On Point: b. Doubtful fairness

State v. Richard Leo Mathewson, 2022AP2124-CR, 6/17/25, District IV (not recommended for publication); case activity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

State v. N.M.A.-S., 2018AP2308-09, 12/17/19, District 1 (1-judge opinion, ineligible for publication); case activity

This TPR case involves a mom with a substance abuse problem and her daughter  who had ingested morphine.  At the trial on grounds, defense counsel asked the jury pool: “Is there anyone that believes that someone who is struggling with an addiction currently is not fit to parent their children?”

Sheboygan County DHHS v. K.N.L., 2017AP2413, District 2, 8/22/18 (one-judge decision; ineligible for publication); case activity

K.N.L. asserts a prospective juror (“Juror J.”) was biased and so the circuit court erred in declining to strike her for cause. Applying Wisconsin’s case law governing jury bias (summarized at ¶¶13-16), the court of appeals affirms the circuit court’s conclusion the juror wasn’t biased and, even if she was, the failure to strike her was harmless as she didn’t end up on the jury because K.N.L. peremptorily struck her.

State v. Ronald Lee. Gilbert, 2016AP1852-CR, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Congratulations to Quarles & Brady, which took this appeal pro bono, for scoring a defense win! Gilbert, who was convicted trafficking a child and related crimes, argued that his trial counsel was ineffective for failing to (1) challenge the admission of cellular phone data testimony, (2) demand discovery before trial, (3) impeach the State’s star witnesses with prior inconsistent statements, and (4) strike a biased juror. Gilbert further alleged that his trial counsel made improper statements during his closing. The court of appeals granted a Machner hearing on all claims except the one regarding juror bias.

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. Neumann, 2011AP1044 and 2011AP1105, on certification from the court of appeals; case activity; majority opinion by C.J. Abrahamson.

In a 94-page decision, including a lone dissent by Justice Prosser, the Supreme Court of Wisconsin has affirmed the 2nd degree reckless homicide convictions of Dale and Leilani Neumann for the death of their 11-year old daughter, Kara, who died of diabetic ketoacidosis caused by untreated juvenile onset diabetes mellitus.  

on review of unpublished decision; case activity

Issues (composed by On Point) 

1. Whether the non-waivable nature of the defendant’s right to personal presence at voir dire, citing, § 971.04(1)(c); State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682 (Ct. App. 1999), extends to examination of a juror for possible dismissal following selection and swearing-in.

2. Whether the trial court properly dismissed two jurors,

court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Alexander: Hans P. Koesser; case activity

Juror Selection / Dismissal – Right to Personal Presence 

A defendant has a non-waivable right to personal presence at voir dire, ¶6 (citing, § 971.04(1)(c); and, State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682 (Ct.