Nov. 6, 2014 – A prosecutor in Portage County elicited a promise from the jury during voir dire to convict if the state proved beyond a reasonable doubt that the defendant was driving with a prohibited alcohol concentration. Recently, a state appeals court ruled the promise did not violate the defendant’s constitutional right to a jury trial.
Frank Zdzieblowski, a 73-year-old who was prohibited from driving with an alcohol concentration above 0.02., argued that the promise, repeated again during the closing rebuttal argument, eliminated the jury’s power to exercise its nullification authority.
Under State v. Bjerkaas, 163 Wis. 2d 949, 472 N.W.2d 615 (Ct. App. 1991), juries have the power to acquit defendants on the basis of extraneous considerations – to nullify the objectively correct application of the law – “even when the defendant may be objectively guilty in light of the facts of the case and the court’s instructions.”
Zdzieblowski said the jury essentially waived the power to nullify by promising to convict if the prosecutor proved the elements of the crime beyond a reasonable doubt.
But in State v. Zdzieblowski, 2014AP619-CR (Nov. 6, 2014), a three-judge panel for the District IV Court of Appeals did not agree, concluding any error was harmless.
“We conclude that, even if allowing the prosecutor to elicit promises from prospective jurors here was error, it was harmless, and the controversy was fully tried,” wrote Judge JoAnne Kloppenburg, who noted that Wisconsin has not addressed the precise issue.
The panel noted that cases from other jurisdictions have found similar questioning from prosecutors to be proper, citing cases from Texas and New Mexico.
Unlike the prosecutor’s voir dire questions in a Mississippi death penalty case, however, the panel said the prosecutor in Zdzieblowski’s case did not cross the line.
“The principles that can be derived from this persuasive authority are that voir dire questions that assume proof of, or demand consideration of, only what the law requires are proper because they ask that the jurors do no more than promise to fulfill their duty to follow the law, and do not limit the jurors’ consideration of any pertinent factors or invite them to prejudge any particular fact,” Judge Kloppenburg wrote.
The panel also rejected the argument that in eliciting a conviction promise from jurors, the prosecutor forged an improper bond with the jurors and bound them to prejudge the case before hearing the evidence or any jury instructions.
Even if the questioning was improper, the panel concluded, it was harmless, and the harmless error analysis does not consider the jury’s power of nullification. An error is harmless if the jury could convict on the evidence presented despite the error.
“[I]f a court were required to consider the possibility that a jury could exercise its power of nullification, then the State could never meet its burden of showing that a rational jury could convict on the evidence presented at trial,” Judge Kloppenburg explained.
Finally, the appeals panel rejected Zdzieblowski’s argument that a new trial should be granted in the interests of justice. He said the real controversy was not fully tried.
The opinion concluded with one final point on “promise” questions during voir dire, which the state conceded might be a practice best avoided by prosecutors.
“Regardless of whether this was proper or not, it is easy for us to envision variations in attempts to emulate, or expand on, this approach that would be improper,” wrote Kloppenburg, discussing some examples of what might be improper questioning
Those include “questions that might be reasonably interpreted to lead prospective jurors to think that they are committing to reaching a particular factual conclusion, or that they are cabining their consideration of relevant factors regarding an element or defense. …”