressed doubts about her fairness since she'd been assaulted as a child criticized: "we note that the better practice is for the trial court to strike such a prospective juror," citing State v. Ferron, 219 Wis. 2d 481, 495-96, 579 N.W.2d 654 (1998). (But the court granting relief on other grounds, this remark is merely dicta.)
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Employment
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Bias / Disqualification -- Employment by DA's Office |
| State
v. Dale L. Smith, 2006 WI 74,
affirming unpublished
decision
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| For Smith: Allison Ritter
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Issue/Holding:
¶16
The sole question we must address on appeal is whether
Smith was denied the right to an impartial jury by the circuit court's refusal
to strikeCharlotte
for cause. Smith argues that
Charlotte
should have been disqualified as objectively biased
because she was employed by the prosecuting attorney. Essentially, Smith seeks
a per se rule in Wisconsin that employees of the Milwaukee County District
Attorney's Office cannot serve on juries in criminal cases prosecuted by their
employer. Alternatively, the State argues that
Charlotte
did not demonstrate objective bias, and this court
should not create a per se disqualification for such employees.
¶17
We believe in this case, the circuit court reasonably
concluded thatCharlotte
was not objectively biased under the totality of the
circumstances. We further refuse to create a per se exclusion of potential
jurors that are employed by the Milwaukee County District Attorney. In our
view, the exclusion of jurors on the basis of objective bias is best left to
the case-by-case discretion of the circuit court.
Because
there is no per se rule, the issue is necessarily fact-specific:
¶24 In
this case, the State of Wisconsin was represented by the Milwaukee
County District Attorney's Office, located in the Courthouse Complex in
downtownMilwaukee. Charlotte serves as an administrative assistant
for the District Attorney's Office located in the Children's Court Center in Wauwatosa. She does not work on
investigations. Furthermore, the record does not show any indication that Charlotte recognized Harris or vice versa.
There is also no evidence that Charlotte had any contact with Harris, any
prior familiarity with the case, or any work connected to the office in Milwaukee.
¶25 Additionally,
both attorneys pressed Charlotte to consider whether her position as
an administrative assistant for the District Attorney would influence her
decision, and each time she responded unequivocally that she could be fair and
impartial. …
If there are
not any other prosecutor’s offices in the state decentralized same as Milwaukee, this may represent the outer
limit of what is tolerable, as the majority (the court splits 4-3) itself seems
to acknowledge:
¶28 We
fully recognize there may be situations where an employee of the Milwaukee
County District Attorney will be objectively biased. Indeed, "'we caution
and encourage the circuit courts to strike prospective jurors for cause when the circuit courts "reasonably suspect"
that juror bias exists.'" Lindell, 245 Wis. 2d 689,
¶49 (quoting Ferron, 219 Wis. 2d at
495-96).
However, permitting an administrative assistant to serve on a jury who works at
a different office in a different city than the prosecuting office and who
otherwise knows nothing about the case, the defendant, and does not even
recognize the prosecutor is not such an "extreme situation" that we
must conclude the circuit court erred in refusing to strike Charlotte for
cause.
That said, the majority also appears predisposed to reject any
absolute, categorical rules of disqualification.
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/td>
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Exposure to Bailiff (as Potential Witness)
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| Bailiff as Potential Witness |
| State
v. William Troy Ford, 2007 WI 138,
affirming unpublished
decision
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For Ford: Ralph J. Sczygelski
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Issue/Holding:
Belated discovery of the bailiff’s involvement in the charged offense as a possible witness did not,
under the circumstances, cause sufficient prejudice to require mistrial:
¶57 In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury
was unaware of his involvement until the direct examination of the store clerk, and Wolfgram was removed after the
direct examination. Wolfgram therefore had very little contact with the jury after his involvement became known. Thus,
as in Cullen, the jury could have been exposed to Wolfgram's potential influence for only a very limited period of
time.
¶58 Further, this case involves a jury learning that the bailiff talked to a prosecution witness and urged him to
call the police shortly after the crime took place. The potential for prejudice in such a case is no greater than when
it is a juror who knows the complaining witness, as was the case in King.
¶59 Finally, the circuit court took a number of measures to assure that Ford was not prejudiced. It replaced the
bailiff to avoid the possibility that the jurors would inquire about his observations. Because Ford requested that
Wolfgram be subpoenaed as a witness, the court excluded the bailiff from the courtroom and instructed him not to
discuss the case with witnesses.
¶60 More important, the circuit court inquired as to whether the jurors could decide the case fairly and
impartially. …
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Exposure to Extraneous Information by Prospective Juror
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Bias / Disqualification -- Exposure to Extrinsic Information |
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State v. Edron D. Broomfield, 223 Wis.2d 465, 589 N.W.2d 225 (1999), affirming unpublished decision. |
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For Broomfield: Charles B. Vetzner, SPD, Madison Appellate. |
Issue: Whether Broomfield was denied fair trial because juror overheard, prior to trial, prejudicial extraneous information relating to Broomfield's past misconduct.
Holding:
Exposure to extrinsic information implicates the rule against verdict-impeachment, R. 906.06(2). The party must first establish by competent testimony three things: extraneous (as opposed to merely deliberative) information; improper exposure to the jury; potential prejudice. All steps are satisfied here. The information came from a non-evidentiary source (people talking about the defendant's "other bad acts"), and was therefore extraneous. It was improperly brought to the jury's attention, even though only one juror was exposed to it. And, it was potentially prejudicial, since it involved inadmissible character evidence. Having satisfied the competent-evidence test preliminary to impeaching a verdict, two more obstacles stand between Broomfield and the finish line. First, the circuit court must find "clear, satisfactory, and convincing" evidence that the juror heard the statements. The record establishes this showing (the trial court's finding to the contrary deemed clearly erroneous). But after all that, Broomfield's argument falters on the shoals of harmless error, the court concluding no reasonable possibility that this information would have had prejudicial effect on the average juror. The result is, perhaps, limited: the evidence of guilt, the court stresses, was overwhelming and the tainted information wasn't brought up during deliberations. The court also stresses that the information was derived from an overheard conversation - which the court disparagingly compares to "reading information in the newspaper or hearing it on the news." ¶¶19-32. |
Although not raised by Broomfield, the following principle should be kept in mind in case it comes up: Any unauthorized communication between a
juror and a witness or interested party is presumptively prejudicial,
but the government may overcome the presumption by
making a strong contrary showing. ...
