Supreme court decides issues on presiding judges and family member
jurors
All justices agree that a defendant was not entitled to a new trial
where the presiding judge did not remove his daughter-in-law from the
jury pool for cause, but defense counsel used a peremptory
strike to remove her. Nevertheless, judges are urged to give
it more thought in similar situations.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
Feb. 2, 2012
– A defendant who used a peremptory strike during jury selection
to remove the circuit court judge’s daughter-in-law from the jury
pool won’t get a new trial, the Wisconsin Supreme Court recently
concluded.
Defendant Sharon Sellhausen appealed
a jury conviction for battery to a law enforcement officer and
disorderly conduct. She argued the trial judge should have dismissed his
daughter-in-law from the jury pool instead of forcing defense counsel to
use a peremptory strike.
A state appeals court agreed, concluding that “presiding judges
must sua sponte remove their
immediate family members from the panel of potential jurors,” and
use of a peremptory strike did not correct the judge’s error in
failing to dismiss his daughter-in-law.
But in State
v. Sellhausen, 212 WI 5 (Feb. 2, 2012),
the supreme court unanimously reversed the appeals court, concluding
that Sellhausen was not entitled to a new trial and
presiding judges are not sua sponte required to remove immediate family
members from the jury pool.
The supreme court unanimously agreed with the application of State
v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, which held that reversal of a
conviction is not automatically required when a peremptory strike
removes a juror who should have been removed for cause.
There are situations in which a failure to remove a juror for cause
will not be cured by a peremptory strike, the court explained, but this
case does not involve one of them. "In the instant case, the
defendant used a peremptory strike and ended up with a fair, impartial
jury," wrote Chief Justice Shirley Abrahamson in the lead
opinion.
The supreme court rejected the argument that the judge's familial
relationship created a chilling effect. That is, defense counsel argued
he could not fully explore the daughter-in-law’s bias for fear of
offending the judge. The court also rejected the argument that using a
peremptory strike to remove her could have negatively affected the
judge’s impartiality.
“We understand that attorneys fear antagonizing judges,”
the chief justice wrote. “We are not persuaded, however, that the
risk of an adversarial relationship developing between the presiding
judge and defense counsel in the circumstances of the present case is
great enough to warrant reversal absent evidence that a party’s
substantial rights were actually impaired.”
While all justices agreed that a new trial was not warranted, the
justices disagreed on a rule that now urges, but does not require,
judges to use their inherent authority to remove immediate family
members from the jury pool or recuse themselves from the case.
Concurrences
A majority of the court, through a concurring opinion by Justice
Annette Ziegler, adopted a rule that, “to ensure the fair,
efficient, and effective administration of justice, judges should
consider whether they can avoid foreseeable problems by removing their
immediate family members from a panel of potential jurors or recusing
themselves from the case.”
This majority rule adopts Ziegler’s full concurrence in State
v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, a case in
which defense counsel moved to strike for cause the judge’s mother
from a pool of potential jurors, and the motion was denied.
The supreme court ruled the judge’s mother should have been
removed for cause, but split 3-3 on why. The lead opinion, by the chief
justice, rooted the argument in objective bias.
In her concurrence, however, Ziegler said “it is unnecessary for
this court to manipulate this case to fit the law of objective
bias,” concluding judges should use their inherent authority
“to avoid such situations where the recipe for disaster is right
before their eyes.”
Justice Ziegler reiterated the point in Sellhausen, joined by Justices David
Prosser, Patience Roggensack, and
Michael Gableman, meaning a majority of the court wants
judges to consider more carefully the implications of not dismissing
family members from the potential jury pool.
Chief Justice Abrahamson (joined by Justice Bradley), wrote a separate
concurring opinion to argue that the majority’s rule
“provides no legal standard for a circuit court to apply in
exercising its discretion in disqualifying a presiding judge’s
family member juror.”
Abrahamson argued, “Wisconsin circuit and appellate courts will
be, I think, left scratching their heads looking for legal principles to
apply to the facts presented.”
Attorneys
Assistant attorney general Jeffrey Kassel represented the state. Byron
Lichstein of the Frank J. Remington Center, UW Law School, represented
Sharon Sellhausen.
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