May 1, 2009 - A judge’s mother should not sit on a jury, but justices of the Wisconsin Supreme Court disagreed as to why.

Chief Justice Shirley Abrahamson, writing the lead opinion in State v. Tody, 2009 WI 31, said that the presence of the judge’s mother on the jury is an example of “objective bias.” A juror is objectively biased when a reasonable person in the juror’s position could not avoid basing his or her verdict upon considerations extraneous to evidence put before the jury at trial. Objective bias is a structural error requiring reversal and a new trial.

Abrahamson was joined by Justices Ann Walsh Bradley and N. Patrick Crooks. Justice Michael Gableman did not participate.

Justice Annette Kingsland Ziegler, joined by Justices David Prosser and Patience Roggensack, rejected this conclusion, arguing that this case presents no more than a trial judge’s bad call on a motion to strike a juror.

In this case, Mark Tody Jr. stood trial in Ashland County before Judge Robert E. Eaton for operation of a motor vehicle without consent as a party to a crime. When Tody’s attorney learned that Eaton’s mother was in the jury pool during voir dire, he moved to strike her for cause. Defense counsel argued that the judge’s mother might unduly influence other jurors.

Although the judge expressed concerns, he concluded he had no legal basis to disqualify a juror on account of a relationship with a neutral party. Moreover, Eaton’s mother gave assurances during voir dire that she could be impartial. Defense counsel did not use a peremptory strike to remove the judge’s mother and the jury proceeded to convict Tody. Tody received three years probation.

A legal basis to excuse

Faced with a close family member in the jury pool, the trial judge should apply the legal principle of dismissing a challenged juror whose presence may create bias or an appearance of bias, the lead opinion stated. This will save judicial time and resources in the long run, the court explained.

The lead opinion acknowledged the novelty of the issue, finding that most often the alleged bias involves the juror’s relationship to either side of the dispute. However, the lead opinion concludes a judge’s mother is objectively biased because she “has an interest in the case, namely her familial relationship with the judge, that is extraneous to the evidence on which the jury is to base its decision. A reasonable person in the position of the judge’s mother would not have been able to set aside her relationship to the presiding judge when discharging her duties as a juror.”

Further, the lead opinion stated, the mother’s presence on the jury could discourage counsel from challenging the trial court’s adverse rulings “with ordinary zeal if one of the jurors whom counsel needs to persuade happens to be an immediate family member of the presiding judge.” Also, other jurors might give undue deference to the judge’s mother, the opinion continued.

Just as importantly, the lead opinion found, a close familial link between the judge and a juror is “conspicuously inconsistent with the jury’s function as, in part, a check upon the power of the judge.” Accordingly, the opinion concluded that the mother’s presence on the jury is per se prejudicial and the mother’s assurances of impartiality are irrelevant.

Narrower grounds for reversal

Dissenters concurred with the lead opinion’s conclusion that Tody’s conviction must be reversed and a new trial ordered.

But in a separate concurrence, Prosser said he could not join a “precedent-setting opinion that would categorize every future case of objective bias a constitutional violation requiring a new trial.” As such, Prosser said he would join the concurrence by Kingsland Ziegler.

In her opinion, Kingsland Ziegler denied this case involved juror bias. “Standing apart, neither the judge nor the juror was biased,” she wrote.

Noting that the lead opinion cited case law involving jurors with disqualifying relationships to litigants, Kingsland Ziegler accused its author of “weav[ing] an analysis in order to obtain a result.”

Kingsland Ziegler’s criticism remained on the trial judge for failing to exercise his broad inherent authority to avoid an appearances of bias – or, as she termed it, “a problem waiting to happen.”   “Under his inherent authority, the judge should have either stricken his mother from the jury or recused himself from the case,” she wrote.

In rebuttal, Abrahamson faulted the concurrence’s focus on the trial judge for an incomplete explanation of how this case merited reversal.

“Their concurrence explains that it would have been within the circuit court judge’s discretion to strike his mother as a prospective juror or to recuse himself from the case,” Abrahamson wrote. “But their concurrence does not explain why the circuit court judge not only was permitted but also was required, on pain of reversal by this court, to exercise his discretion in this manner.”