The Mattox rule applies when an unauthorized communication
with a juror crosses a low threshold to create the
potential for prejudice. A communication is possibly prejudicial,
not de minimis, if it raises a risk of influencing the verdict.
Prejudice is presumed under these circumstances, and the
defendant’s motion for a new trial must be granted unless the
prosecution shows that there is no reasonable possibility that
the communication will influence the verdict.... Caliendo v. Warden, 9th Cir. No. 01-56946, 4/5/04.
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Exposure to Theory of Defense by Prospective Juror
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Bias / Disqualification -- Prospective Juror Familiarity with Theory of Defense |
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State v. Judith L. Kiernan, 227 Wis.2d 736, 596 N.W.2d 760 (1999), affirming State v. Kiernan, 221 Wis.2d 126, 584 N.W.2d 203 (Ct. App. 1998) |
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For Kiernan: Chad A. Lanning, Dennis M. Melowski, Barry S. Cohen, S.C. |
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Issue: Whether prospective jurors who had been part of a jury that two days earlier returned a verdict of guilty in a case involving the same defense attorney, similar facts, and the same defense theory could objectively set aside their opinion or prior knowledge so as to fairly and impartially decide Kiernan's case. |
Holding: ¶21 ... We must
reverse the decision of the circuit court because we determine as
a matter of law the court could conclude only that the veteran
jurors were objectively biased.7
¶22 The overwhelming majority of jurisdictions, both state
and federal, have concluded that jurors who serve on another jury
involving similar facts and issues need not categorically be
removed for cause solely on that basis. ...
¶23 Moreover, we have been quite hesitant to create classes
of persons that are per se excluded from jury service. ...
¶24 Rather, a party seeking to have that veteran juror
removed for cause will need to make an individualized showing
that the particular juror is objectively biased ....
¶25 We arrive at this conclusion based on the veteran
juror’s statement at voir dire, ... that the juror believed that the Intoxilyzer 5000’s readings would be correct unless it could be shown either
that the machine was operated by an unqualified person or that
the machine failed its self diagnostic check. Three other
veteran jurors concurred in this judgment. ...
¶28 The crux of Kiernan’s defense was that the breathalyzer
rendered an inaccurate reading for reasons other than operator
error or machine malfunction. By their own statements at voir
dire, the veteran jurors had reached a conclusion on that very issue before they heard one sentence of testimony. ...
7 The State contends that the lack of a voir dire transcript
means that we must assume that the veteran jurors maintained that
they could be impartial and the circuit court believed them. We
agree and have done so. However, the State seems to imply that
this ends the inquiry.
The State fails to appreciate, however, that our objective
analysis presupposes that such assurances are present. The
purpose of the objective analysis is to probe beyond what a juror
asserts in order to examine whether reasonable jurors could
actually act in the manner the jurors stated they would act.
The dissent (¶¶36-47) would have overruled State v. Ramos, 211 Wis. 2d 12, 546 N.W.2d 328 (1997)] on the issue of "automatic reversal" (use of peremptory on challenged juror doesn't resolve challenge to juror bias). It should be noted that the dissent ultimately prevailed on this point, in State v. Nathaniel A. Lindell, 2001 WI 108. But there was no dispute (albeit no discussion, either) on the separate "automatic reversal" rule that a biased juror necessarily taints the verdict, without regard to harmless error enalaysis. For an interesting variation on this theme, see, Quintero v. Bell, 256 F.3d 409 (6th Cir. 2001) (counsel's acquiescence in seating of 7 jurors who had convicted convicted co-conspirator of same offense in separate trial, amounted to ineffective assistance; erroneous presence of these jurors "merits a presumption of prejudice" because it "amounted to structural error, which we exempt from harmless error analysis"), affirmed on remand, 368 F.3d 892 (6th Cir. 2004) (relief on ineffective-assistance ground, where "counsel’s acquiescence in allowing seven jurors who had convicted petitioner’s co-conspirators to sit in judgment of his case surely amounted to an abandonment of 'meaningful
adversarial testing' throughout the proceeding, making “the
adversary process itself presumptively unreliable”), see also dissent from denial of certiorari.
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Inaccurate / Misleading Answers on Voir Dire
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Bias / Disqualification -- Inaccurate / Incomplete Response During Voir Dire |
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State v. Carlos Delgado, 223 Wis.2d 270, 588 N.W.2d 1 (1999), reversing State v. Delgado, 215 Wis.2d 16, 572 N.W.2d 479 (Ct. App. 1997) |
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For Delgado: Joseph E. Schubert |
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Issue/Holding: The supreme court reverses Delgado's child sexual assault convictions, because a juror's misleading responses during voir dire indicate her inferred bias against Delgado. During voir dire, the juror failed despite ample opportunity to disclose that she had herself been the victim of a sexual assault as a child. A two-part test applies to this sort of problem: 1) incorrect or incomplete answer to a material question; 2) probability of the juror's bias. The first part of the test is not disputed, leaving potential bias as the only viable issue. Bias may be actual or inferred; the trial court found no actual bias, and the supreme court determines that that finding is not clearly erroneous. But bias may also be inferred and, though the trial court found no inferred bias, that finding is held to be clearly erroneous. Three factors, among others, are relevant to this inquiry: whether the voir dire question was sufficiently precise; whether other jurors' responses would have reasonably put the juror on notice that an answer was required; whether the juror became aware of the misleading nature of his/her answer yet fail to notify the court. The court's analysis is fact-specific, and should be carefully reviewed (the fact-intensive nature of the case itself suggesting the limited nature of the holding). The court stresses that being a victim alone is not enough to establish bias in a sexual assault case. Nonetheless, the charges against Delgado and the juror's "experience of a sexual assault as a child are closely connected." Her experience "understandably might have had a deep and lasting impact on her." She disclosed the information only "in a moment of anger during jury deliberations." Since the "circuit court did not carefully examine these facts and circumstances," its no inferred-bias finding is clearly erroneous. The court of appeals is similarly criticized, for not assessing the circuit courts failure to consider inferred bias.
