On Point: B. Selection process

Clark v. Mississippi, USSC No. 25-6846, 6/8/2026, denying petition for certiorari; Scotusblog page (with links to briefs and commentary)

SCOTUS denied Tony Terrell Clark’s petition for a writ of certiorari from the Mississippi Supreme Court’s decision affirming his conviction at a capital trial.  Clark argued he received ineffective assistance of counsel during jury selection because his trial lawyer did not adequately raise a Batson challenge when the State struck black jurors at a rate five times more than white jurors.  Justice Sotomayor joined the Court’s decision to deny certiorari because Clark did not argue his counsel’s performance was deficient, but explained in an accompanying statement why the Court needs to address the conflict among state and federal courts regarding the standard to evaluate prejudice for a Batson claim.

Pitchford v. Cain, USSC No. 24-7351, 5/28/2026, reversing 126 F. 4th 422 (5th Cir. 2025); Scotusblog page (with links to briefs and commentary)

Batson v. Kentucky held that the Equal Protection Clause prohibits prosecutors from exercising peremptory challenges based on race.  A three-step process is used to implement Batson.  First, the defendant must make a prima facie case that a peremptory strike was based on race.  If the defendant meets this burden, the state must provide a race-neutral reason for the challenged strike.  The defendant may then rebut the prosecutor’s race-neutral reason by showing it was pretextual.

SCOTUS held, in a 5-4 decision, that the Mississippi Supreme Court unreasonably applied Batson when it affirmed the defendant’s conviction for murder after the trial court did not address whether the prosecutor’s proffered race-neutral bases for striking four of five potential black jurors were pretextual.  The Court also found the Mississippi Supreme Court unreasonably determined the facts because it concluded the defendant waived his Batson challenge even though he was not provided an opportunity to rebut the state’s proffered race-neutral explanations and was later assured by the trial court that his Batson objection was preserved for the record.

State v. Richard Leo Mathewson, 2022AP2124-CR, 6/17/25, District IV (not recommended for publication); case activity

COA holds that prospective juror’s equivocal answers during voir dire regarding bias against defendant charged with sexual assault of a child is not sufficient to overcome presumption that juror is impartial.

State v. Nicholas J. Bergner, 2024AP1875, District I, 6/3/25 (one-judge decision; ineligible for publication); case activity

The COA affirmed the circuit court’s order denying Nicolas Bergner’s postconviction motion for a new trial.  Although the circuit court did not follow the procedure required by SCOW in Tucker for using a numbers-only jury selection process, to which trial counsel did not object, Bergner was not prejudiced.

State v. Heather L. Westrich, 2022AP2001-CR, District 4, 05/25/23 (one-judge opinion, not eligible for publication); case activity (including briefs)

In State v. Lindell, 2001 WI 108, ¶¶42-43, 245 Wis. 2d 689, 629 N.W.2d 223, the court held a prospective juror to be objectively biased because she knew the victim for 20 years, her parents knew the victim for about 47 years, and she described the victim as a “close friend.” Apparently, a friend “back in the day” isn’t a close friend and doesn’t render a juror objectively biased. (Op., ¶¶14-15).

State v. C.B. & State v. N.M.M., 2022AP906 & 966, 11/29/22, District 1 (one-judge decision; ineligible for publication); case activity

C.B. and N.M.M. appeal the termination of their parental rights. They challenge the method the Milwaukee Clerk of Courts used to select the venire for their trial: drawing from a pool of “reserve jurors” and selecting those whose surnames began with “G” and “H.” They further request a new trial because there were no African Americans on the panel.

State v. Robert Daris Spencer, 2022 WI 56, July 6, 2022, affirming in part and reversing in part an unpublished court of appeals decision; case activity (including briefs)

A majority of the supreme court holds that Spencer had no right to be personally present or even to have counsel present when the trial judge decided to dismiss a juror for cause just before deliberations began because the judge’s interaction with the juror wasn’t a critical stage of the proceedings. 

State v. Robert Daris Spencer, 2018AP942-CR, petition for review, and petition for cross review, of an unpublished court of appeals decision, both granted 8/13/21; case activity (including briefs)

Issues presented (composed by On Point from the PFR and cross PFR)

1.  Was the circuit court’s ex parte voir dire and removal of a juror during trial a structural error requiring automatic reversal, or is it subject to harmless error analysis?
2. Did the circuit court improperly consider the race of the defendant and the witnesses in deciding to dismiss juror?
3. Is a defendant entitled to a postconviction hearing on an ineffective assistance of counsel claim when the record conclusively shows the claim should be denied?

State v. Oscar C. Thomas, 2021 WI App 55; Review granted 1/11/22; affirmed 2/21/23; case activity (including briefs)

This is the appeal from Thomas’s second conviction at trial for the false imprisonment, sexual assault and murder of his wife. (The first conviction was ultimately undone by the Seventh Circuit, which held that his counsel had been ineffective for failing to seek out certain expert testimony.) Thomas raises three issues. He claims he was convicted of the sexual assault count in violation of the corroboration rule, because the only evidence it occurred was his own confession. He also says all three convictions were obtained in violation of his right to confrontation, as the state introduced a hearsay lab report concerning DNA evidence during cross-examination of his expert. And he argues one of the jurors was objectively biased because she at least believed she was a cousin of one state’s witness. The court rejects all three claims.

State v. David Gutierrez, 2020 WI 52, reversing in part a published court of appeals opinion, 6/3/20; case activity (including briefs)

In a 5-0 decision, SCOW affirms all parts of this published court of appeals decision but one. The court of appeals held that the circuit court erred in refusing to admit evidence that excluded Gutierrez as the source of male DNA in the underwear and around the mouth of a victim of child sexual assault. The assaults involved oral sex and attempted vaginal intercourse. SCOW reversed the court of appeals on that point.