On Point: B. Selection process

The Legal Profession Blog reports on an ugly murder case out of New Jersey. Click here. A prosecutor tried to remove a Black prospective juror, F.G., for cause. When the judge ruled against the State, the prosecutor ran a records check on F.G., found a warrant and told the judge. The judge and the prosecutor then decided to dismiss F.G., wish him a good day, and have him arrested outside the presence of the jury pool.

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?”

State v. Patrick D. Zolliecoffer, 2018AP1639-CR, 8/20/19, District 1 (not recommended for publication); case activity (including briefs)

Zolliecoffer challenged two of the State’s peremptory strikes as racially based. On appeal, the State conceded that the circuit court failed to apply the 3-step procedure for analyzing Batson claims, which On Point recently explained here.  Zolliecoffer urged the court of appeals to remand for a new trial. The State sought a remand to apply Batson. Surprise! The State won.

State v. Malcolm J. Sanders, 2019 WI App 52; case activity (including briefs)

Sanders is black, and the DA struck the only black jurors from serving on his case because, even though they said they could be fair, they had had prior bad experiences with police, including being the subjects of racial profiling. Judges Gundrum and Neubauer held that the DA did not discriminate. But in another “must read” dissent, Judge Reilly said:

It is a perversion of justice to accept the reasoning that because we have unfairly treated blacks (or any class of people), we can then use our wrongful acts to prevent blacks from serving on juries. Utilizing our unfair treatment of blacks as a valid “race neutral” reason to keep blacks off juries is itself discrimination. Dissent, ¶16.

State v. John E. Paul, 2018AP1496, 7/11/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Paul had three prior OWIs and was on trial for a fourth, plus the associated PAC charge. During voir dire, the prosecutor told the jury that

the other thing is the prohibited alcohol concentration in this particular case is .02. Now, many of you may have heard of the .08, but in this instance, the prohibited alcohol concentration is .02. Now, is there any person here who thinks it’s unfair that somebody could be prosecuted or convicted of the offense of operating a motor vehicle with a prohibited alcohol concentration of .02 percent or .02 grams per 210—I forgot, but per deciliter of the  defendant’s breath? So it’s a .02 standard. Is there any person here who thinks that would be unfair?

Flowers v. Mississippi, USSC No. 17-9572, 2019 WL 2552489, June 21, 2019, reversing Flowers v. State, 240 So. 3d 1082 (Miss. 2017); Scotusblog page (includes links to briefs and commentary)

The Court reverses Curtis Flowers’ conviction and death sentence and orders a seventh new trial on the ground that the district attorney at his sixth trial (he also prosecuted the other five) exercised at least one peremptory strike with racially discriminatory intent. Three previous convictions were overturned by lower courts because of “numerous instances of prosecutorial misconduct” (that was the first one) “prosecutorial misconduct” (two) and “as strong a prima facie case of racial discrimination” as the Mississippi Supreme Court had “ever seen” (this was trial number three).

State v. Michael Exhavier Dunn, 2018AP783-CR, 4/30/19, District 1 (not recommended for publication); case activity (including briefs).

The lead issues in this appeal are whether the jury pool for Dunn’s trial represented a fair cross section of the community and whether Dunn was denied equal protection when the DA struck 2 of the 3 African-Americans from the 30-person jury pool for his case.

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. R.D.W., Sr., 2018AP351, 6/19/18, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

There were only 3 black jurors among the 25 on the panel for the grounds trial in this TPR cases. The ADA used peremptory challenges to strike all of them. The ensuing Batson hearing concerned only one–Juror 2. As proof of non-discriminatory intent, the DA filed a copy of her NAACP membership card, showed her Coretta Scott King tattoo, and explained why she struck Juror 2.