On Point blog, page 1 of 1
SCOW: trial judge’s in-chambers conversation with ailing juror wasn’t a critical stage of proceedings requiring the presence of defense counsel
State v. Robert Daris Spencer, 2022 WI 56, July 6, 2022, affirming in part and reversing in part an unpublished court of appeals decision; case activity (including briefs)
A majority of the supreme court holds that Spencer had no right to be personally present or even to have counsel present when the trial judge decided to dismiss a juror for cause just before deliberations began because the judge’s interaction with the juror wasn’t a critical stage of the proceedings.
SCOW will review trial judge’s ex parte removal of juror during trial
State v. Robert Daris Spencer, 2018AP942-CR, petition for review, and petition for cross review, of an unpublished court of appeals decision, both granted 8/13/21; case activity (including briefs)
Issues presented (composed by On Point from the PFR and cross PFR)
- Was the circuit court’s ex parte voir dire and removal of a juror during trial a structural error requiring automatic reversal, or is it subject to harmless error analysis?
- Did the circuit court improperly consider the race of the defendant and the witnesses in deciding to dismiss juror?
- Is a defendant entitled to a postconviction hearing on an ineffective assistance of counsel claim when the record conclusively shows the claim should be denied?
Challenge to removal of juror forfeited, but Machner hearing required on hearsay issue
State v. Robert Daris Spencer, 2018AP942-CR, District 1, 3/9/21 (not recommended for publication), petition and cross petition for review both granted 8/13/21, affirmed in part, reversed in part, 2022 WI 56; case activity (including briefs)
Spencer challenges the trial court’s decision to dismiss a juror for cause just before deliberations began, but over a dissent the court of appeals holds his claims are forfeited or that any error was harmless. However, Spencer is entitled to a Machner hearing on his claim that trial counsel was ineffective for failing to object to hearsay evidence.
SCOW curtails defendant’s right to be present when a judge questions jurors during trial
State v. Alexander, 2013 WI 70, affirming an unpublished court of appeals decision, 2011AP394-CR; case activity; majority opinion by Justice Gableman; concurrences by Justice Crooks (joined by Chief Justice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. Demone Alexander, 2011AP394-CR, District 1, 5/8/12, WSC rev granted 11/14/12
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.
Dismissal of Juror After Trial Commences
State v. Nikolas S. Czysz, 2010AP2804-CR, District 2/4, 12/1/11
court of appeals decision (not recommended for publication); for Czysz: Dianne M. Erickson; case activity
The trial court properly exercised its discretion under State v. Gonzalez, 2008 WI App 142, 314 Wis. 2d 129, 758 N.W.2d 153, in dismissing a juror on the fourth day of trial after the learning that two of the juror’s sons had been prosecuted by another prosecutor from the same district attorney’s office prosecuting Czysz.