Petition for Writ of Certiorari — Smith v. Wisconsin (No. 06-717)

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06-717 NOV 22 2006

No. OFFICE OF THE CLERK

In the Supreme Court of the United States

DALE L. SMITH,

Petitioner,

STATE OF WISCONSIN,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Wisconsin

PETITION FOR A WRIT OF CERTIORARI

DANIEL R. ORTIZ

University of Virginia

School of Law Supreme

Court Litigation Clinic

580 Massie Road

Charlottesville, VA 22903

(434) 924-3127

ALLISON M. RITTER

Ritter, Rvypel & Yasin LLP

2266 North Prospect

Avenue

Suite 304

Milwaukee, WI 53202

(414) 274-0000

MARK T. STANCIL*

Robbins, Russell, Englert,

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 775-4500

DAVID T. GOLDBERG

David T. Goldberg

Law Office

99 Hudson Street, 8th Floor

New York, NY 10013

(212) 334-8813

*Counsel of Record

QUESTION PRESENTED

Whether a criminal defendant’s Sixth Amendment right to

trial by an impartial jury was violated wherra trial court, over

—the defendant’s objection, allowed an employee of the

prosecutor’s office to serve as a juror.

TABLE OF CONTENTS

Page

QUES THON PIB re kee trididecsoesyscestsesisasbectinicnasesiasesnvaseveovess i

TABLE OF FEF FRE TE vtec ilcectrecigansooketniicivonsvesscaes ili

COREE Fy Fen aac sic nth ra tities renitiaiaceasssevcosecsbesetentess l

POF e sass teanscsivi tienen acd dabesiiivactiveyieichsesssiacesevosee |

CONSTITUTIONAL PROVISION INVOLVED................... 1

BS EA Ee icici Att eee beiaaticaenidocabbscistnsésnceoesesse l

REASONS FOR GRANTING THE PETITION..................... 8

I. The Wisconsin Supreme Court’s Narrow

Construction Of The Sixth Amendment

Squarely Conflicts With Decisions Of

Numerous Other State And Federal Courts ........... 8

II. The Wisconsin Supreme Court’s Decision

Permitting An Employee Of The

Prosecuting Office To Sit On A Criminal

Jury Is Inconsistent With The Sixth

Amendment And The Common Law

Principles On Which It Rests ..................::cseceeeees 17

ON ar as cs cis sai ahaoutnns tesevaces ssiesachbssnne coveoesseconyees 25

ill

TABLE OF AUTHORITIES

Page(s)

CASES

Aetna Life Ins. Co. v. Lavoie,

Ee Fees EA Gh ais Ha ciiiccccecingseienncccimbepcbenesiiniens 22-23

Ajabu v. State,

PF Tr aee Sk CBI. EDOGD Pisa ccc ispecies eens 4

Barnes v. State,

ae Pale TSS CHG, LOTS) viiciciescseisivnsversosstcinseuteccivonsieeess 9

Beam v. State,

GOO SB BZ8 S27 SR. TIC) cvvccccnesvssicvssenpiictersevtatcavinsiores 9, 10

Block v. State,

ROE Ns FOF CRS wincttnssinsanscicatessansseotuelcicsiguasnidaeonlioes 9

Bracey v. Gramley,

PROT NA ie IT Pecicsncin caantoceciniogs paouaaaagpentcbinted 21-22

Cook v. State,

Se Os Fie FON CER. BIO svncacvieisniccrsertebconcineceeiiosocvaors 23

Crawford v. Washington,

SE EE re. Be Cs ish sch ee Sirens conch Dakndap ible gus esbdnslaiiasuas 19

Duncan v. Louisiana,

SPE Are TR Ca Pitti Accs uanibeecacaan 1

Eubanks v. State,

GIS FW aes Se CB AI: TIT) vac cseciniconccecersseserenscccts 13

Frazier v. United States,

Sie ce Me PCE Necks chtcinscseirctho chisaeirerechanesciibaniteciise oleae 5

TABLE OF AUTHORITIES—CONTINUED

Page(s)

Haak v. State,

SET PEE AG FOE NG, AGGIE Ps sesecivcstisssshevnticacimsinveesesiciacsoshs 9

Henry v. State,

586 So. 2d 1335 (Fla. Dist. Ct. App. 1991)........... 13,14, 24

Hutcheson v. State,

ZA Si Ree ES CAN FD ci secinsnaccncconsasvcecosebcrvacnssenicamerseers 9

Irvin v. Dowd,

Sai FOE CO NE Recsensaivcietéctirsseaancvinipinvaonetonsecanibebioeele 21

Johnson v. Louisiana,

space as kab | NOME RISO ea I SPLRG ae Sd 18-19

Johnson v. United States,

BAF Bia PEA Oe isncdinccsideconnecabdiasavetesanscuaiceanensiensicisu 21

Leon v. State,

396 So. 2d 203 (Fla. Dist. Ct. App. 1981)... ee 13

Lowe v. State,

384 So. 2d 1164 (Ala. Crim. App. 1980)... ec eeseeeeee 12

Morgan v. Illinois,

me Bek, 2 o 4) MRM aR aR RO ROOT SIMS ISS NEN eR Sea 21

Murchison, In re,

PO SS Ca isicccississices mevsctcpdarcsassidaittaidenuades ¢4 oy:

People v. Johnson,

TABLE OF AUTHORITIES—CONTINUED

Page(s)

People v. Lynch,

TOR PULA ENTE OU. 0s BOOO in titsreisisisaiisinssiaciobescsauelas 10

People v. Terry,

35 Cal. Rptr. 2d 729 (Ct. App. 1995) ........-c.cssversersents 16, 17

R.A.D., Ex rel., ase ee

SOO 2s BO CC AFT iaascsvivsccseicdabireseusopatseeestedeasoes Bs)

Randolph v. Commonwealth,

SER Be eo Bo US 8 0 SRR Ea lpia MERGE TA? 11

Republican Party v. White,

DOO Wik TOP Ce iss t ties cainucearienbawas 22

Roubideaux v. State,

TOT Foe So Ca: COU, AD. T9SS) oon ciciiccsnecbsinsscocsszarnas 13

Smith v. Phillips,

BD Fe BO Ce Pe Posi ceaninsscnibusnssciins ssensasessesecessroree Jy By LI

State v. Alexander,

PO Bk 2k TOG CLG: TOTS) is ise siiskiieiens ateccincticbeteciets 14

State v. Ferron,

STS N.W.26 G54 CWis 1998). vaiosisvssisccscseccncsscoscisesenstonsede 4

State v. Faucher,

BG IN We ate 110 CWVIB.. FSF oo ogscs vicsiesis cs ssacessemnciesercscancsenss 6

State v. Hightower,

HEL Fee 2F OK. FRIED insdsGecriccpubiisivemmneudenaee 12

TABLE OF AUTHORITIES—CONTINUED

Page(s)

State v. Johnson,

412 P20 SOL (Wael. App. 1965) oovcccsccccscitescsscceciviovececes 16

State v. Kauhi,

PO ce BP Cem OF Eh siesececcvsuctncineceuivarvebentreniteiecp on 10

State v. Kennedy,

FE Me Fa AIOE csocaienkcecechncensasinbuccecikcosose tas 14

State v. Lindell,

OZ TR Aas EES CPV ID isccsecivsesiecoesvceeiarcsorinsensiedeinitias 5

State v. Louis,

OST NW 2 SBA EWS, 1990) asic tice 3

State v. Rogers,

I Oe TO CO TIGL) an ciesscvcievccccegcasiciciernonstintshdimncic 15

State v. Scales,

443 S.E.2d 124 (N.C. Ct. App. 1994)...............ccccccccssnceenes 13

State v. West,

BOF ac tT ON NB EOE iiss sci cessvesinsecerernbovccsenchs 11

Tumey v. Ohio,

Fe i eS Fi hccve saldasn covcactacocacensaniovesmcaneneons 22

Turner v. Louisiana,

TE Resets TE CE OD isinnesdssncttivcicnincsdehtbvonncvocectbeieeictondiensn 21

United States v. Booker, ‘

RF Eis ee CRO bas cc seinccsceicateshsaneincastpvuenbtnagunconenoienttticiiens 18

