Wisconsin Supreme Court divided on correct test to apply in juror bias case

By Joe Forward, Legal Writer, State Bar of Wisconsin

July 21, 2011 – A jury convicted David Funk for sexually assaulting a child. After trial, he learned one of the jurors was sexually assaulted as a child, and moved for a new trial. But the Wisconsin Supreme Court, in a 4-3 decision, ruled that Funk won’t get one.

The record did not support a conclusion that one juror was objectively and subjectively biased, the majority ruled in State v. Funk, 2011 WI 62 (July 8, 2011), which reversed the appeals court. Thus, Funk’s constitutional right to an impartial jury was not violated, the majority ruled.

But Justice David Prosser, who joined Chief Justice Shirley Abrahamson and Justice Anne Walsh Bradley in dissent, stated simply: “This case presents a classic example of objective bias.”

Questioning at voir dire

One juror (Tanya G.) had been sexually assaulted by her bus driver at the age of 10. Her sisters were also sexually assaulted by the bus driver around the same age. At the age of 17, she was sexually assaulted and testified in a preliminary hearing against the offender. Funk was charged with sexually assaulting a 10-year old girl, his girlfriend’s daughter.

Tanya G. did not disclose these occurrences during voir dire, although certain questions led other jurors to disclose that they, or someone they knew, had previously been sexually assaulted. Neither side asked directly whether any juror was a victim of sexual assault.

But the jurors were asked if they ever testified in a criminal proceeding. To this, Tanya G. remained silent. At a post-conviction hearing, Tanya G. consistently denied that her prior sexual assault experiences created a bias against Funk. But no party asked why Tanya G. did not respond when asked if any juror had ever testified in a court proceeding.

Incorrect response to a material question

In determining whether Tanya G. was biased against Funk, the supreme court majority employed the two-step test developed in State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985), noting that a litigant must prove, “that the juror incorrectly or incompletely responded to a material question on voir dire” and if so, “that it is more probable than not that under the facts and circumstances [of the] case, the juror was biased against the moving party.”

The circuit court concluded that Tanya G. did not respond to a material question at voir dire – whether she had previously testified at a criminal proceeding – implying an incorrect answer.

In an opinion by Justice Patience Roggensack, the supreme court majority ruled that Tanya G. did indeed respond incorrectly (by remaining silent) to a material question, but the record was insufficient to conclude that she was subjectively or objectively biased against Funk.

Tanya G’s incorrect response was material, the court explained, because a correct answer “may have led to further questioning that would have provided a valid basis to challenge for cause.” The majority then examined whether Tanya G. was subjectively or objectively biased.

Subjective bias

Both the circuit and appeals courts concluded that Tanya G. was subjectively biased against Funk, which violated his right to an impartial jury. But the supreme court majority reversed those conclusions, countering the trial court’s subjective bias analysis.

Under State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), the majority explained, “[t]he inquiry into whether a juror is subjectively biased is focused on the juror’s specific state of mind,” and a juror “may reveal his or her subjective bias through words, namely his or her explicit assertion of bias or partiality, through demeanor, or through a combination of the two.”

The circuit court found it “exceptionally difficult” to conclude that someone in Tanya G.’s position could not be subjectively biased, the majority noted, but that was the wrong basis on which to make that conclusion.

“Assessing what someone in Tanya G.’s position could or could not have done is not the correct standard on which to decide whether a juror is subjectively biased,” Justice Roggensack wrote.

The majority noted that subjective bias “must be based on factual findings that show the specific juror’s state of mind,” that is, through words or demeanor, and the circuit court’s conclusion was not supported by facts on the record.

The majority explained that Tanya G. consistently asserted that her prior experiences as a victim of sexual assault did not interfere with her ability to be impartial towards Funk.

The majority also noted that the circuit court did not explain how Tanya G.’s demeanor demonstrated subjective bias, and no one asked her (at the post-conviction hearing) why she remained silent when asked if ever a witness in a criminal proceeding at voir dire.

