Juror Bias / Disqualification – Waiver of Issue: Use of Peremptory to Remove Juror

State v. Sharon A. Sellhausen, 2012 WI 5, reversing 2010 WI App 175; for Sellhausen: Byron C. Lichstein; case activity

The trial judge’s daughter-in-law was part of the jury pool; Sellhausen didn’t seek her removal for cause, but used a peremptory to strike her, which rendered harmless any possible error in the trial judge sua sponte failing to remove the juror for cause. State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, deemed controlling; State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, distinguished:

¶7   We conclude that the present case is governed by State v. Lindell.[6]  We conclude that because the defendant exercised a peremptory strike to remove the circuit court judge’s daughter-in-law from the jury, and because the defendant does not claim the jury was unfair or partial, a new trial is not required under the circumstances of the present case.[7]  The defendant has not shown that the presence of the challenged juror in the pool of potential jurors affected the defendant’s substantial rights.  Accordingly, we reverse the decision of the court of appeals ordering a new trial.

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¶21  Tody, 316 Wis. 2d 689, presented a very different fact situation than the instant case.  In Tody, the defense counsel moved to strike the circuit court judge’s mother from the pool of potential jurors for cause; the circuit court judge denied the motion.[17]  Neither party in Tody used a peremptory challenge to remove the mother from the jury, and the circuit court judge’s mother sat on the jury that convicted Tody.

¶22  Two key differences exist between the present case and Tody.  First, in the present case, unlike in Tody, neither the State nor the defendant moved to excuse the daughter-in-law for cause and the circuit court judge did not rule on a motion involving his family member.  Second, in the present case, unlike in Tody, the defendant exercised a peremptory strike and the challenged juror did not sit on the jury.[18]

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¶40  The defendant does not claim that the jury was biased, unfair, or partial.  Nor does the defendant claim that she falls within any of the situations set forth in Lindell that might justify a new trial even when a defendant receives a fair and impartial jury.[26]  There is no evidence in the record that defense counsel was stifled in questioning other prospective jurors as a result of his experience with the challenged juror; that defense counsel was forced to exhaust all of the peremptory challenges without conducting adequate voir dire; or that the circuit court acted in bad faith.

¶41  In sum, the defendant exercised her peremptory right to remove the judge’s daughter-in-law from the jury.  The defendant agrees that she was tried by a fair, impartial jury.  The defendant has not demonstrated harm.  Thus, we hold that the defendant’s substantial rights were not impaired.  The Lindell case governs the instant case.  The defendant is not entitled to a new trial on the ground that the circuit court erred in failing to excuse the juror sua sponte for cause.

So far so good: agree with the result or not, it’s based on a readily comprehensible, easily administered rule. Use a peremptory to strike an arguably biased juror, and you’ve cured any error (subject to very limited exceptions). However, on the underlying question of whether error occurred in the first instance, four justices combine to elevate to binding precedent the prior 3-justice concurrence in Tody. (Sellhausen conc., Ziegler, J., ¶¶72 et seq.) The problem is, as the Chief Justice points out (Sellhausen conc., ¶¶48-51), although the Tody concurrence agreed that the presiding judge’s mother shouldn’t be allowed to sit on the jury, it failed to articulate why. Thus, “Wisconsin circuit and appellate courts will be … left scratching their heads looking for legal principles to apply to the facts presented,” ¶69 (Abrahamson, CJ, conc.). If that leaves you itching to see for yourself, the holding is contained in the following paragraph:

¶75  Relying on my concurrence in Tody, the court of appeals concluded that efficient and effective operation of the court system requires presiding judges to sua sponte remove their immediate family members from a panel of potential jurors.  See id., ¶¶11, 22-23.  I part ways with the court of appeals’ decision to impose a duty upon circuit court judges to always sua sponte remove their immediate family members from a panel of potential jurors. Parties may very well receive a fair and impartial jury even if the jury includes a member of the judge’s family. Still, in such circumstances, the potential for both foreseeable and unforeseeable problems warrants the judge’s serious consideration.  Accordingly, consistent with my concurrence in Tody, I continue to urge circuit court judges to exercise their inherent authority to ensure the fair, efficient, and effective administration of justice by considering whether the removal of their immediate family members from a panel of potential jurors or whether recusal from the case would avoid such problems.  Tody, 316 Wis. 2d 689, ¶¶60, 67 (Ziegler, J., concurring).

Having a family member sit on the juror might raise problems? And, judges have the authority to remove a family member from the panel? Who knew such things? Hard to say just why the majority has such an allergic reaction to a rule-based principle. (What, really, is wrong with saying that a judge errs as a matter of law in allowing an immediate family member to sit on the jury?) The holding cautions, “Permitting the presiding judge’s immediate family member to remain on a jury has the potential to create problems, including the possibility that the judge may be called upon to rule on an issue in which his or her family member is the subject of inquiry. … 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.  Indeed, had the judge in this case removed his daughter-in-law from the panel of potential jurors, and had the judge in Tody removed his mother from the panel of potential jurors, see 316 Wis. 2d 689, ¶¶17-18, this very issue probably would not have come before us,” ¶76. The majority thus all but says that an immediate family member must be removed. Why not just say it? That, perhaps, is the real head-scratcher.