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One court phrases the test for implied bias this way, Sanders v. Lamarque, 9th Cir. No. 02-56893, 2/3/04:
... "Unlike the inquiry for actual bias, in which we examine the juror’s answers on voir
dire for evidence that she was in fact partial, the issue for
implied bias is whether an average person in the position of
the juror in controversy would be prejudiced.” United States
v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (citations
and internal quotation marks omitted) (emphasis in Gonzalez).
Prejudice will be presumed under circumstances in which “the
relationship between a prospective juror and some aspect of
the litigation is such that it is highly unlikely that the average
person could remain impartial in his deliberations under the
circumstances.” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.
1990) (citations and internal quotation marks omitted). For
instance, federal courts have found implied bias in circumstances
“where the juror is apprised of such prejudicial information
about the defendant that the court deems it highly
unlikely that he can exercise independent judgment even if
the juror states he will,” and “[t]he existence of certain relationships
between the juror and defendant . . . support such a
presumption [of bias].” Id. at 528 (citations omitted). Implied
bias will be found only in “exceptional” or “extraordinary”
cases. Smith v. Phillips, 455 U.S. 209, 222 n.* (1982)
(O’Connor, J., concurring).
When establishing juror bias, “a party must first demonstrate
that a juror failed to answer honestly a material question
on voir dire, and then further show that a correct response
would have provided a valid basis for a challenge for cause.
The motives for concealing information may vary, but only
those reasons that affect a juror’s impartiality can truly be said
to affect the fairness of a trial.” McDonough, 464 U.S. at 556.
Though there is no reason to doubt the continuing viability of Delgado as a matter of state law, a constitutional challenge to incomplete juror answers may raise different considerations and a different result dcespite similar facts. See, e.g., Johnson v. Luoma, 6th Cir No. 04-1518, 10/12/05 (juror's acknowledgement she had previously been crime victim but failure to reveal that she was presently a complainant in a pending DV case not misleading, where questions put to her "so indefinite" and calling "for such subjective responses"). That court also casts doubt on viability of implied-bias doctrine, at least as matter of habeas (therefore, constitutional) review. All of which underscores need for pinpoint, not to say assertive questioning and follow-up on voir dire, so as to isolate issue as matter of state law direct-appeal -- a point otherwise made by State v. Marquis O. Gilliam, 2000 WI App 152, ¶14. Indeed, Johnson cites by way of distinction, Dyer v. Calderon, 151 F.3d 970, 979-84 (9th Cir. 1998) (en banc), an implied-bias case in which the juror lied materially and repeatedly, thus fatally undermining the court's confidence in her ability to decide the case fairly -- a juror's lies with respect to a matter of implied bias, then, may be sufficiently egregious to amount to objective (or actual) bias.
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Bias / Disqualification -- Inaccurate / Incomplete Response During Voir Dire |
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State v. Edron D. Broomfield, 223 Wis.2d 465, 589 N.W.2d 225 (1999), affirming unpublished decision |
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For Broomfield: Charles B. Vetzner, SPD, Madison Appellate |
Issue/Holding: One prospective juror heard, before trial, other prospective jurors describe Broomfield as a "gangster" who beat up kids and was involved in "drive-bys." The juror was chosen for the petit jury; he didn't convey this information to the others, nor was it brought up during deliberations -- The juror's failure to reveal during voir dire what he'd heard did not establish juror bias:
¶14 The proper time to determine whether a juror is
impartial is on voir dire examination. Messelt, 185 Wis. 2d at
267. The voir dire, with its peremptory strikes and strikes for
cause, is the prime instrument of the common law designed to
assure an impartial jury and a fair trial. State v. Shillcutt,
119 Wis. 2d 788, 812, 350 N.W.2d 686 (1984) (Heffernan, C.J.,
concurring). The effectiveness of voir dire, however, is
dependent upon the responses provided by prospective jurors and
there are no guarantees that a juror will respond honestly,
accurately or completely. Messelt, 185 Wis. 2d at 268.
¶15 In State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745
(1985), this court set forth a two-step test to follow when bias
is alleged to have resulted from a juror’s failure to reveal information on voir dire. In Wyss, we held that in order to be
awarded a new trial in such instances, a litigant must
demonstrate:
(1) that the juror incorrectly or incompletely
responded to a material question on voir dire; and if
so, (2) that it is more probable than not that under
the facts and circumstances surrounding the particular
case, the juror was biased against the moving party.
Wyss, 124 Wis. 2d at 726....
¶17 The record reveals that neither the circuit judge nor
the attorneys asked the jury panel if they knew the defendant or
if they knew anything, other than what was explained during voir
dire, about the defendant. Because juror McCann was never
specifically asked, his responses could not have been incorrect
or incomplete. We find that the defendant has failed to satisfy
the first prong of the test in Wyss; accordingly, we will not
address the second prong.
Nonetheless, the information McCann had overheard was extraneous and potentially prejudicial, and he was competent to testify under §. 906.06(2). ¶¶25-26. But, because this information "would not have had a prejudicial effect upon a hypothetical average juror, the conviction is affirmed. ¶¶29-32.
For additional authority to the effect that the purpose of voir dire is "to allow for intelligent exercise of peremptory challenges," see Butler v. City of Camden, 3rd Cir. No. 02-2903, 12/18/03 (further holding that, on facts of case, trial court committed reversible error by foreclosing voir dire inquiry into potential bias in favor of law enforcement).
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Language Comprehension
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| Selection -- Language Comprehension |
State v. Michael W. Carlson, 2003 WI 40, reversing, 2001 WI App 296
For Carlson: Steven L. Miller
Issue/Holding:
¶2. We hold that an ability to understand the English language is necessary in order to satisfy the requirements Wis. Stat. § 756.02 and § 756.04 (1999-2000). If a potential juror indicates on the juror questionnaire that he or she is unable to understand English, his or her name shall be struck from the juror pool. If a juror who does not meet the statutory requirements of Wis. Stat. § 756.02 is impaneled, then the entire trial process may be nothing more than an "exercise in futility." State v. Coble, 100 Wis. 2d 179, 216, 301 N.W.2d 221 (1981) (Coffey, J., concurring).
The facts can’t be concisely recited. The juror said in a pretrial qualification form that he couldn’t understand English. That, as the concurrence shows in a three-paragraph model of brevity, is (or should be, anyway) enough to establish a statutory disqualification. ¶¶52-54. The holding isn’t quite so simple. There was a postconviction hearing at which additional evidence was adduced on the subject of the juror’s facility with English, but with certain evidence disallowed on the ground of improper verdict-impeachment. The majority specifically declines to reach the question of whether this sort of evidence would violate the verdict-impeachment rule. ¶¶26. The majority does, though, otherwise consider the postconviction-hearing facts, namely, quite a bit of embellishment as to the juror’s difficulties with English, ¶¶14-16, which makes the holding more fact-specific than necessary.
