On Point: 25. Jury

State v. Robert L. Brinson, 2010AP001819-CR, District 1, 5/10/11

court of appeals decision (3-judge, not recommended for publication); for Brinson: Paul Bugenhagen, Jr.; case activity

Cautionary instruction cured any potential prejudice from revelation of prior record.

¶16      We disagree.  The trial court instructed the jury several times that it could not consider Brinson’s possible status as a probationer or parolee, or the fact that he spent time in jail,

State v. Robert Lyle Lawver, Jr., 2010AP382-CR, District 4, 5/5/11

court of appeals decision (1-judge, not for publication); for Lawver: Cole Daniel Ruby; case activity

Conviction for disorderly conduct upheld on following facts:

¶9        The pertinent facts include the following.  Lawver was walking at night down an unlit highway, traveling with traffic, so that he would not have been in a position to see motorists approaching from behind him. 

Bobby v. Harry Mitts, USSC No. 10-1000, 5/2/11 (per curiam)

The death penalty may not be imposed when the jury isn’t permitted to consider a verdict of guilt on a lesser included, non-capital offense supported by the evidence, Beck v. Alabama, 447 U.S. 625 (1980). As the Court now notes:

such a scheme intolerably enhances the irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.” Id.,

State v. Michael D. Below, 2011 WI App 64 (recommended for publication); for Below: Joseph L. Sommers; case activity

Below indisputably caused massive injuries that resulted in the victim’s death, albeit after medical staff terminated life support. His reckless acts were therefore a “substantial factor” in, hence caused, her death. He was not entitled to a theory of defense instruction authorizing the jury to acquit him on the basis that the termination of life support was an intervening cause of death.

State v. Darron D. Jackson, 2011 WI App 63 (recommended for publication); for Jackson: Rebecca Lawnicki; case activity

Waiver – Lesser Offense Instruction

The jury convicted Jackson of recklessly endangering safety while armed, which was submitted as a lesser offense of the charged offense, attempted first-degree intentional homicide. Although Jackson did object to the endangering instruction on the ground that it wasn’t supported by the facts,

7th circuit decision

Habeas Review – Inadmissible Evidence – Harmless Error

Error in jury exposure, during deliberations, to inadmissible police report deemed harmless where the report contained merely cumulative information, the trial court gave a curative instruction, and the evidence against Brown was overwhelming.

The standard on direct appeal for measuring reversible error is the familiar Chapman test, whether the error was harmless beyond a reasonable doubt.

Felkner v. Steven Frank Jackson, USSC No. 10-797, 3/31/11

On habeas review under 28 U.S.C. § 2254, the court of appeals failed to give sufficient deference to the state court determination that the prosecutor had race-neutral reasons for striking 2 of 3 black prospective jurors.

The prosecutor struck one juror because she had an MSW, and the prosecutor didn’t like having social workers on the jury;

7th circuit court of appeals decision

Batson Challenge

Scope of the remand inquiry for the government to proffer nonracial justification for striking a minority juror is limited to the original reason offered during voir dire, new post hoc justifications being inadmissible. Miller-El v. Dretke, 545 U.S. 231 (2005), discussed and followed:

… Accordingly, Miller-El II instructs that when ruling on a Batson challenge,

State v. Kelly J. McCredie, 2010AP1179-CR, District 2, 3/2/11

court of appeals decision (not recommended for publication); for McCredie: William E. Schmaal, SPD, Madison Appellate; case activity

For purposes of 3rd-degree sexual assault, § 940.225(3), the actor cannot obtain consent by deceiving the victim as to his true identity. McCredie misled the victim into thinking he was his brother (she was sleeping in a dark room when he suddenly appeared;

court of appeals decision; for Sellhausen: Byron C. Lichstein; case activity

Issues (formulated by On Point):

Whether a trial judge has a sua sponte duty to strike a prosepctive juror who is an in-law of the judge.

Whether defense counsel’s use of a peremptory strike to remove the judge’s in-law renders harmless any error in the judge’s failure to remove that juror.

See prior post for further discussion.