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  • WisBar News
    January
    29
    2013

    Seating Wrong Juror Did Not Violate Defendant’s Constitutional Rights

    Joe Forward
    Legal Writer

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    Jan. 29, 2013 – A summons for jury duty can cause problems for fathers and sons who have the exact same name, live together, and have the same phone number. But a resulting conviction won’t necessarily be overturned if the wrong person shows up for jury duty.

    Defendant Jacob Turner, convicted for strangulation and suffocation, found that out recently when a state appeals court rejected his argument that seating a juror who had not been summoned for service violated his due process rights and his right to an impartial jury.

    “Like the circuit court, we do not see what difference the innocent error of the son serving instead of his father would have made on the outcome of this case,” wrote District II Appeals Court Judge Paul Reilly for a three-judge panel in State v. Turner, 2012AP297-CR (Jan. 23, 2013).

    The appeals panel explained that a rational jury would have convicted Turner, absent the son innocently and unknowingly serving on the jury in place of his father. And Turner offered no proof that he would have struck the son from the jury if he knew about the error.

    Turner also argued that the son demonstrated a lack of candor by not volunteering doubts about whether he was the actual juror summoned for duty. “We are not persuaded that Turner’s tenuous argument for ‘lack of candor,’ supports a new trial when Turner alleges no bias, untruthfulness, or even innocent misstatement by the son,” Judge Reilly wrote.

    Finally, the court recognized that criminal defendants have a right to be present at trial under both the U.S. and Wisconsin constitutions, but rejected Turner’s argument that this right was violated when the circuit court held a post-trial hearing with the father and son.

    Turner said he may have uncovered additional evidence by questioning the father and son directly. However, Turner did not summon either of them at his post-conviction hearing.

    “We find that the error by the court in holding the evidentiary hearing without the presence of the State and the defendant was harmless,” Judge Reilly wrote.