On Point: B. Selection process

Who wants to preserve a really provocative issue at their next trial? The Unconstitutionality of Criminal Jury Selection, by Brittany Dietch, a Harvard Law fellow, argues that because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power.

State v. Brad L. Conger, 2017AP860-CR, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Brad Conger went on trial for an OWI and the associated PAC. His defense was an “alcohol curve” theory that the breath tests result did not reflect his true BAC at the time he was driving. His attorney moved to strike a juror who sat on another OWI/PAC case the preceding week–one featuring the same defense attorney, where the jury convicted on the PAC and apparently rejected the offered alcohol curve defense. The circuit court found the juror unbiased; the court of appeals now affirms.

Read this new opinion from the District of Columbia Court of Appeals.  It reversed a trial court decision to strike a potential juror for cause because she expressed a belief that the criminal justice system is biased against black men. According to the court of appeals, our justice system is biased, and jurors having this belief will likely try harder to be fair. Consider the possibilities for your next voir 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.

Miguel Angel Peña-Rodriguez v. Colorado, USSC No. 15-606, 2017 WL 855760 (March 6, 2017), reversing Peña-Rodriguez v. People, 350 P.3d 287 (Colo. 2015); Scotusblog page

Every state and federal jurisdiction has some version of the “no-impeachment rule,” which, after a verdict is received, bars an aggrieved party from presenting testimony by jurors regarding the jury’s deliberations. SCOTUS has twice upheld such rules against constitutional challenge, while allowing that there could be certain cases in which refusing to permit such testimony would be too harmful to justice. The court now decides that the no-impeachment rule must give way to the Sixth Amendment right to an impartial jury where “a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.”

Foster v. Chatman, USSC No. 14-8349, 2016 WL 2945233 (May 23, 2016); reversing an unpublished order of the Supreme Court of Georgia; Scotusblog page (includes links to briefs and commentary)

Timothy Foster, who is black, was convicted of murder and sentenced to death by an all-white jury. Long after his conviction, his attorneys obtained documents from the prosecutors’ files showing their heavy reliance on race in deciding which jurors to strike. Seven of the eight justices now side with Foster and reverse the state courts’ rejection of his habeas claim under Batson v. Kentucky, 476 U.S. 79 (1986).

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?

Racine County Human Services Dep’t v. L.H., 2015AP1872, 3/23/16, District 2 (1-judge opinion; ineligible for publication); case activity

During the fact-finding stage of L.H.’s TPR trial, counsel (1) failed to object to evidence that L.H’.s child, C.M., had bonded with his foster parents; (2) failed to object to an inaccurate 5/6ths verdict instruction; and (3) and agreed to only 3 peremptory strikes though L.H. was entitled to 4. The court of appeals nevertheless upheld the order terminating L.H.’s parental rights.

State v. Todd Brian Tobatto, 2016 WI App 28; case activity (including briefs)

The news, in this otherwise run-of-the-mill case, is the standard of review. 

The Marshall Project offers an interesting analysis of Foster v. Chatman, a case that SCOTUS on Monday. Hopefully, the decision will give defense lawyers betters tools for proving that the prosecution engaged in racial discrimination during jury selection. Click here for the Marshall Project’s analysis. And here is SCOTUSblog’s report on the actual argument.