Is inability to understand basic legal concepts the same as inability to understand English for purposes of juror disqualification? See Franklin v. Anderson, 6th Cir No. 03-3636, 1/9/06 ("we,
nonetheless, do find that she was not an impartial juror because she demonstrated that she could not
comprehend the legal standard she was supposed to apply").
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Personal Familiarity / Contact with Law Enforcement Personnel
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Bias / Disqualification -- Juror's Close Contacts with Law Enforcement |
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State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238 |
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For Oswald: James L. Fullin, Jr., SPD, Madison Appellate. |
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Issue: Whether prospective juror's equivocations along with close contacts with law enforcement, where the trial involved the death of an officer, established objective bias. |
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Holding: "(E)xclusion of a juror for objective bias requires a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case to be tried or the juror's intractable negative attitude toward the justice system in general," ¶8, none of which are present, ¶¶20-23, under an intermediate standard of deferential review, ¶5. (Note: In a concurrence, Judge Nettesheim reminds trial courts that they should err on the side of caution; warns that the jurors here gave at least the appearance of bias; and admonishes the state and trial court for taking "an unnecessary risk of reversal. ¶¶52-54.)
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Medical Condition of Prospective Juror
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Bias / Disqualification -- Juror Medical Condition, Acknowledged Loss of Concentration -- Deference to Trial Court Finding |
| State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717 |
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For Guzman: Robert E. Haney |
| Issue: Whether the trial court should have struck for cause one juror who acknowledged a medical condition that would prevent him from paying attention and another who acknowledged he wouldn’t be impartial because of lost income. |
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Holding: The trial court’s findings that each juror could be impartial weren’t clearly erroneous. ¶¶14-17. |
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Contact / Familiarity with Victim or Witness
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Impartiality/Bias -- Extensive Contact with Victim |
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State v. Nathaniel A. Lindell, 2001 WI 108, 629 N.W.2d 223, affirming State v. Lindell, 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500 |
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For Lindell: Timothy J. Gaskell |
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Issue: Whether a prospective juror’s long personal familiarity with the victim, including the latter’s long business relationship with the juror and her parents, established disqualifying “objective bias.”
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Holding: ¶48. It is not always enough that a prospective juror assures counsel or the court that he or she will be impartial. Circuit courts are often in a better position to judge whether a prospective juror is biased, or potentially biased, than is the prospective juror. For example, the circuit court will almost always have a better appreciation for the evidence that is going to be presented in the trial than the prospective juror. As the defendant points out, the relationship of D.F. to the victim--as opposed to a witness--meant that D.F. would confront a great deal of evidence concerning Harmacek's death. This evidence was likely to include testimony from a forensic expert, photos of the crime scene, and autopsy photos of the victim. The circuit court was in a better position than D.F. to judge the likely effect of this evidence on her because of her relationship to the victim.
¶49. We take this opportunity to restate that ‘we caution and encourage the circuit courts to strike prospective jurors for cause when the circuit courts “reasonably suspect” that juror bias exists.’ Ferron, 219 Wis. 2d at 495-96. This is a decades-old standard, Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis. 621, 627, 79 N.W.2d 249 (1956), that encourages circuit courts 'to err on the side of striking prospective jurors who appear to be biased, even if the appellate court would not reverse their determinations of impartiality. Such action will avoid the appearance of bias, and may save judicial time and resources in the long run.' Ferron, 219 Wis. 2d at 503 (emphasis added). As Justice William A. Bablitch said in dissent in State v. Louis, 156 Wis. 2d at 486: ‘It is the appearance of partiality that gives great pause. Jurors must not only be fair and impartial; they must also not have a relationship to either side which leaves doubt about their impartiality.’
¶50. Prospective juror D.F. was objectively biased and should have been struck for cause. The facts show that a reasonable person in D.F.'s position could not have remained fair and impartial.
(Note: See ¶¶38-40 for summary of standard of review for objective bias. The court of appeals' holding that objective bias had not been shown is overturned by the result.)
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Bias / Disqualification -- Familiarity with Witness |
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State v. George A. Faucher, 227 Wis.2d 700, 596 N.W.2d 770 (1999), affirming State v. Faucher, 220 Wis.2d 689, 584 N.W.2d 157 (Ct. App. 1998) |
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For Faucher: Suzanne Hagopian, SPD, Madison Appellate |
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Issue/Holding: A juror knew a critical state's witness as a neighbor, and "[knew] she wouldn't lie." When pressed, the juror said he could set aside his personal feelings. The judge refused to strike for cause. The supreme court takes the occasion to revamp the methodology for dealing with juror bias.
Prior terminology - "actual," "implied," "inferred" bias - is out; new phrasing- "statutory," "subjective," "objective" bias - is in. Statutory bias refers to disqualifiers in § 805.08(1); impartiality is irrelevant. ¶26. Subjective bias, closely related to prior actual bias, is "revealed through the words and the demeanor of the prospective juror." ¶27. The trial court's determination of subjective bias is reviewed deferentially. ¶28. Objective bias turns "upon whether the reasonable person in the individual prospective juror's position could be impartial," taking into account facts and circumstances of voir dire and the case itself. ¶29. Objective bias presents a mixed question of law and fact, reviewed with at least some deference to the trial court. ¶¶31-32.
