By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 29, 2010 – A trial court judge must sua sponte remove immediate family members from the panel of potential jurors in cases in which the judge is presiding, the District II Wisconsin appeals court recently held in State v. Sellhausen, 2010AP445-CR (Nov. 24, 2010).

Defendant Sharon Sellhausen appealed a jury conviction for battery to a law enforcement officer and disorderly conduct on the ground that the presiding judge did not remove his daughter-in-law-from the panel of potential jurors. Instead, Sellhausen’s attorney used a peremptory challenge to remove her during voir dire.

Selhausen appealed the conviction judgment, asking for a new trial. The appeals court granted Sellhausen’s postconviction motion based on the reasoning of a Wisconsin Supreme Court case decided just three weeks before Sellhausen went to trial.

In that case, State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, the presiding judge’s mother was on the panel of potential jurors. The defendant’s trial counsel moved to have the judge’s mother removed for cause, but the judge denied the motion.

Trial counsel did not use a peremptory strike to remove her, and she served as a juror at trial. The supreme court unanimously (6-0) agreed that the trial judge in Tody erred in denying the motion, but split 3-3 on the rationale for such a conclusion.

The Tody concurrence focused on a trial court’s duty to “err on the side of striking jurors who appear to be biased” during the jury selection process, but did not hold that judges must remove immediate family members sua sponte in every case.

But in Sellhausen, the appeals court went a step further to conclude that “judges must act sua sponte to remove immediate family members from the panel of potential jurors in each case.” Holding otherwise, the appeals court explained, “would require judges to rule on a party’s motion to strike judges’ immediate family members from the jury pool.”

The judge in Sellhausen addressed the issue of his daughter-in-law to both attorneys, and questioned his daughter-in-law on the issue of impartiality. For this reason, the defense attorney did not move to strike the juror for cause, instead using a peremptory challenge.

Under State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, a judge’s “failure to strike for cause is not prejudicial if a party later uses a peremptory challenge to strike the juror.” But Sellhausen’s trial counsel did not move to strike. Thus, Sellhausen’s peremptory challenge did not correct a trial court error that would trigger Lindell.

On appeal, Sellhausen argued that forcing a lawyer to challenge the judge’s discretion by moving to strike a family member involves a risk of antagonizing the judge. The appeals court agreed.

“[T]he lead opinion in Tody expressed concern about the chilling effect that the mere presence of a judge’s immediate family member might have on trial counsel’s behavior during trial. … Trial counsel may have a legitimate concern that questioning the immediate family member of the judge could look disrespectful or impolite to the jury or that it could elicit a negative reaction from the judge,” the appeals court wrote.

Thus, the appeals court held that presiding judges must not allow family members to be potential jurors. Under Sellhausen, it will always be error if the judge does not remove sua sponte an immediate family member from the jury pool.