Objective bias

The supreme court majority also rejected conclusions by the circuit and appeals courts that Tanya G. was objectively biased, which led the leading dissent by Justice Bradley.

The majority explained that under Faucher, objective bias “exists when a reasonable person in the juror’s position could not be impartial.”

It then examined the circuit court’s conclusions under a three-factor test first adopted by the Wisconsin Supreme Court in Wyss. Under the Wyss test, courts consider the following factors:

(1) Did the question asked sufficiently inquire into the subject matter to be disclosed by the juror; (2) were the responses of other jurors to the same question sufficient to put a reasonable person on notice that an answer was required; (3) did the juror become aware of his or her false or misleading answers at anytime during the trial and fail to notify the trial court?

First, the majority concluded that since no party asked directly whether any juror was a victim of sexual assault, there was not a sufficient inquiry into the subject matter to be disclosed. Here, the majority explained, Tanya G.’s “position” cannot be determined. Thus, it would be impossible to weigh whether a reasonable person could be impartial if in her “position.”

And nobody asked Tanya G. why, at the post-conviction hearing, she remained silent when asked if she ever testified at a criminal proceeding. Again, the majority explained, absent an answer to the question, Tanya G.’s “position” cannot be ascertained from the record.

“In other words, we are unable to place a ‘reasonable person’ in Tanya G.’s ‘position’ because we do not know the relevant factors that relate to her ‘position,’” Justice Roggensack wrote.

Considering the second factor of Wyss, the majority concluded that other juror responses to the question about whether anyone had previously testified in a criminal proceeding “would have put a reasonable person in Tanya G.’s position on notice that she should have disclosed her prior testimony.” But neither party asked why she did not respond, and “[s]imply failing to answer a question during voir dire is insufficient to prove juror bias.”

Finally, the majority concluded that nothing in the record indicated that Tanya G. became aware that her failure to answer was false or misleading any time during Funk’s trial.

Thus, the majority concluded that “the facts necessary to ground a circuit court’s reasonable legal conclusion that Tanya G. was objectively biased were not developed in this case.”

The majority also noted that State v. Delgado, 223 Wis. 2d 270, 558 N.W.2d 1 (1999), a similar case, forbids a court from finding per se bias based solely on the victim status of the juror.

Dissent

Justice Ann Walsh Bradley (joined by Chief Justice Abrahamson), in a dissenting opinion, argued that the majority applied the wrong test when it applied Wyss. Under Faucher, Justice Bradley explained, an appellate court determining objective bias must ask: “Is this a conclusion that a reasonable judge could reach?”

“When applying this test, we give deference to the decision of the circuit court because it has special competence in making objective bias determinations,” Justice Bradley explained.

Justice Bradley asserted that the three-factor Wyss test applied by the majority “was discarded over ten years ago” when Faucher was decided, and application of it “leaves confusion.”

“Not only did Faucher discard the Wyss test, it also indicated that the three-factor test was never intended to apply to an analysis of objective bias at all,” Justice Bradley wrote. “By not adhering to Faucher and its test for determining objective bias, the majority opinion will leave the bench and bar wondering what is the test for determining objective bias and what deference is due to the circuit court’s determination.”

In part II of her dissent, Justice Bradley applied the Faucher test and concluded that the circuit court’s determination that Tanya G. was objectively biased was correct. Based on all the circumstances, “I determine that the circuit court’s conclusion is one that a reasonable judge could reach,” Justice Bradley explained.

Justice David Prosser joined part II of Bradley’s dissent, stating simply that “[t]his case presents a classic example of objective bias.” Chief Justice Abrahamson wrote a separate opinion, supporting the circuit court’s conclusion that Tanya G. was subjectively biased.

Attorneys

Assistant Marguerite M. Moeller represented the state. Michele Anne Tjader, of Tjader Law Inc., Madison, represented David Funk.