Wisconsin Supreme Court says judge’s mom should not sit on
jury but disagree why
By Alex De
Grand, Legal Writer, State Bar of Wisconsin
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.”