On Point blog, page 25 of 29
Habeas Review: Jury Selection Process
Berghuis v. Smith, USSC No. 08-1402, 3/30/10
Defendants have Sixth Amendment right to impartial jury drawn from fair cross section of community. To establish prima facie violation of this “fair-cross-section,” requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Various methods have been proposed to test underrepresentation,
State v. Alexander Marinez, 2010 WI App 34
court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.
Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:
Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,
State v. David S. Hehn, 2008AP3202-CR, Dist II, 2/8/10
court of appeals decision (3-judge, not recommended for publication); Resp Br; Reply
“Great Bodily Harm”
Instruction defining “great bodily harm” as “serious bodily injury” adequate, under controlling authority of State v. Mahlik D. Ellington, 2005 WI App 243, ¶¶6-10.
Batson Review: Judge May Evaluate Claim without Having Been Present During Jury Selection
Thaler v. Haynes, USSC No. 09–273, 2/22/10 (per curiam)
Nothing in Supreme Court caselaw clearly requires “that a demeanor-based explanation for a peremptory challenge must be rejected unless the judge personally observed and recalls the relevant aspect of the prospective juror’s demeanor.” In other words, there’s no requirement that the judge have been present during jury selection in order to evaluate a Batson claim defended by the prosecutor as based on the juror’s demeanor.
Closing Argument: Prosecutorial Misconduct – Interest-of-Justice Review
State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray
Prosecutorial Misconduct – Closing Argument
Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling:
¶1 State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis. 2d 382,
State v. Donovan M. Burris, 2009AP956-CR, Dist I, 1/26/10, Wis SCt review granted 9/21/10
court of appeals decision (not recommended for publication), reversed, 2011 WI 32; for Burris: Byron C. Lichstein; BiC; Resp.; Reply
Answer to Jury Question – Misleading Definition of “Utter Disregard”
Trial court answer to jury question misleading as to whether jury could consider post-shooting conduct as bearing on “utter disregard” element, entitling Burris to new trial.
State v. Roosevelt M. Williams, 2009AP205-CR, Dist I, 1/26/10
court of appeals decision (not recommended for publication)
Closing Argument – Arbitrary Time Limit
30-minute time limit on defense closing upheld, ¶¶20-24. Moreover, majority not persuaded that closing counsel never had opportunity to make would have persuaded jury, ¶25-26. Judge Fine dissents, stressing significance to trial process of closing argument, ¶¶27-32.
State v. Christopher J. Lesik, 2010 WI App 12, PFR filed
court of appeals decision; for Lesik: Anthony Cotton
Overbreadth challenge to 948.02, sexual assault of a child
Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical,
State v. James D. Miller, 2009 WI App 111
Waiver of Escalona argument; claim of self-defense where crime includes “utter disregard of life” element
Click here for court of appeals decision, PFR filed 8/3/09
(opinion originally issued 4/23, withdrawn 5/12, reissued 5/21, withdrawn 6/12, reissued 7/2. Groundhog Day? Not quite: the withdrawn opinions found that trial counsel was ineffective for not seeking a lesser included instruction to reckless injury, but the new opinion rejects that conclusion)
Pro se
Issue/Holding: State failure to argue,
Jury – Selection – Bias / Disqualification – Exercise of Discretion
State v. Mark H. Tody, 2009 WI 31, reversing unpublished opinion
For Tody: Byron C. Lichstein, UW Law School
Issue/Holding:
¶32 … The correct principle of law that should have guided the circuit court judge is that a circuit court judge should err on the side of dismissing a challenged juror when the challenged juror’s presence may create bias or an appearance of bias.