Vii

TABLE OF AUTHORITIES—CONTINUED

Page(s)

United States v. Polichemi,

ZU We Ie CIEE. DOOD ivesesvecsiativicioosconceconvetapereaes 6, 12

United States v. Polichemi,

201 F.3d 858 (7th Cir.), vacated in part on other

grounds by 219 F.3d 698 (7th Cir. 2000) 0.0.00... eee eeeeeee 11

United States v. Wood,

i US RE wk No .” CHORRRUE ISG Lemirem one pay ke Mame pinata S$. 12

Ward v. Village of Monroeville,

SE AD he EE CES Tae issccsncicenstinvietsubsicaceibbigueconepnvancvesicblate 23

Withrow v. Larkin, :

5 BO ER 2.) MRR cee RIG SOE pple eC pene PRP 21

CONSTITUTIONAL PROVISION AND STATUTES

Uo. GOOet. ae. VE 1,21

We UG © ASO os os |

Colo. Rev. Stat. § 16-10-103(k) (2003)...........cesssecsseeeseeeeee 15

N. D. Cent. Code § 29-17-36 (2006) .........--essscsecsesesesereeneees 17

Or: Rev. Stat. § 136. 22002 Mc) (2005) cc ccvicccccsccnecccecscseonsstenns 15

Or ey. Set: S: L5G ZOE aD esd cave sscsicoconiadeesicenene 15

Wash. Rev. Code § 4.44.180 (2006)..............ccscccssceseseceeeeeees 16

RULES

Alaska R. Crim. Proc. 24(c)(10) ....ssc-sssscsesssescsueesseecseesseeessees 14

Vill

TABLE OF AUTHORITIES—CONTINUED

Page(s)

Pees Ki, Cote, Pia, ZAC a oicsciccecsoscscsessoncsséscsonsgnssiacge 14

Cole. R Crim: Proc: 2400 occ csccctceecccsosstoc 15

La. Code Crim. Proc. Ann. art. 797(3) (1998).....:seeeseeeree 15

Wash. Super. Ct Crim. RK. G6.) occ cccsscccicciensssesavectasessess 16

MISCELLANEOUS

3 William Blackstone, Commentaries .............ssscsceseeseeeesees 19

1 Joseph Chitty, A Practical Treatise on The

Criminal Law (London, A.J. Valpy 1816)....................... 21

The Complete Juryman: or, a Compendium of the

Laws Relating to Jurors (London, Henry Lintot

UY go) RUSTE AD UB ye EEE NRO at) ORE AF 7 EON a a OO 20

3 Jonathan Elliot, The Debates in the Several State

Conventions, on the Adoption of the Federal

Constitution as Recommended by the General

Convention at Philadelphia in 1787

EY .” Raimneninppnen sweilrin Ne Osi Mere Scott ae IETS 18

Thomas Jefferson, First Inaugural Address (Mar. |

4, 1801), in Stephen Howard Browne,

Jefferson’s Call for Nationhood: The First

Inaugural Address xv-xvi (2003)..........:-:-sssesessseseereeseeeees 18

Mass. Const. of 1780, pt. I, art. XXIX...0.... cee eeeeceeeeeeeeee 22

TABLE OF AUTHORITIES—CONTINUED

Page(s)

Peter Oxenbridge Thacher, Observations on Some

of the Methods Known in the Law of

Massachusetts, to Secure the Selection and

Appointment of an Impartial Jury, in Cases

Civil and Criminal (Boston, Russell, Odiorne &

OG FID vs cocc aces cies as ip ehtahaiuanseainbuevacsiiseesesaserns 19-20

Seth P. Waxman, “Presenting the Case of the

United States as It Should Be”: The Solicitor

General in Historical Context, at

http://www.usdoj.gov/osg/aboutosg/sgarticle.ht

wink CPaanhe 3 Fe ioc ssssccnivescrescbaasdarateniindocescctnreceiess 20-21

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The majority and dissenting opinions of the Supreme

Court of Wisconsin, App., infra, 1a-39a, are reported at 716

N.W.2d 482. The January 11, 2005, decision of the

Wisconsin State Court of Appeals, App., infra, 40a-46a, is

unreported. The Milwaukee County Circuit Court’s July 7,

2004, decision and order denying a motion for a new trial,

App., infra, 47a-5 1a, is also unreported.

JURISDICTION

Thé judgment of the Supreme Court of Wisconsin was

entered on June 27, 2006. On September 12, 2006, Justice

Stevens extended the time within which to file a petition for a

writ of certiorari to and including October 25, 2006. On

October 12, 2006, Justice Stevens further extended the time

within which to file a petition to and including November 24,

2006. This Court’s jurisdiction is invoked under 28 U.S.C. §

1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment of the United States Constitution

provides that “[ijn all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have

been committed.”

STATEMENT

The sole issue presented is whether a criminal defendant’s

Sixth Amendment right to trial by an impartial jury, which the

Fourteenth Amendment’s Due Process Clause makes

applicable to the States, Duncan v. Louisiana, 391 U.S. 145,

149 (1968), is violated when a trial court, over the

defendant’s objection, allows an employee of the prosecutor’s

office to serve as a juror. A closely divided Wisconsin

Supreme Court held that an employee’s subordinate

relationship with the prosecuting office does not disqualify

her from jury service in criminal cases brought by that office

so long as the trial court accepts her assurances that she is

capable of reaching an unbiased decision.

Petitioner Dale L. Smith was charged with operating a

motor vehicle while intoxicated (second offense). During

voir dire, one of the prospective jurors, Charlotte T., disclosed

that she worked as an administrative assistant in the

prosecuting district attorney’s office. App., infra, 63a-64a.

Smith’s counsel moved to strike her for cause on the ground

that “she works for the law firm prosecuting the case. Her

employer is [Milwaukee County District Attorney] Michael

McCann.” Jd. at 65a. The trial court denied Smith’s motion.

Id. at 66a. i

Although Charlotte T. was a strong candidate for removal

by peremptory challenge, Smith used his four allotted

peremptory strikes to remove individuals whose voir dire

responses raised even more serious concerns but whom the

trial court also refused to strike for cause. More specifically,

one of these four had said, “I have a friend who almost killed

somebody while under the influence, and I’ve had several

friends arrested for driving under the influence. I don’t

associate with them anymore. I’ve got children; I don’t like

that.” App., infra, 61a. Another, a police officer, had to

“arrest people for drunk driving” as “part of [her] job.” /d. at ~

55a. A third prospective juror had answered that he “[would]

have shot” an intoxicated driver he had once encountered if

he had been armed at the time, id. at 54a, and, when pressed

whether the fact that his brother “was put in a coma for two

weeks because of a drunk driver,” id. at 61a, would affect his

ability to be fair, answered that it might, ibid.. That juror

added that he “absolutely [could not be impartial] if [he]

found out [that] the person had denied the police the right to

check his blood,” id. at 67a. He explained: “[T]hat tells me

he was drunk. I don’t care, he should go to jail. That would

totally blow me off right there.” /bid.’ A fourth prospective

juror had answered the defense question whether he could

accord Smith the requisite presumption of innocence by

saying “[pl]erhaps,” clarifying that “I kind of feel [he] would

not be here unless [he had done] something wrong.” Jd. at

63a.

