On Point blog, page 8 of 9
Jury – Selection – Bias / Disqualification – Doubtful Fairness: Unequivocal Expression
State v. Howard C. Carter, 2002 WI App 55
For Howard: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: Although review of a trial court’s determination of subjective (non-)bias of a prospective juror is generally deferential, here review is independent “because this is one of those rare situations where the prospective juror’s unambiguous response, rather than his demeanor, is the basis of his subjective bias.” ¶10. And, because the juror openly admitted his bias,
Defendant’s Presence — Jury Selection
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,
Jury – Selection – Anonymous Jury
State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, habeas relief granted on other grds., Edward A. Murillo v. Frank, No. 04-2202, 4/1/05
For Murillo: Craig Albee
Issue: Whether the trial court erroneously exercised discretion by referring to jurors by number rather than name.
Holding: Because of sufficient evidence of gang involvement in this case,
Jury – Selection – “Batson” Objection
State v. Calvin Gregory, 2001 WI App 107, PFR filed 5/10/01
For Gregory: Meredith Ross, LAIP, UW Law School
Issue1: Whether defendant was entitled to a Batson hearing on the prosecutor’s articulated reasons for striking the lone African-American juror.
Holding1: The prosecutor’s asserted reasons — concerns about juror’s truthfulness; close proximity of juror’s residence to alleged scene of crime; juror’s own and family member’s involvement with criminal justice system —
Right to Be Present – Voir Dire
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.
Jury – Selection – Bias / Disqualification – Doubtful Fairness: Belief Police More Credible
State v. Scot A. Czarnecki, 2000 WI App 155, 237 Wis.2d 794, 615 N.W.2d 672
For Czarnecki: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the trial court should have granted the defense motion to remove a prospective juror who acknowledged believing that police officers would be more credible than other witnesses.
Holding: Juror bias is reviewed with deference to the trial court’s resolution. Because police credibility was never at issue,
Jury – Selection – Bias / Disqualification – Doubtful Fairness: Equivocal Statement
State v. Nathaniel A. Lindell, 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500, affirmed on other grounds, State v. Nathaniel A. Lindell, 2001 WI 108
For Lindell: Russell L. Hanson; Timothy J. Gaskell
Issue: Whether the prospective juror’s allowing, “I think I could” make a fair determination, established subjective bias.
Holding: The trial court’s ruling of no subjective bias isn’t clearly erroneous.
Jury – Selection – Bias / Disqualification — Doubtful Fairness, Generally: Defer to Trial Court — Need for Precise Questioning
State v. Marquis O. Gilliam, 2000 WI App 152, 238 Wis.2d 1, 615 N.W.2d 660
For Gilliam: Robert B. Rondini
Issue: Whether the trial court’s denial of a motion to remove a juror based on subjective bias was clearly erroneous.
Holding: The issue of a juror’s subjective bias is reviewed deferentially to the trial court’s resolution. Though this case is different from prior cases — here, “whether the juror has expressed a prejudice or predilection in the first instance”
Jury – Selection – Bias / Disqualification — Doubtful Fairness: Equivocal Statement — Deference to Trial Court Finding
State v. Jimmie R.R., 2000 WI App 5, 232 Wis.2d 138, 606 N.W.2d 196
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue: Whether the trial court erred in refusing to strike for cause a potential juror who was equivocal on his ability to be fair.
Holding: The trial court did not err in finding no subjective bias.
When asked if he could listen to the evidence and apply the law,
Jury – Selection – Bias / Disqualification – Doubtful Fairness: Predetermined Guilt – Trial Court Obligation to Conduct Hearing
State v. Theodore Oswald, 2000 WI App 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling
Issue: Whether prospective jurors’ expressions of predetermined guilt established either objective or subjective bias.
Holding: Applying a mixed standard of review, the court discerns no bias, in that the strength of these opinions changed during voir dire and, more importantly, because the defense conceded factual guilt.