On Point: 1. Defendant at voire dire

State v. Jeffrey P. Lepsch, 2017 WI 27, 3/31/17, affirming a per curiam court of appeals opinion, case activity (including briefs)

This appeal primarily concerns whether trial counsel was ineffective for failing to: (a) object to the seating of biased jurors, and (b) ensure that the trial court properly administered the oath to the venire panel in Lepsch’s presence.  SCOW holds that none of Lepsch’s jurors were biased, and the venire panel was properly sworn. Thus, no ineffective assistance of counsel occurred. Justice Abrahamson’s concurrence acknowledges Wisconsin law governing juror bias appears inconsistent both internally and with federal case law and strives to harmonize it for the bench and the bar.

State v. Jeffrey P. Lepsch, 2015AP2813-CR, petition for review granted 5/11/16; case activity (including briefs)

Issues (composed by On Point)

Were one or more jurors at Lepsch’s trial objectively or subjectively biased because they did not provide “unequivocal assurances” that they could set aside prior beliefs (about, e.g., the guilt of the defendant and the greater credibility of police) and decide the case solely on the evidence?

Did the prior beliefs of some jurors, and the lack of sufficient inquiry into their ability to set them aside, create an appearance of bias sufficient to deny Lepsch’s due process right to an impartial jury?

Were Lepsch’s rights to be present and to a public trial violated when the prospective jurors were sworn in the jury assembly room, outside the presence of the court and counsel?

Was Lepsch denied due process or the effective assistance of counsel by the trial court’s failure to give him the 7th peremptory strike to which he was entitled and by failing to strike 5 jurors for cause, forcing him to use 5 of his 6 strikes to remove them?

State v. Alexander, 2013 WI 70, affirming an unpublished court of appeals decision, 2011AP394-CR; case activity; majority opinion by Justice Gableman; concurrences by Justice Crooks (joined by Chief Justice Abrahmason and Justice Bradley), Justice Ziegler, and separately by Chief Justice Abrahamson.

This decision is alarming.  During Alexander’s 1st-degree intentional homicide trial, concerns surfaced about whether, due to possible bias, 2 different jurors should continue serving on the case.  

State v. Garren G. Gribble, 2001 WI App 227

For Gribble: Charles B. Vetzner, SPD, Madison Appellate

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,

State v. George S. Tulley, 2001 WI App 236
For Tulley: Patrick M. Donnelly

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.

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: Whether defendant’s rights to presence and counsel were violated by their absence from at least part of voir dire.
Holding: Defendant has both a nonwaivable statutory right to presence, and also a constitutional right to assistance of counsel, at jury selection.
Go to Brief

State v. Audrey A. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999).
For Edmunds: Dean A. Strang.
Holding: Edmunds is held to have waived her right to be present when the parties and the court discussed dismissal of a juror for cause. The dismissal is upheld, where the juror conveyed opinions about the case, before hearing all evidence.