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  • WisBar News
    February
    02
    2012

    Supreme court decides issues on presiding judges and family member jurors

    Joe Forward
    Legal Writer

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    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.

    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 org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    article title 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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