Application to this case: The trial court's finding that the juror could set aside his subjective bias is sustained as not clearly erroneous. ¶55. But the trial court did not go on to make any analysis as to objective bias, and the supreme court holds that "only one conclusion" is possible: the juror was objectively biased (largely because juror strongly believed witness wouldn't lie; and her credibility was critical). ¶57. |
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Go To Brief
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Bias / Disqualification -- State's Witness as Brother-in-Law of Prospective Juror: Statutory Disqualification |
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State v. Scot A. Czarnecki, 231 Wis.2d 1, 604 N.W.2d 891 (Ct. App. 1999) |
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For Czarnecki: Patrick M. Donnelly, SPD, Madison Appellate |
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Issue: Whether a prospective juror who is the brother-in-law of a state witness must be struck for cause as a "relative by blood or marriage to the third degree of a state witness." |
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Holding: Brother-in-law relationship constitutes automatically disqualifying statutory bias. |
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Analysis: A prospective juror was the brother-in-law of the investigating detective. He said, during voir dire, that he'd gauge the detective's credibility the same as any other witness, and the trial court denied Czarnecki's motion to strike the juror for cause. Czarnecki used a peremptory to remove the juror. Existing precedent holds that sibling relationship of juror to state's witness constitutes "implied bias" (in more current parlance: "statutory bias"). State v. Gesch, 167 Wis. 2d 660, 669, 482 N.W.2d 99 (1992). The court of appeals now extends that finding to in-law relationship, because it is a relationship "by blood or marriage to the third degree" (Wis. Stat. § 852.03(2)). The trial court therefore erred in failing to strike the juror for cause.
As it turned out, each side was given one more peremptory than authorized, but the court of appeals refuses to find that this shared windfall cured the error: Czarnecki was still compelled to use a peremptory unnecessarily, and as a result he had fewer peremptories than the state, infringing his right to exercise all peremptories. See State v. Ramos, 211 Wis. 2d 12, 24, 546 N.W.2d 328 (1997) (stressing importance of equal number of peremptories to both sides). The state tries to overcome this problem by arguing that it had to use an unnecessary peremptory after the trial court erroneously refused to strike a biased juror. However, the court of appeals holds this argument waived, in that the state failed to raise the issue of juror bias with a contemporaneous objection. |
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Go To Brief
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Victim-Status of Prospective Juror
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Bias / Disqualification -- Victim's Spouse Sexual Assault Victim |
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State v. Jimmie R.R., 2000 WI App 5, 232 Wis.2d 138, 606 N.W.2d 196. |
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For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate. |
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Issue: Whether the trial court erred in finding no objective bias of a prospective juror whose spouse had been sexually assaulted as a child. |
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Holding: The trial court finding of no objective bias is upheld.
Review is at least relatively deferential, in that the trial court's conclusion of no objective bias "will be reversed only if, as a matter of law, a reasonable judge could not have reached such a conclusion." ¶18. The court canvasses relevant case law, and discerns the following principle: "¶19. From our examination of the supreme court's recent decisions, we conclude that the exclusion of a prospective juror for objective bias requires either: (1) some direct or personal connection between the challenged juror and some important aspect of the particular case, or (2) a firmly held negative predisposition by the juror regarding the justice system that precludes the juror from fairly and impartially deciding the case." Because this juror neither had direct connection to anyone involved in the case nor harbored a firmly held predisposition regarding the justice system, he was not, as matter of law, objectively biased. ¶36.
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Bias / Disqualification -- Prospective Juror as Prior Assault Victim |
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State v. James E. Erickson, 227 Wis.2d 758, 596 N.W.2d 749 (1999), on certification |
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For Erickson: Glenn L. Cushing, SPD, Madison Appellate. |
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Issue/Holding: Argument that juror was objectively biased, because she had previously been sexually assaulted rejected as being too close to form of categorical exclusion. ¶¶45-46. |
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Go To SCt Brief
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Waiver
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Bias / Disqualification -- Prospective Juror's Status as Victim -- Waiver, Failure to Object |
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State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11 |
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For Williams: Steven P. Weiss, SPD, Madison Appellate |
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Issue: Whether the trial court had a sua sponte duty to remove for cause a prospective juror who acknowledged difficulty in putting aside her past experience as a domestic violence victim. |
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Holding: Failure to object waives any issue of juror bias, constraining the defendant to pursue the claim, if at all, via ineffective assistance of counsel. ¶¶19-21. |
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Go To Brief
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Bias / Disqualification -- Waiver, Failure to Object -- Right not Personal to Defendant
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State v. Gary R. Brunette, 220 Wis. 431, 583 N.W.2d 174 (Ct. App. 1998)
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| For Brunette: Kevin Schram
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Issue/Holding:
We conclude, following Olexa, that a defendant waives an objection to a juror's bias if no motion is made to the trial court to remove the juror for cause. However, Olexa does not address Brunette's argument concerning the requirements for a valid waiver: he contends that it must be made personally by the defendant on the record. ...
We conclude that the decision whether to move to strike a potential juror for cause should not be added to those few, fundamental decisions that are reserved personally for the defendant and must be waived personally by the defendant. ...
Trial counsel's failure to move to strike Herrin for cause therefore waives Brunette's right to object to her presence on the jury. However, Brunette may assert a claim of ineffective assistance of counsel based on defense counsel's failure to object to her presence. ...
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Harmless Error
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Theodore W. Oswald v. Bertrand, 7th Cir No. 03-2092, 6/29/04 |
| For Oswald: Jerome Buting |
Issue/Holding:
But even if Oswald is certain to be convicted if he is
retried, this cannot justify our reversing the grant of his
petition for habeas corpus. Even a clearly guilty criminal is
entitled to be tried before an impartial tribunal, something
the jurors in this case may well have failed to understand. ... It
is one of the handful of rights of a criminal defendant that
is not subject to the doctrine of harmless error....
(This holding is directed to demonstrable juror bias; mishandling of peremptories is subject to different considerations, has given rise to a distinct line of caselaw, and is discussed separately, here.)
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Composition of Jury
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Entitlement to / Composition of
– Civil Forfeiture: Environmental Regulations |
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State v. William F. Schweda,
2007 WI 100,
on certification |
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Issue: Whether Wis. Const.
Art. I § 5 guarantees the right to jury trial in an action seeking civil
forfeiture for violations of waste disposal regulations. |
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Holding:
¶3
Applying the
Village Food test, we determine that the claims asserted in the State's
complaint do not give rise to a constitutional right to a jury trial. Common law
nuisance causes of action are not sufficiently analogous to be considered
"essential counterparts" to the modern day regulatory claims asserted here.
Therefore, ECI fails the first prong of the Village Food test because the
claims asserted did not exist, were not known, and were not recognized at common
law at the time the state's constitution was adopted.
Id.,
¶16.
¶4
Our determination, however, does not preclude the constitutional right to a jury
trial in all environmental regulatory cases. Such a right exists if the asserted
claim has an essential counterpart that existed at common law in 1848 and was
recognized as an action at law in 1848.