Although in one of these instances the state had agreed

with the defense that there was “enough to strike [the juror]

for cause,” App., infra, 70a, the trial judge ruled that he

would nonetheless seat that individual unless Smith used a

peremptory, see ibid. With respect to these prospective

jurors, the court accepted their answers that they “believe[d

they were] neutral,” id. at 67a, or that they “fe[It they] c[ould]

be impartial,” id. at 63a. With Smith’s peremptory challenges

exhausted and his for-cause challenge to the prosecutor’s

employee overruled, Charlotte T. was seated on the jury that

later convicted Smith of operating a motor vehicle while

intoxicated. /d. at 73a.

Smith moved for a new trial on the ground that allowing

an employee of the prosecutor’s office to decide his guilt

violated his Sixth Amendment right to an impartial jury. The

_ trial court denied his motion, citing State v. Louis, 457

N.W.2d 484 (1990), in which the Wisconsin Supreme Court

had held that a defendant’s rights were not violated by

empanelling jurors who were members of the same police

department as one of the State’s witnesses. The trial court

' After this juror left chambers, the judge said “{h]e told you [that]

if there was a refusal [to be tested], [the defendant is] dead in the

water.” App., infra, 68a. Defense counsel then pointed out that the

State would present evidence that after blowing into the testing device

three times, Smith refused to take the test a fourth time. /d. at 68a-69a

The judge nonetheless denied defense counsel’s request to stike this

juror for cause. Jd. at 70a.

thus concluded that “the mere fact that a juror works for the

prosecuting office, without more, does not in and of itself

disqualify the juror from service.” App., infra, 50a.

Smith then appealed to the Wis -onsin Court of Appeals,

which affirmed the denial of his motion for a new trial.

Again invoking Louis, that court observed that “[t]here [was]

no evidence that Charlotte had any contact with the

prosecutor in this case or had any familiarity with the

prosecution of this case” and agreed “with the trial court’s

conclusion that the ‘mere fact that a juror works for the

prosecuting office, without more, does not * * * disqualify

[her] from service.’” App., infra, 46a.

After granting Smith’s petition for discretionary review,

the Wisconsin Supreme Court, over the dissent of the Chief

Justice and two other Justices, upheld the trial court’s

decision. Rather than adopt a per se rule that employees of

the prosecuting attorney’s office should not serve as jurors in

cases prosecuted by that office, the majority held that motions

to remove such individuals for cause should be evaluated

under a “totality of the facts and circumstances” test. App.,

infra, 18a. It described that inquiry as focused

‘upon whether the reasonable person in the individual

prospective juror’s position could be impartial. * * * [A]

circuit court must consider the facts and circumstances

surrounding the voir dire and the facts involved in the

case. However, the emphasis of this assessment remains

on the reasonable person in light of those facts and

circumstances.

App., infra, 16a (emphasis added) (quoting State v. Ferron,

579 N.W.2d 654 (1998)). Since the trial court “is intimately

familiar with the voir dire proceeding[] and is best situated to

reflect upon the prospective juror’s subjective state of mind,”

the majority explained, an appellate court must “give weight

to the court’s conclusion that a prospective juror is or is not

objectively biased [and] * * * reverse its conclusions only if

as a matter of law a reasonable judge could not have reached

such a conclusion.”~ Jd. at 17a-18a (quoting State v-. Lindell,

629 N.W.2d 223 (2001)).

Applying this standard_of review, the majority found “that

a reasonable circuit court judge could conclude that Charlotte

was not objectively biased under the totality of the facts and

circumstances.” App., infra, 18a. In reaching this result, the

court thought it especially significant that Charlotte T. and the

prosecuting attorney worked in different locations; that

Charlotte T. did not work on investigations; and that the |

record did not show (1) that she recognized the prosecuting

attorney or vice versa, (2) that they had had any contact, or

(3) that Charlotte T. had any prior familiarity with the case or

with any work in the other office location. Jbid. The majority

separately noted that Charlotte T. had insisted that she could

be fair and impartial, id. at 18a-19a, and that “the subjective

state of mind of the juror is an important consideration in the

overall determination” of bias, id. at 19a.

In reaching this result, the Wisconsin Supreme Court

relied in large part on its prior decision in Louis. It stated:

as we refused to exclude police officers from juries on a

per se basis, so too do we refuse to exclude employees of

the Milwaukee County District Attorney’s Office on a per

se basis. Without some other evidence that a prospective

juror such as Charlotte cannot possibly be impartial, he or

she should not be excluded solely on the basis of their

employment.

App., infra, 24a. The majertty-maintained its decision was

supported by several decisions of this Court: Smith v.

Phillips, 455 U.S. 209 (1982), which held that the

Constitution was not violated by seating a juror who had

sought employment with but never been hired by the

prosecutor’s office; Frazier v. United States, 335 U.S. 497

(1948), in which employment with the Treasury Department

was held not to preclude serving as a juror in a federal

narcotics prosecution; and United States v. Wood, 299 U.S.

123 (1936), which upheld seating in a federal prosecution a

juror who received a federal civil war pension and two other

jurors who worked as clerks in the federal government. App.,

infra, 19a-20a. The majority also distinguished a recent

decision of the United States Court of Appeals for the

Seventh Circuit. Jd. at 2la-22a. In that case, United States v.

Polichemi, 201 F.3d 858, vacated in part on other grounds by

219 F.3d 698 (2000), the Seventh Circuit held that implied

bias precluded a juror employed by the Civil Division of the

U.S. Attorney’s Office from sitting on a jury in a case tried by

the Criminal Division. The Wisconsin Supreme Court

majority reasoned that “{ajlthough there are factual

similarities between Polichemi and this case, unlike [the juror

in Polichemi], Charlotte did not work on any matters for the

Milwaukee office, nor did she recognize the prosecutor. In

other words, the relationship was * * * more remote in this

case than in Polichemi.” App., infra, 22a.

Chief Justice Abrahamson, joined by Justices Prosser and

Butler, dissented. She would have held that “[w]hen a

prospective juror is ‘employed by an attorney in the case to be

tried, the situation is so fraught with the possibility of bias

that we must find bias regardless of the surrounding facts and

circumstances and the particular juror’s assurances of

impartiality.’”” App., infra, 29a (quoting State v. Faucher,

596 N.W.2d 770 (1999)). Although acknowledging that

Charlotte T. was “not closely related to the assistant district

attorney prosecuting the case,” id. at 30a, she maintained that

this fact did not

diminish[] the challenged prospective juror’s perception

of the risk of an adverse employment action. Certainly, a

reasonable person under the circumstances might perceive

the possibility of the employer being unhappy with his or

her vote as a juror. An objectively reasonable person

might (intentionally or unintentionally, consciously or

subconsciously) give the edge to the employer in light of

ties of economic interests and loyalty.

The risk of an employee sensing economic pressure to

side with his or her employer is too great to rely on the

prospective juror’s representations of his or her ability to

be unbiased. In addition, an employee may feel loyalty

toward his or her employer and the positions the employer

takes. An employee may reasonably wish to be a “team

player” or may perceive peer pressure from coworkers to

side with their employer.

Id. at 31a-32a (footnotes omitted).

Chief Justice Abrahamson also challenged the majority’s

effort to distinguish Polichemi on its facts, noting that the

U.S. Attorney’s office at issue in Polichemi was larger and

more diffuse than the Milwaukee District Attorney’s Office

and that nothing in the Seventh Circuit’s opinion had

suggested “that the juror in that case was any closer to the

prosecuting Assistant U.S. Attorney than [Charlotte T.] was

to the prosecuting assistant district attorney” in the present

case. App., infra, 35a-36a. The dissenting justices

emphasized the limited reach of the bright-line rule they

would apply. It would not “exclud[e] all government

employees from serving on a jury in every case involving the

government.” /d. at 37a. It would, in fact, allow employees

of prosecutors’ offices to serve on civil or even criminal juries

so long as their employer was not involved in the case. J/bid.

