On Point blog, page 28 of 29
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.
Defendant’s Presence — jury selection.
State v. Larry D. Harris, 229 Wis.2d 832, 601 N.W.2d 682 (Ct. App. 1999).
For Harris: William S. Coleman, SPD, Milwaukee Appellate.
Issue: Whether defendant’s rights to presence and counsel were violated by their absence from at least part of voir dire.
Holding: Defendant has both a nonwaivable statutory right to presence, and also a constitutional right to assistance of counsel, at jury selection.
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Defendant’s presence — dismissal of juror for cause — waiver.
State v. Audrey A. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999).
For Edmunds: Dean A. Strang.
Holding: Edmunds is held to have waived her right to be present when the parties and the court discussed dismissal of a juror for cause. The dismissal is upheld, where the juror conveyed opinions about the case, before hearing all evidence.
Jury – Selection – Bias / Disqualification – Juror’s Prior Criminal Record
State v. Robert A. Mendoza, 227 Wis.2d 838, 596 N.W.2d 736 (1999), reversing State v. Mendoza 220 Wis.2d 803, 584 N.W.2d 174 (Ct. App. 1998)
For Mendoza: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Striking jurors (at state’s request) merely because they have criminal records is “an error of law,” ¶24. The court, however, goes on to review whether each such juror should have been struck for cause.
Jury – Selection – Bias / Disqualification – Doubtful Fairness: Equivocal Expression
State v. James E. Erickson, 227 Wis.2d 758, 596 N.W.2d 749 (1999), on certification
For Erickson: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding: Though a juror gave a seemingly hedged answer (“I think so”) to whether she’d be fair and impartial, the trial court’s refusal to strike for cause is upheld given appellate deference to trial-level determination of no subjective bias. ¶¶37-44.
Jury – Bias / Disqualification — Exposure to Extrinsic Information
State v. Edron D. Broomfield, 223 Wis.2d 465, 589 N.W.2d 225 (1999), affirming unpublished decision
For Broomfield: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether Broomfield was denied fair trial because juror overheard, prior to trial, prejudicial extraneous information relating to Broomfield’s past misconduct.
Holding: Exposure to extrinsic information implicates the rule against verdict-impeachment, R. 906.06(2). The party must first establish by competent testimony three things: extraneous (as opposed to merely deliberative) information;
Jury – Bias / Disqualification – Prospective Juror Familiarity with Theory of Defense
State v. Judith L. Kiernan, 227 Wis.2d 736, 596 N.W.2d 760 (1999), affirming State v. Kiernan, 221 Wis.2d 126, 584 N.W.2d 203 (Ct. App. 1998)
For Kiernan: Chad A. Lanning, Dennis M. Melowski, Barry S. Cohen, S.C.
Issue: Whether prospective jurors who had been part of a jury that two days earlier returned a verdict of guilty in a case involving the same defense attorney,