Id.
…
¶17
While Article I, Section 5 provides that the right "shall remain inviolate," it
does not apply to all matters. Historically, it has been interpreted to apply
only to civil cases.
Dane County v. McGrew, 2005 WI 130, ¶13, 285
Wis. 2d 519, 699 N.W.2d 890;
Bennett v. State, 57 Wis. 69, 74, 14 N.W. 912 (1883). Jury trial in criminal
cases falls under the purview of Article I, Section 7.
¶18
Moreover, Section 5 has been interpreted to mean that the right is preserved to
the extent that it existed at the time of the adoption of the state constitution
in 1848. See McGrew, 285
Wis. 2d 519, ¶15; Town of Burke v. City of
Madison, 17 Wis. 2d 623, 635, 117 N.W.2d 580 (1962). Three cases comprise
this state's recent jurisprudence on the question of when the right to a jury
trial as it existed in 1848 creates a constitutional right to a jury trial in a
contemporary cause of action, State v. Ameritech Corp., 185 Wis. 2d 686,
517 N.W.2d 705 (Ct. App. 1994), Village Food, and McGrew.
…
¶34
This court has demonstrated its wariness of basing a constitutional right to a
jury trial on such a broad analogy. See McGrew, 285
Wis. 2d 519, ¶¶25, 28; Vill.
Food, 254 Wis. 2d 478, ¶¶23-25. We are therefore cautious here as well.
Having "doctrinal roots" in nuisance is not alone sufficient for a modern cause
of action to be "essentially a counterpart" to nuisance actions. We note that a
modern statutory claim may codify a common law nuisance action that existed, was
known, or recognized in 1848 and thereby meet the first prong of the Village
Food test. However, the modern cause of action requires more than a passing
resemblance to the action. As we put it in Village Food, it must be
"essentially [a] counterpart."
Id.,
¶28.
¶35
Here, the causes of action are not essentially counterparts to the public
nuisance actions that existed at common law. A cause of action for public
nuisance requires a showing of substantial and unreasonable harm to interests in
the use and enjoyment of land. See Keeton, supra, at 580. Under
historic common law nuisance, a party should not seek recovery "until an actual
nuisance has been committed, or at all events until it is quite clear that the
[conduct] will inevitably result in a nuisance." George V. Yool, An Essay on
Waste, Nuisance, and Trespass, 95 (1863). Modern environmental regulatory
laws, however, "regulate more subtle and attenuated harms than the common law of
nuisance does; a land use that creates a common law nuisance is thus likely to
be an a fortiori violation of statutory environmental law." Solid
Waste Agency of N.
Cook County v. U.S. Army Corps of Eng'rs,
101 F.3d 503, 505 (7th Cir. 1996).
And just what might be the relevance of
Art. I § 5 to SPD practice? Hard to say, except that you never know. Does, for
example, the broad way we define causation for restitution purposes, coupled
with ultimate reduction to civil judgment, impinge on the right to
civil jury trial determination of
damages? |
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Composition -- Civil Forfeitures
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Dane County v. Kenneth R. McGrew, 2005 WI 130, affirming unpublished decision
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| For McGrew: Rex Anderegg |
Issue/Holding: Wis. Const. Art. I, § 5 preserves a state constitutional right to jury trial for forfeiture violations; however, the panel is comprised of 6, rather than 12, persons. ¶70 n. 1 (Bradley, J., conc.):Applying the Village Food test, there are four justices of the court that conclude that McGrew has a constitutional right to a jury. However, there is a split as to whether the right is to a six- or 12-person jury. Nevertheless, this opinion, together with the dissent, form a majority on the constitutional issue that such a right exists and, at a minimum, it is to a six-person jury.
This decision is not to be read, however, that there is a constitutional right to a six-person jury trial in municipal court. Rather, the right is exercised when upon appeal there is a jury trial in circuit court. See Ogden v. City of Madison, 111 Wis. 413, 87 N.W. 568 (1901) (the constitutional right to trial by jury does not extend to a prosecution for a violation of a city ordinance in municipal court).
The referenced test establishes: ""a party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848[;] and (2) the action was regarded at law in 1848," Village Food, ¶11, as quoted in McGrew, ¶18. McGrew was charged with an ordinance violation of speeding. The McGrew majority held that the claim (of speeding) should be viewed broadly, as a "rules of the road" violation; and, because "rules of the road" existed at common law when the Wisconsin Constitution was enacted in 1848 (even if speeding did not distinctly exist), a right to jury trial for speeding is preserved, ¶¶58-60 (conc. op.).
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Composition -- Criminal -- 12-Person Panel |
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State v. Ronald A. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998), on certification. |
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For Hansford: Suzanne Hagopian, SPD, Madison Appellate. |
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Issue: "(W)hether Wis. Stat. § 756.096(3)(am) [1995-96], which provides for six-person juries in criminal misdemeanor cases, violates art. I, § 7 or art. I, § 5 of the Wisconsin Constitution." ¶1. |
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Holding: Art. I, sec. 7, Wis. Const., guarantees a jury of 12 persons in a criminal trial, including misdemeanors, and the statute is therefore unconstitutional. The state constitution affords greater protection on this point than the sixth amendment. |
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Go To Brief
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Composition -- Criminal -- 12-Person Panel, Waiver of Right to |
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State v. Rodney G. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (Ct. App. 1999) |
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For Zivcic: John J. Carter |
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Holding:: The right to a 12-person jury, announced in State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), "applies only to those cases where the issue was raised before the trial court." In other words, Zivcic's failure to preserve objection to a 6-person panel deprives him of retroactive application of Hansford.
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Peremptory Challenges
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| Peremptory Challenges -- Harmless Error |
| State v. Nathaniel A. Lindell, 2001 WI 108, 629 N.W.2d 223, affirming 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500 |
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For Lindell: Timothy J. Gaskell |
| Issue: Whether a trial court’s erroneous refusal to strike for cause a juror subsequently removed by peremptory strike requires automatic reversal of the conviction.
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Holding: ¶51. Now that we have determined that D.F. should have been struck for cause, we consider the proper remedy for this error. This court's decision in State v. Ramos[, 211 Wis. 2d 12, 24, 546 N.W.2d 328 (1997)] would require that we reverse Lindell's conviction and remand his case for a new trial. Yet, there is no serious argument that the defendant did not commit the offenses of which he was convicted, or that he did not receive a fair trial by an impartial jury. Hence, reversal of Lindell's conviction is counterintuitive and would certainly lead to a costly and time-consuming new trial.