This petition followed.

REASONS FOR GRANTING THE PETITION

I. The Wisconsin Supreme Court’s Narrow Construction

Of The Sixth Amendment Squarely Conflicts With

Decisions Of Numerous Other State And Federal

Courts

The Wisconsin Supreme Court deepened an already sharp

conflict among state and federal appellate courts as to

whether a court may, consistent with the Sixth Amendment’s

guarantee of “trial by an impartial jury,” overrule a

defendant’s request that an employee of the prosecuting

attorney not sit in judgment. Although no opinion of this

Court has spoken definitively on the matter, Justice

O’Connor’s concurrence in Smith v. Phillips identified the

“extreme situation” presented here—when a “juror is an

actual employee of the prosecuting agency’—as a

paradigmatic example of when the Constitution would not

“allow a [guilty] verdict to stand,” regardless of whether the

individual was actually biased. 455 U.S. 209, 222 (1982)

(O’Connor, J., concurring). Although courts (and

legislatures) in many States have adopted the categorical

approach Justice O’Connor suggested, others, like the

Wisconsin Supreme Court, have held that the Constitution is

not offended when an employee of the office prosecuting a

criminal case is allowed to sit on the jury over the defendant’s

objection.

At least four States’ highest courts—Indiana’s, Georgia’s,

Hawaii’s, and New York’s—-as well the federal court of

appeals that includes the State in which this case arose, have

held that the Sixth Amendment requires a trial court to excuse

for cause a juror who is an employee of the prosecuting

office. In addition, courts in numerous other jurisdictions

have held that employees of the prosecutor’s office are not

permitted to serve on criminal juries brought by that office,

but those courts have been less clear about the extent to which

this rule rests on the Sixth Amendment itself (as opposed to

the common law principles on which the Amendment is

based).

For example, as far back as 1885, Indiana found that an

inherent conflict of interest arose when employees of the

prosecutor’s office were empanelled on juries in cases that

that same office was prosecuting. The Supreme Court of

Indiana explained:

The prosecuting attorney stood * * * for and as the

representative of the State, and was, by analogy and for all

practical purposes, the plaintiff in the prosecution. [The

juror] * * * had become and was the employee and

subordinate of the prosecuting attorney * * *. He was,

therefore, impliedly biased against the [defendant], and

hence an improper juror.

Block v. State, 100 Ind. 357, 364 (1885). So great is this

threat of bias, the Indiana Supreme Court later held, that a

trial court may not seat a juror who “was married to a second

cousin of a member of the prosecutor’s staff,’ Barnes v.

State, 330-N.E.2d 743, 746 (1975), or even one married to an

attorney who had accepted a job offer in the prosecutor’s

office. Haak v. State, 417 N.E.2d 321 (1981). Haak,

moreover, explicitly grounded this protection in the

guarantees of the Sixth Amendment. /d. at 326.

_ In Beam v. State, 400 S.E.2d 327 (1980), the Georgia

Supreme Court held that the trial court should have excused

for cause a secretary in the appellate section of the district

attorney’s office prosecuting the criminal case. Relying on its

prior Sixth Amendment precedent, the Supreme Court of

Georgia held that

[j]Jurors should be above suspicion. It is inherent in the

nature of the duties of employees of district attorneys and

the closeness with which such employees are identified

with criminal procedures that questions regarding possible

bias, fairness, prejudice or impermissible influence upon

jury deliberations inevitably arise. These questions

cannot be erased by a mere subjective, albeit sincere,

declaration by the officer that he or she can be fair and

impartial to a defendant.

Id. at 328 (quoting Hutcheson v. State, 268 S.E.2d 643, 644

(Ga. 1980)) (internal citations and brackets omitted). The

juror’s service, the court concluded, not only posed an

intolerable risk of bias, but also created a “substantial

appearance of impropriety.” /bid. Excusing the juror was

thus necessary “to preserve public respect for the integrity for

the judicial process.” Ibid.

The Supreme Court of Hawaii has likewise held that

“where a prospective juror is a prosecutor currently employed

by the same office as the prosecutor trying the defendant, the

court shall imply bias as a matter of law and dismiss the

prospective juror for cause.” State v. Kauhi, 948 P.2d 1036,

1041 (1997). Although the juror in that case was a

~ prosecuting attorney, not just an employee of the prosecutor’s

office, the Hawaii Supreme Court treated that fact as merely

“further complicat[ing]” the employer-employee relationship

that was the heart of its constitutional concern. /d. at 1040.

Relying on Beam’s Sixth Amendment holding and applying

that case’s “appearance of impropriety test,” id. at 1039, the

Hawaii Supreme Court “agree[d] that reasonable persons

might question an employee’s bias in favor of his or her

employer, notwithstanding his or her outward declarations of

impartiality,” id. at 1040. It then noted that “[a]n employee

may, even unconsciously, make decisions based upon loyalty

to the employer or even perhaps out of fear of retribution.”

Ibid.

In People v. Lynch, 738 N.E.2d 1172 (2000), the New

York Court of Appeals reached a similar result. Relying on

Sixth Amendment precedent, id. at 1174 (citing People v.

Johnson, 730 N.E.2d 932 (N.Y. 2000)), it held that “a student

intern employed at the prosecuting agency’s office[] should

have been dismissed for cause.” /bid. (citation omitted).

The Supreme Court of Kentucky has similarly held that a

trial court should have dismissed a juror employed by the

Commonwealth’s Attorney’s Office on the ground of implied

bias. Randolph v. Commonwealth, 716 S.W.2d 253 (1986).

It is “obvious,” the court found,

that an implied bias challenge lies against [the] juror * * *

because her position as secretary for the Commonwealth’s

Attorney gives rise to a loyalty to her employer that would

imply bias. In addition it is entirely possible that she may

have been in a position to have known about the case

prior to trial. It is the possibility of bias or prejudice that

is determinative in a ruling on a challenge for cause.

Id. at 255-256.

The West Virginia Supreme Court has announced an even

broader rule. Recognizing the need “to secure jurors who are

‘not only free from prejudice but who are also free from the

suspicion of prejudice,” it has held that “when the defendant

can demonstrate even a tenuous relationship between a

prospective juror and any prosecutorial * * * arm of State

government,” that juror should be excused for cause. State v.

West, 200 S.E.2d 859, 866 (1973) (emphasis added).

The Seventh Circuit, apparently the only federal court of

appeals to examine the question directly, has agreed that

jurors employed. by the prosecuting attorney’s office should

be excused for cause under the Sixth Amendment. United

States v. Polichemi, 219 F.3d 698 (2000). The juror in that

case had worked for fifteen years as a secretary in the civil

division of the U.S. Attorney’s office prosecuting the case.

201 F.3d 858 (7th Cir.), vacated in part on other grounds by

219 F.3d 698 (7th Cir. 2000). The Seventh Circuit rejected

the prosecution’s contention that the case was controlled by

decisions of this Court holding that the Sixth Amendment

does not exclude all government employees (or job

applicants) from serving on juries. As the Seventh Circuit

explained, the juror in Smith v. Phillips, the last of those

cases, “was not an employee of the office; had no actual or

perceived access to confidential information within the office;

and had done little more than demonstrate an interest in the

office. ** * A 15-year employee inside the prosecutor’s

office is in a materially different position:” Polichemi, 219

F.3d at-705.

In contrast to these decisions, courts in several other states

have embraced the approach adopted by the Wisconsin

Supreme Court majority in the decision below. The Alabama

Court of Criminal Appeals’ opinion in Lowe v. State, 384 So.