¶52. The harsh reality of this option forces us to reexamine whether the result dictated by the Ramos decision makes sense for our system of justice on an ongoing basis. We conclude that it does not. Consequently, the Ramos decision is overruled.
¶53. We base our decision to overrule Ramos on several factors. First, the Ramos decision neglected to fully describe and analyze long-standing Wisconsin law on peremptory challenges and harmless error. Second, the court read too much into the Supreme Court's decision in Ross v. Oklahoma, 487 U.S. 81 (1988), and did not anticipate the decision in United States v. Martinez-Salazar, 528 U.S. 304 (2000). Third, the court has recognized some disturbing systemic problems that came out of the Ramos decision. Finally, the court has taken significant steps to address the issue of juror bias.…
¶118. Nothing in this opinion changes the fundamental law that an accused is entitled to be tried by an impartial jury. Our decision requires a defendant to make a conscious choice between exercising a peremptory challenge or waiting for a Sixth Amendment challenge after conviction. However, the State must now be more alert and sensitive to a defendant's challenge for cause. Anticipating the defendant's possible strategy, the State has three courses of action: (1) It can join the defendant in urging the court to remove a juror for cause; (2) it can exercise one of its own limited peremptory strikes to remove a juror who should have been struck for cause; or (3) it can do nothing and risk a new trial if an appellate court finds that a biased juror sat on the jury. We think the defendant's right to peremptory challenges will be effectively vindicated when prosecutors have an interest in seeing that jurors biased against the defendant never sit.
¶119. When the Ramos case was argued, the State conceded that situations might arise in which a defendant receives a fair and impartial jury but reversal is nevertheless appropriate. For example, reversal might be appropriate when a circuit court judge repeatedly and deliberately misapplies the law to force a defendant to use peremptory challenges or when the court makes errors that force a defendant to use most or all of his or her peremptory strikes. The State made the same concession in oral argument in this case.
¶120. We conclude that the Ramos case should be overruled because our good intentions did not produce good results. The time has come to acknowledge error and move forward.
But what happens when the right to exercise one or more peremptory challenges is wrongfully interfered with? See People v. Bell, MI App No. 233234, 12/9/03 ("wrongful disallowance of the exercise of peremptory challenges ... was error requiring reversal, even in the absence of a showing of prejudice"; "great weight of federal authority addressing this issue suggests that errors relating to the right to remove juors peremptorily are not subject to harmless error analysis"), although the concurrence expresses grave doubt as to this result, going so far as to ask the Michigan supreme court to reverse the holding. And note this 7th Circuit case on the arbitrary elimination of peremptories, Akeem Aki-Khuam v. Davis, 02-1945, 5/8/03: trial procedure which in effect replaced statutorily-provided peremptories with required showing of race-neutral cause violated due process and equal protection: Petitioner had
a substantial and legitimate expectation that he would
be tried by a jury selected in accordance with Indiana
state law and federal constitutional law, including those
provisions guaranteeing his right to exercise peremptory
challenges. Instead, Petitioner was deprived of his liberty
by a jury whose very creation involved a denial of his
statutory and constitutional rights. Consequently, Petitioner
was denied due process and equal protection of
the law in violation of the Fourteenth Amendment. (Interestingly, the 7th Circuit granted habeas relief without discusison of harmless error.)
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Peremptory Challenges -- Harmless Error |
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State v. Robert A. Mendoza, 227 Wis.2d 838, 596 N.W.2d 736 (1999), reversing State v. Mendoza 220 Wis.2d 803, 584 N.W.2d 174 (Ct. App. 1998). |
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For Mendoza: Michael K. Gould, SPD, Milwaukee Appellate. |
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Holding: The trial court struck four jurors, at the state's request, merely because they had criminal records. "That was an error of law." ¶24. The court, however, goes on to review whether each such juror should have been struck for cause. One juror had recently pled guilty to misdemeanor possession of cocaine and was waiting to serve his 16-day sentence. This juror, the court holds, was objectively biased, because his "contact with the criminal justice system was recent and continuing." ¶34. The second juror had a 1966 conviction for armed robbery and two, more recent misdemeanors; he evinced "residual hostility" about these experiences, thus establishing objective bias. ¶¶35-36. The third juror, convicted of burglary and sentenced to 18 months in 1994, denied guilt, and was objectively biased: "A person who believes he was once set up and that others are set up for crimes may not be an impartial juror." ¶38. Only the fourth juror - convicted more than 30 years before, and not harboring any apparent negative feelings with the system, isn't deemed biased. ¶¶39-40.
This given error doesn't lead to relief. Mendoza argues that the net effect of erroneously striking a juror for cause at the state's behest is to give the state an additional peremptory. The supreme court disagrees. Peremptory challenge is qualitatively different from cause-based challenge. Erroneous dismissal is an error by the court, not a peremptory challenge by a party. ¶¶47-54. The court nonetheless proceeds to discuss the impact of giving the state an extra peremptory. "This case presents the flip side of Ramos: a court's erroneous dismissal of a prospective juror as opposed to a court's erroneous failure to dismiss." ¶57. Courts are encouraged to grant cause-based requests liberally; the failure to follow this admonition resulted in Ramos being deprived his full complement of peremptories. Mendoza, on the other hand, wasn't required to correct an error with a peremptory. ¶58. "We therefore hold that automatic reversal is not required when a circuit court erroneously grants a party's motion to strike a prospective juror for cause. To hold otherwise would undermine our long-standing assertion that circuit court judges should liberally grant requests to strike prospective jurors for cause." ¶63. Mendoza concedes that an impartial jury heard the case, and the error is deemed harmless. |
| Go to Brief
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Peremptory Challenges -- Timing -- Authority to Correct Mistake Between Time Jury Accepted and Sworn -- Harmless Error |
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State v. Carl N. Nantelle, 2000 WI App 110, 235 Wis.2d 91, 612 N.W.2d 356 |
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For Nantelle: William E. Schmaal, SPD, Madison Appellate |
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Issue: Whether a trial court has authority to correct an attorney's mistaken use of a peremptory strike after the jury is accepted by the parties but before it is sworn. |
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Holding: "(A)s a matter of law ... peremptory challenges may not be exercised, and therefore changed, after the parties have accepted the jury." ¶22. (Even if error, it would be harmless.)
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Go To Brief
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Presence at Voir Dire
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Selection -- Presence of Defendant and Counsel at Voir Dire |
| State v. George S. Tulley, 2001 WI App 236 |
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For Tulley: Patrick M. Donnelly
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| Issue: Whether excluding defendant and his attorney from in camera voir dire of several jurors was reversible error. |
Holding: A defendant has both constitutional and statutory rights to be present, with assistance of counsel, at voir dire, and the trial court therefore erred in excluding them from the in camera proceedings. ¶6. However, deprivation of these rights is not subject to automatic-reversal and, largely because the court excluded the jurors interviewed in camera, the error was harmless. ¶11. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999) distinguished.
On-line brief for Harris.)
(Note: Beyond narrowly distinguishing Harris on the facts, the court cites no authority for the idea that denial of assistance of counsel at a critical stage is subject to harmless error analysis.) |
| Go To Brief
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| Selection -- Defendant's Right to Presence |
| State v. Garren G. Gribble, 2001 WI App 227, PFR filed |
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For Gribble: Charles B. Vetzner, SPD, Madison Appellate |
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Issue: Whether the trial court erred in questioning prospective jurors outside the presence of defendant and counsel, on “hardship and infirmity requests” not to serve. |
Holding: Questioning jurors about undue hardships “does not implicate the purposes of voir dire that are the premise for a defendant’s constitutional entitlement to be present with counsel” (namely, introduction to substantive factual and legal issue, and disclosure of information relevant to bias): “We therefore conclude that Gribble did not have a federal or state constitutional right to be present with counsel when the court questioned the prospective jurors to determine whether to excuse or defer service of any under § 756.03.” ¶16. Nor did this procedure violate any statutory right: ¶18 … The legislature could not have intended to require the defendant's presence when the judge or clerk is acting in an administrative capacity under § 756.03. In contrast, the procedure by which a court questions jurors to determine bias under Wis. Stat. § 805.08(1) takes place after the jurors are sworn in, with the jurors and parties present, and involves the judge ruling on objections-that is, functioning in a judicial capacity rather than in an administrative capacity. We conclude that the procedure described in § 805.08(1) is the ‘voir dire of the trial jury’ referred to in § 971.04(c). (Nor is such “hardship questioning” a “proceeding” which must be reported under SCR 71.01(2). ¶19.)
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Selection -- Defendant's Right to Presence
State v.
Larry D. Harris, 229 Wis.2d 832, 601 N.W.2d 682 (Ct. App. 1999)
For Harris: William S. Coleman, SPD, Milwaukee Appellate
Issue/Holding1: A defendant has both a non-waivable statutory (§ 971.04(1)(c)) and constitutional (6th / 14th amendment; Art. I, § 7) right to presence at voir dire; and, because voir dire is a "critical stage" of prosecution the defendant also has the right to representation of counsel. |
Issue/Holding2: Conducting part of voir dire in absence of both defendant and counsel was error, and not subject to harmless error analysis:
This case is substantially different from those applying the “harmless
error” rule for two major reasons. First, a defendant has an absolute right “to
receive a fair trial by a panel of impartial jurors.” ... A potential juror’s subjective bias is
generally ascertained by that person’s “responses and demeanor at voir dire.” ... Unless a
defendant and his or her lawyer are present when potential jurors are questioned,
the subtleties of responses are lost—even if a transcript is made available to the
defendant and defense counsel (this was not done here). ...
Second, “the interplay between potential jurors and a defendant,
while often subtle, is both immediate and continuous.” State v. Garcia-Contreras,
953 P.2d 536, 541 (Ariz. 1998). Here, as in Garcia-Contreras, “[n]o one can tell
what the prospective jurors might have thought when all of the key players were
introduced save the defendant, whose whereabouts were left mysteriously
unexplained” and the “[d]efendant’s absence may have damaged him in the eyes
of the jury—some may have thought he had irresponsibly failed to show up for the
first day of his trial.” Ibid.
Go to Brief
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JURY COSTS
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| Jury -- Costs – § 814.51, Assessed Against State
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| Flottmeyer
and Monroe Co. D.A.’s Office v. Circuit Court for Monroe
Co., 2007
WI App 36
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Issue/Holding1:
Jury fees may be
assessed against the State under § 814.51 for canceling a jury 2 days before the
scheduled trial, notwithstanding that the statutory text refers to “plaintiff”
rather than “State.”
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Martineau
v. State Conservation
Commission, 54
Wis. 2d 76, 79, 194 N.W.2d 664 (1972)
requires that “costs may not be taxed against the state or an administrative
agency of the state unless expressly authorized by statute.” However, the
statutory reference to “plaintiff” is broad enough to encompass the “State,”
¶¶9-13:
¶14 In sum, we conclude
that the term “plaintiff” in Wis. Stat. § 814.51 is an express reference to
the State for purposes of the
Martineau rule
here. Accordingly, we reject the State’s argument that the circuit court lacked
authority to impose jury fees against the State.
A tangential point of possible
parochial interest: what about the Office of the State Public Defender? It’s a
state agency, entitled to sovereign immunity but unlike the “State” in its
prosecutorial modality not a party
to the litigation. The issue was unsuccessfully litigated some time
ago, not necessarily well to be sure, but then again the court’s discussion was
somewhat less than edifying: OSPD
v. Dunn County, 98AP1659. It’s not that
this new case establishes SPD sovereign immunity, but that it keeps the
question alive.
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Issue/Holding2:
The decision to
assess jury fees under § 814.51 is subject to the same discretionary
considerations as the inherent exercise of such authority (see
Patricia O’Neil v Monroe
County Circuit Court,
2003
WI
App 140), ¶16. That exercise was properly made where,
although the prosecutor was informed only on the eve of trial that the
complainant would not appear to testify despite prior assurance, the prosecutor
had not personally spoken with that witness in several months, ¶¶16-24 (the
court of appeals stressing that the trial judge had not assigned personal blame
to the prosecutor but instead faulted the district attorney’s office for not
doing more to keep in contact with the complainant, ¶¶23-24).
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Support for the result is awfully
thin. The complainant said she’d show up and had in fact been served with a
subpoena. What more could the office have d |