2d 1164 (1980), is illustrative. In that case, the trial court

denied a criminal defendant’s challenge for cause of a juror

employed by the district attorney. /d. at 1170-1171. Relying

on this Court’s Sixth Amendment holding in United States v.

Wood, 299 U.S. 123 (1936), that employment by an agency of

the federal government was not in itself grounds for

excluding a juror from sitting in a federal criminal case, the

Alabama court upheld the trial judge’s refusal to dismiss the

district attorney’s employee. After quoting parts of two

paragraphs from Wood, the Alabama court stated: “In the

case at bar, there was no proof that the venire person would

not render a fair, just, and impartial verdict. The fact that she

was employed by the district attorney’s office did not alone

impute bias as a matter of law.” Lowe, 384 So. 2d at 1171.

Other state courts have held that a juror’s simple

disclaimer of bias can overcome any presumption that his

employment will affect his fitness to serve. In State v. Scales,

443 S.E.2d 124 (1994), for example, the North Carolina Court

of Appeals interpreted that State’s general disqualification

provision, which North Carolina’s Supreme Court had

previously described as a “codification” of this Court’s Sixth

Amendment jurisprudence, State v. Hightower, 417 S.E.2d

237, 240 (1992), to allow a member of the district attorney’s

staff to serve on a criminal jury, notwithstanding the

defendant’s objection because the “juror * * * stated that

although it might be difficult, he thought he could follow the

law.” Scales, 443 S.E.2d at 127; accord Roubideaux v. State,

707 P.2d 35, 36 (Okla. Crim. App. 1985) (sustaining trial

court’s refusal to dismiss juror employed by district attorney

because “she claimed during voir dire that she had not

received any knowledge or opinion of the case as a result of

her work”); Eubanks v. State, 635 S.W.2d 568, 572 (Tex.

App. 1982) (upholding trial court’s refusal to dismiss from

the jury an assistant district attorney in the prosecutor’s office

because “[a]lthough he had been employed by the District

Attorney’s office for seven months, he testified that he had no

personal knowledge of th[e] case{] and that he had no prior

knowledge of this case * * * [and ujnder further questioning

{he] stated that his association with the district attorney’s

office would have no bearing whatsoever on how he voted in

the case’”’).

One state appellate court has taken an intermediate

position. In Henry v. State, 586 So. 2d 1335 (Fla. Dist. Ct.

App. 1991), a criminal defendant sought dismissal for cause

of a legal secretary employed by the state attorney. Relying

in part on Sixth Amendment precedent, id. at 1337 (citing

Leon v. State, 396 So. 2d 203 (Fla. Dist. Ct. App. 1981)), the

Florida appellate court found no per se bar to jury service

under these circumstances, but a very strong presumption

against it:

Although [the secretary’s] employment at the state

attorney’s office does not provide an inherent reason to

preclude her service on the jury, her employment presents

a compelling inference that she would be partial to the

state. Absent a strong showing to the contrary, the failure

to exclude such juror for cause constitutes an abuse of

discretion.

Ibid. In light of the juror’s “equivocal and ambiguous

responses” to the trial court’s initial questions about her

partiality, the appellate court held that even her “unequivocal”

answers to the tnal court’s subsequent questions were

insufficient to dispel a presumption of bias. Jbid.; cf. id. at

1338 (Cope, J., specially concurring) (arguing that court

should have adopted a categorical bar, rather than a strong

presumption).

While many States’ rules concerning juror impartiality

have been established in judicial decisions, other States have

addressed the subject through legislation or court rule. But

these measures themselves have been enacted and interpreted

in the shadow of judicial decisions construing the Sixth

Amendment. See, e.g., Ajabu v. State, 693 N.E.2d 921, 938

(Ind. 1998) (“[W]e presume the General Assembly did not

intend to legislate in conflict with the federal constitution.”);

State v. Kennedy, 357 S.E.2d 359, 363 (N.C. 1987) (finding

that statute regulating for-cause challenges in criminal trials is

“a codification of” a particular Supreme Court interpretation

of the Sixth Amendment applied “generally to qualifying

jurors in all cases”). Unsurprisingly, these statutes and rules

(and the decisions interpreting them) replicate the sharp

conflicts among judicial decisions interpreting the Sixth

Amendment.

In particular, Alaska, Louisiana, and Colorado have each

adopted rules that clearly foreclose jurors like Charlotte T.

from serving in criminal cases brought by their employer.

Alaska Rule of Criminal Procedure 24(c)(10) entitles

defendants to have a prospective juror removed on the ground

that he or she “is the * * * employee * * * of one of the

attorneys,” while another section of that rule authorizes

challenges grounded on the prospective juror’s employment

“by dn agency, department * * * or other unit of the State of

Alaska, including a municipal corporation, which is directly

involved in the case to be tried.” -/d. at 24(c)(14). Louisiana

has a more focused exclusion, allowing the for-cause

challenge of a criminal juror whenever “(t]he relationship * *

* by * * * employment * * * between the juror and * * * the

district attorney * * * is such that it is reasonable to conclude

that it would influence the juror in arriving at a verdict.” La.

Code Crim. Proc. Ann. art. 797(3) (1998); see State v.

Alexander, 620 So. 2d 1166, 1167-1168 (La. 1993) (finding

under the statute that an employee of Louisiana Attorney

General’s office was subject to for-cause challenge). The

Colorado Supreme Court has interpreted that State’s rule

providing a right to remove for cause any “employee of a

public law enforcement agency or public defender’s office,”

Colo R. Crim Proc. 24(b)(1)(XII), very broadly: “To insure

that a jury is impartial in both fact and appearance, a

prospective juror who has even a tenuous relationship with

any prosecutorial or law enforcement arm of the state should

be excused from jury duty in a criminal case.” Ex rel. R.A.D.,

586 P.2d 46, 47 (1978); see also Colo. Rev. Stat. § 16-10-

103(k) (2003).

Oregon, Washington, and California have interpreted

ambiguous statutory for-cause provisions to require the per se

exclusion from criminal juries of employees of the

prosecuting office. Although the Oregon Supreme Court

declined to read section 136.220 of the Oregon Revised

Statutes, which provides for disqualification of a juror who is

“in the employment” of the criminal “{c]omplainant,” Or.

Rev. Stat. § 136.220(2)(c), (3)(2005), as requiring exclusion

of all government employees (on the theory that criminal

prosecutions are brought by the State), it held those

provisions would require disqualification “of persons

[employed by] * * * persons who verify or swear to an

accusatory instrument, such as a prosecuting attorney.” State

v. Rogers, 836 P.2d 1308, 1318 (Or. 1992).

The Washington Court of Appeals similarly rejected a

claim that a Washington law entitling defendants to remove

potential jurors who stand “in the relation of * * * master and

servant * * * to a party” or “in the employment for wage[s] of

a party,” Wash. Rev. Code § 4.44.180 (2006); Wash. Super.

Ct. Crim. R. 6.4(c)(2) (making section 4.44.180 of the

Revised Code of Washington applicable to criminal juries),

required exclusion of all state employees from juries in state

criminal prosecutions. State v. Johnson, 712 P.2d 301, 304

(Wash. App. 1985). Nevertheless, the court made clear that

individuals such as Charlotte T. fell squarely within the

provision’s bar:

In modern times, it is unlikely that jurors would be

influenced by their employment relationship with an arm

of the state that is not prosecuting the criminal action.

We believe that in order for a government employee to

stand “in relation of . . . master and servant .. . to the

adverse party” or to be an employee of “the adverse

party” under RCW 4.44.180(2), there must be a

substantial relationship between the interests the

prospective juror has in his employment and the interest

the government is advancing as a litigant.

‘Ibid. (emphasis added; citation omitted) (quoting text as it

stood prior to a 2003 amendment that replaced “the adverse

party” with “a party”).

In light of the Sixth Amendment, the California courts

have also interpreted an ambiguous state statute to require

exclusion from criminal juries of employees of the office

prosecuting the case. Immediately after quoting the relevant

Sixth Amendment discussion in Block -and in Justice

O’Connor’s concurrence in Phillips, a California court of

appeals interpreted a statute “preclud[ing] jury service by one

who has ‘stood. . . in the relation of attorney and client... .

with the attorney for either party,’” to reach employees of the

district attorney’s office prosecuting the case. People v.

Terry, 35 Cal. Rptr. 2d 729, 731 (1995). It wrote:

[T]he thrust and p...pose of [the statute,] if not perhaps its

specific wording, requires that an attorney who is a

member of the firm of counsel trying a case should not be

permitted, over objection, to serve on the jury. This rule

should apply as much to members of the district

attorney’s office as to any other firm of lawyers.

Id. at 732.

Other states, by contrast, have failed to include employees

of the prosecuting office among those categories of people

who are per se excluded by statute or court rule from jury

service where their employer is the attorney prosecuting the

case. North Dakota, for example, specifically enumerates

through statute the permissible grounds for challenges for

implied bias and expressly prohibits challenges for implied

bias on any other grounds. N.D. Cent. Code § 29-17-36

(2006) (stating that “[a] challenge for implied bias of a juror

may be taken for all or any of the following causes and for no

other”). Because this statute fails to mention employment by

the prosecutor among its listed “causes,” a criminal defendant

in North Dakota could successfully challenge an employee of ©

the prosecuting office only by passing the high hurdle of

actual bias.

The lower state and federal courts are deeply divided over

what the Sixth Amendment’s central guarantee of trial by an

impartial jury requires. In many jurisdictions, employees of

the prosecuting office can, over the defendant’s objection,

help decide the defendant’s guilt or innocence. In others, they

cannot. Only this Court can resolve the conflict.

Il. The Wisconsin Supreme Court’s Decision Permitting

An Employee Of The Prosecuting Office To Sit On A

Criminal Jury Is Inconsistent With The Sixth

Amendment And The Common Law Principles On

Which It Rests

Although the conflict among the lower courts provides

sufficient reason to grant certiorari, this Court’s review is

further warranted because the Wisconsin Supreme Court’s

construction of the Sixth Amendment stands deeply at odds

with the principles that the Amendment reflects and with the

concerns of fundamental fairness that led this Court to

“incorporate” it though the Fourteenth Amendment.

The Framers of the Bill of Rights attached great

importance to jury impartiality and to the right to challenge

jurors, which is necessary to protect it. Thomas Jefferson, in

his first inaugural address, deemed “trial by juries impartially

selected” to be one of “the essential principles of our

Government.” Thomas Jefferson, First Inaugural Address

(Mar. 4, 1801), in Stephen Howard Browne, Jefferson’s Call

for Nationhood: The First Inaugural Address xv-xvi (2003).

Likewise, his fellow Virginian Patrick Henry famously stated

that the right of challenging jurors to ensure an impartial

panel “is as valuable as the trial by jury itself.” 3 Jonathan

Elliot, The Debates in the Several State Conventions, on the

Adoption of the Federal Constitution as Reeommended by the

General Convention at Philadelphia in 1787, at 542

(Washington, 1836) (Elliot, Debates).”

In addition, this Court has consistently held that the Sixth

Amendment incorporates the common law’s_ central

protections, including those involving the right to trial by

jury, juror fairness, and juror impartiality. See United States

v. Booker, 543 U.S. 220, 244 (2005) (discussing “the interest

in fairness and reliability protected by the right to a jury

trial—a common-law right that defendants enjoyed for

centuries and that is now enshrined in the Sixth

Amendment”); Johnson v. Louisiana, 406 U.S. 366, 370-371

Henry further noted that he “would rather the trial by jury were

struck out all together” than lose the right to challenge jurors, Elliot,

Debates, at 542, and George Mason, invoking a history of “the best

men suffer{ing}] by weak and partial juries,” likewise emphasized his

concern that the proposed Constitution did not explicitly permit the

“right of challenging or excepting to the jury.” /d. at 528.

(1972) (Powell, J., concurring) (“The reasoning that runs

throughout this Court’s Sixth Amendment precedents is that,

in amending the Constitution to guarantee the right to jury

trial, the Framers desired to preserve the jury safeguard as it

was known to them at common law.”); see also Crawford v.

Washington, 541 U.S. 36; 68 (2004) (holding that with

respect to the admission of testimonial evidence the Sixth

Amendment Confrontation Clause “demands what the

common law required * * *.”).

At the time the Sixth Amendment was adopted,

defendants were plainly entitled to have employees or

servants ofa party in the action removed from the j jury. In

Commentaries on the Laws of England, Blackstone wrote,

“that [a juror] is the party’s master, servant, counsellor,

steward or attorney, or of the same society or corporation

with him: all these are principal causes of challenge; which, if

true, cannot be overruled.” 3 William Blackstone,

Commentaries *363.° Courts in the American colonies and

nascent States followed Blackstone’s standard well into the

nineteenth century. Thus, Peter Oxenbridge Thacher, a

Boston judge who wrote an 1834 treatise on “the Methods

Known in the Law of Massachusetts, to Secure the Selection

and Appointment of an Impartial Jury,” adopted Blackstone’s

treatment of the issue nearly verbatim. Peter Oxenbridge

Thacher, Observatians-en Some of the Methods Known in the

Law of Massachusetts, to Secure the Selection and

> A “principal challenge” in Blackstone’s time is equivalent to a

challenge for implied bias today, such as the one at issue in the instant

case. In the Eighteenth Century, a juror subject to a principal

challenge would be evaluated solely based on his relationship with a

party to the case, regardless of any actual, subjective bias. As

Blackstone wrote, “[a] principal challenge is such, where the cause

assigned carries with it prima facie evident marks of suspicion, either

of malice or favour.” William Blackstone, 3 Commentaries *363.

Such principal challenges, Blackstone explained, “cannot be overruled,

for jurors must be omni exceptione majores.” Ibid.

Appointment of an Impartial Jury, in Cases Civil and

Criminal 14-15 (Boston, Russell, Odiorne & Co. 1834).

Other Eighteenth-Century commentators agreed with

Blackstone that “servants” of a party were excludable on a

principal challenge. One commentator, writing in 1752,

noted that “[i]f a Juror be of Counsel, Servant, or of the Robes

or Fee of either Party, it is a principal Challenge.” The

Complete Juryman: or, a Compendium of the Laws Relating

to Jurors 122 (London, Henry Lintot 1752). The

commentator further noted that “[i]f a Body politic or

corporate, sole or aggregate brings an Action that concerns

their Body politic or Corporation, and a Juror is [a relative of]

any that is of that Body, it is a good principal Challenge.” Jd.

at 116.

Charlotte T.’s jury service in this case poses no less a risk

of bias than did the jury service of those addressed by

Blackstone and his contemporaries. A juror employed by the

agency prosecuting a particular criminal case should be

subject to the same challenges for cause as one whose

employer is a party in a civil case (or a defendant in a

criminal case). The rationales for permitting such a challenge

are identical: the juror/employee may consciously or

unconsciously decide to rule in favor of her employer to avoid

being subjected to retaliation at work. Even if the juror feels

confident that her employer would not take formal adverse

actions in the event of a disappointing verdict, she may still

seek to avoid the awkwardness or tension that might arise in

her relationships with co-workers if the jury on which she sat

were to rule against (or fail to rule in favor of) her employer.

No less risk of bias exists with jurors, such as Charlotte

T., who are employees of the prosecuting agency. Although

the motto inscribed in the Attorney General’s rotunda in the

United States Department of Justice states that “the

[government] wins its [case] whenever justice is done,” Seth

P. Waxman, “Presenting the Case of the United States as It

Should Be”: The Solicitor General in Historical Context,

n.113, at http://www.usdoj.gov/osg/aboutosg/sgarticle.html

(June 1, 1998), the enterprise of prosecuting crime is “often

competitive,” Johnson v. United States, 333 U.S. 10, 14-

(1948), and the same pressures and concerns that might infect

a private employee/juror’s deliberations might well infect—

either consciously or unconsciously—those of a juror

employed in a subordinate role in the prosecuting office.

That the common law would exclude for reasons of implied

bias a juror who “has acted as godfather to a child of the

prosecutor,” 1 Joseph Chitty, A Practical Treatise on the

Criminal Law 541 (London, A.J. Valpy 1816), but not one

who is employed under the prosecutor himself, beggars belief.

While modern-day prosecuting agencies did not exist in

Blackstone’s time, the rationale behind-the rule that jurors are

subject to a principal challenge if they are employed by a

party to the case applies with full force to employees of

prosecuting agencies today.

For decades, this Court has recognized that the Sixth

Amendment’s express guarantee of “a speedy and public trial,

by an impartial jury” (emphasis added) overlaps with an

“independent[] require[ment],” rooted in due process, of

“impartiality [for] any jury empaneled to try a cause.”

Morgan v. Illinois, 504 U.S. 719, 726 (1992) (emphasis

added) (citing Irvin v. Dowd, 366 U.S. 717, 721-22 (1961));

see also Turner v. Louisiana, 379 U.S. 466, 471-72 (1965); In

re Murchison, 349 U.S. 133, 136 (1955). The protections of

juror impartiality afforded by the Sixth Amendment must

necessarily be at least as strong as the minimum protections

afforded by due process.

Under the Fourteenth Amendment’s “basic requirement of

due process,” a defendant is entitled to “[a] fair trial in a fair

tribunal.” Murchison, 349 U.S. at 136; see also Bracy v.

Gramley, 520 U.S. 899, 904 (1997) (“[T]he floor established

by the Due Process Clause clearly requires a ‘fair trial in a

fair tribunal.’”) (quoting Withrow v. Larkin, 421 U.S. 35, 46

(1975)). Whether the facts of a case are found by a judge or

by a jury, the Constitution mandates that the fact finder be

impartial: All parties must know “that the judge who hears

his case will apply the law to him in the same way he applies

it to any other party.” Republican Party v. White, 536 U.S.

765, 776 (2002). In the words of John Adams, found in the

First Constitution of Massachusetts:

It is essential to the preservation of the rights of every

individual, his life, liberty, property and character, that

there be an impartial interpretation of the laws, and

administration of justice. It is the right of every citizen to

be tried by judges as free, impartial and independent as

the lot of humanity will admit.

Mass. Const. of 1780, pt. I, art. XXIX.

Ensuring this requisite level of impartiality requires that

judicial proceedings remain free not only of actual bias, but

also of “even the probability of unfairness.” Murchison, 349

U.S. at 136. “Every procedure which would offer a possible

temptation * * * to forget the burden of proof required to

convict the defendant, or which might lead him not to hold

the balance nice, clear and true between the State and the

accused, denies the latter due process of law.” Tumey v.

Ohio, 273 U.S. 510, 532 (1927).

Accordingly, this Court has understood due process to

require that not even the appearance of impropriety infect

judicial proceedings—a principle embodied in the maxim that

“no man can be a judge in his own case and no man is

permitted to try cases where he has an interest in the

outcome.” Murchison, 349 U.S. at 136. Judges may not, for

example, have any pecuniary interest, no matter how small, in

the outcome of a case—a rule which applies even when the

interest is indirect, Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813

(1986) (holding that an insurer’s due process rights were

violated by a state supreme court justice’s participation in an

action seeking punitive damages for an insurer’s alleged bad-

faith refusal to pay a valid claim, when that justice, at the time

he cast the deciding vote and authored the court’s opinion,

had pending at least one very similar lawsuit against an

insurer in another state court), or due to professional

obligation, Ward v. Village of Monroeville, 409 U.S. 57

(1972) (holding that due process was violated where a mayor

responsible for village finances presided over a trial for traffic

offenses where a significant proportion of the village’s

revenues were derived from traffic fines).

The present case involves the very same problem. Having

an employee of the prosecuting attorney’s office on the jury

effectively allows the prosecutor to participate in the

judgment of his own case. A prosecutorial employee would

likely have—and certainly would appear to have—personal

interests, both pecuniary and intangible, in the case’s

outcome. She might fear that a judgment adverse to her

employer (or even just admitting in voir dire that she could

not be impartial) would jeopardize her present or future

employment opportunities. Even if she claims—or sincerely

believes herself—to be free of bias, the temptation to judge

partially and the appearance of impropriety cast a shadow on

the proceeding. Just as the Fourteenth Amendment’s

requirement of due process forbids a judge from presiding

over a case in which she has an indirect interest, the Sixth

Amendment requires at least as much from jurors.

The need for a bright-line rule is especially strong in these

situations because of the practical limitations on appellate

review to protect defendants’ Sixth Amendment nghts.

Throughout the nation, appellate review of trial courts’

resolution of for-cause challenges is so deferential that such

decisions are all but unappealable. Whether the standard of

review requires “abuse of discretion” or “manifest error,”

“(t]here is hardly any area of the law in which the trial judge

is given more discretion than in ruling on challenges of jurors

for cause.” Cook v. State, 542 So. 2d 964, 969 (Fla. 1989).

These rules reflect the practical reality that trial courts must

make multiple, sometimes scores of, jury-related decisions;

that such decisions must be based on limited information (lest

each challenge become a mini-trial); that trial judges, but not

appellate courts, are able to observe venirepersons’ demeanor;

and that reversal of conviction is a costly remedy for a

decision that, while erroneous, is sometimes unavoidable in

the press of voir dire. In this case, for example, had the

venireperson who had stated about a previous encounter with

a drunk driver that “[a]t the time, if I had had a gun, I’d have

shot him,” App., infra, 54a, or the two venirepersons who had

stated on the record that they would have had trouble being

objective and applying the presumption of innocence, id. at

6la, 63a, 67a, actually been seated over defendant’s ob-

jection, the deference given to trial court judges would have

made appeal difficult.

A bright-line rule would not only increase confidence in

judgments rendered by trial courts in criminal cases, but also

ease the burden on trial courts. That a prospective juror is an

employee of the prosecutor’s office in a criminal case can

never be irrelevant in determining potential bias. Yet, case-

by-case determination in these situations would require trial

judges to examine thoroughly the internal workings of the

prosecutor’s office, including how the actual chains of

authority operate, the degree of cooperation or interaction

between the venireperson’s division and that of the individual

actually prosecuting the case, what job and salary protections,

if any, employees enjoy, and the more informal aspects of

office culture and practice that might cause an employee to be

biased. Fact-intensive, case-by-case determination requires a

more rigorous inquiry into the actual biases of the potential

juror. See Henry v. State, 586 So. 2d 1335, 1337 (Fla. Dist.

Ct. App. 1991). An employee of the prosecutor’s office

would necessarily undergo more intense scrutiny than other

venirepersons as to potential subtle or unconscious bias. Far

better to have a simple rule, understandable by any judge,

attorney, or layperson: current employees of the prosecuting

attorney, while entirely eligible to sit on civil juries—or even

in criminal cases prosecuted by other agencies—cannot sit on

juries in cases prosecuted by their own employer. The

Framers and the common law recognized this wisdom and

this Court’s intervention is necessary to reestablish it.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

DANIEL R. ORTIZ

University of Virginia

School of Law Supreme

Court Litigation Clinic

580 Massie Road

Charlottesville, VA 22903

(434) 924-3127

AELISON M. RITTER

Ritter, Rypel & Yasin Law

Office LLP

2266 North Prospect

Avenue, Suite 304

Milwaukee, WI 53202

(414) 274-0000

NOVEMBER 2006

MARK T. STANCIL*

Robbins, Russell, Englert,

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 41]

Washington, D.C. 20006

(202) 775-4500

DAVID T. GOLDBERG

David T. Goldberg

Law Office

99 Hudson Street, 8th Floor

New York, NY 10013 ©

(212) 334-8813

*Counsel of Record

APPENDIX

APPENDIX A

2006 WI 74

SUPREME COURT OF WISCONSIN

CASE No.:

2004AP2035—CR

COMPLETE TITLE:

State of Wisconsin,

Plaintiff-Respondent,

Dale L. Smith,

Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF

THE COURT OF APPEALS

Reported at: 279 Wis. 2d 519,

693 N.W.2d 148

(Ct. App. 2005-Unpublished)

OPINION FILED:

June 27, 2006

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: December 6, 2005

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Milwaukee

JUDGE: Russell W. Stamper

JUSTICES:

CONCURRED:

DISSENTED: ABRAHAMSON, C.J., dissents

Not PARTICIPATING:

(opinion filed).

PROSSER and BUTLER, JR., J.J.,

join in the dissent.

ATTORNEYS:

For the defendant-appellant-petitioner there were

briefs by Allison M. Ritter and Hartley Law Office,

Milwaukee, and oral argument by Allison M. Ritter.

For the plaintiff-respondent the cause was argued by

Juan B. Colas, assistant attorney general, with whom on the

brief was Peggy A. Lautenschlager, attorney general.

2006 WI 74

Notice

This opinion is subject to

further editing and

modification. The final version

will appear in the bound

volume of the official reports.

No. 2004AP2035-CR

(L.C. No. 2001CT8142)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED

Jun 27,2006 -

Dale L. Smith, Cornelia G. Clark

Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

41 JON P. WILCOX, J. The defendant, Dale L.

Smith (Smith), seeks review of an unpublished decision of the

No. 2004AP2035-CR

court of appeals,* which affirmed Smith’s judgment of

conviction for operating a motor vehicle while intoxicated,

second offense, and an order of the Milwaukee County

Circuit Court, Russell W. Stamper, Sr., Reserve Judge,

denying his motion for postconviction relief.

{2 Smith contends that at trial, he was denied his

constitutional right to’a fair and impartial jury when the

circuit court, during voir dire, denied his motion to strike a

juror for cause. Smith argues that an administrative assistant

employed by the Milwaukee County District Attorney’s

Office was objectively biased because she worked for the

same entity as the prosecuting attorney.

qj3 We hold that the circuit court reasonably

concluded that Charlotte T. (Charlotte) was not objectively

biased under the facts and circumstances, as a reasonable

person in Charlotte’s position could be impartial. Therefore,

we conclude the circuit court did not erroneously exercise its

discretion in denying Smith’s motion to strike Charlotte for

cause. Essentially, we decline to create a per se rule that

excludes potential jurors for the sole reason that they are

employed by the Milwaukee County District Attorney’s

Office. As such, the decision of the court of appeals is

affirmed.

* See State v. Smith, No. 2004AP2035-CR, unpublished slip op., 96

(Wis. Ct. App. Jan. 11, 2005).

gc ees Bm No. 2004AP2035-CR

4 In the early morning hours of October 3, 2001,

Smith was pulled over by City of Franklin Police Officer

Rebecca Fletcher (Fletcher). Based on her observations at the

scene, Fletcher requested that Smith take a Breathalyzer test

in order to determine whether he had a prohibited alcohol

concentration. According to the criminal complaint, Smith

refused to submit to the test, and Fletcher arrested him. On

October 16, 2001, a criminal complaint was filed against

Smith for unlawfully operating a motor vehicle while under

the influence of an intoxicant, contrary to Wis. Stat. §§

346.63(1)(a) and 346.65(2) (1999-2000). This was Smith’s

second such offense.

qS A jury trial began on September 30, 2003. During

voir dire, prospective juror Charlotte called to the court’s

attention that she worked for the Milwaukee County District

Attorney’s Office. Specifically, Charlotte worked as an

administrative assistant at the Children’s Court Center in

Wauwatosa. She also stated that she did not work on

investigations. When asked whether she would have a

problem being an impartial juror, Charlotte said, “No.”

. {6 Later in chambers, Smith’s counsel, Patrick D.

Wait (Wait), moved to strike Charlotte for cause. The

discussion between the court, Wait, and Assistant District

Attorney Tiffany Harris (Harris) proceeded as follows:

MR. WAIT: All right. [I'd ask Number 9. be

stuck [sic] for cause, she works for the D.A.’s

No. 2004AP2035-CR

office.

THE COURT: What’s the cause?

MR. WAIT: She works for the law firm

prosecuting this case. Her employer is

Michael McCann.

THE COURT: Is there authority for that?

MR. WAIT: I think that is for cause.

THE COURT: Is it occupational exclusion?

By virtue of [the] fact she works for the D.A.’s

office is it impossible for her to be impartial?

MR. WAIT: I don’t think I have to prove

impartiality; I think there can be a finding her

employer is prosecuting the case.

THE COURT: I understand your opinion, do

you have authority for that belief?

MR. WAIT: No, I don’t have any cases I can

cite.

THE COURT: State.

MS. HARRIS: Judge, I really don’t think—I

don’t know her. She doesn’t work in this

No. 2004AP2035-CR

particular building; she’s out at Children’s

Court. I don’t think there is any authority for

that.

THE COURT: Request denied. That was

Number 9.

7 Besides Charlotte, Smith raised challenges to two

other potential jurors in voir dire. These challenges were

denied by the circuit court. In his brief to this court, Smith

further argues that two additional jurors were “very

problematic from a defense perspective.”

48 First, Juror No. 2 stated that she had a friend who

almost killed somebody while driving under the influence,

and she had several friends arrested for driving under the

influence with whom she did not associate anymore.

Attorney Wait then asked her the following:

MR. WAIT: Does that make it more difficult

for you to judge a case fairly?

JUROR NO. 2: No, I don’t think so.

MR. WAIT: Do you think it’s going to be

difficult for you to be impartial here?

JUROR NO. 2: Yes.

Later in chambers, the court posed the following questions to

No. 2004AP2035-CR

Juror No. 2:

THE COURT: Can you be impartial with

respect to this case?

JUROR NO. 2: I think so.

THE COURT: At this point, are you inclined

to believe one side as opposed to the other

side?

JUROR NO. 2: Not necessarily, no.

THE COURT: You are at point zero?

JUROR NO. 2: Yes.

THE COURT: You are fair and neutral as to

each side?

JUROR NO. 2: Yes.

After this questioning, Wait did not continue with his

argument that Juror No. 2 should be struck for cause. The

court had previously noted that difficulty in remaining

impartial is not sufficient to excuse a juror.

49 Next, Wait challenged Juror No. 6, who informed

the court that he encountered a drunk driver while driving

with his wife and children. When asked whether that

experience would make it problematic for him to sit on a case

No. 2004AP2035-CR

where the defendant is charged with drunk driving, Juror No.

6 stated, “I guess I’d have to hear more information. At the

time, if I had had a gun, I’d have shot him.” During later

questioning, Juror No. 6 revealed that his brother was put into

a two-week coma because of a drunk driver. Wait then asked

him the following:

MR. WAIT: Is that going to affect your ability

to be impartial here?

JUROR NO. 6: I hope not, but I’m not sure.

MR. WAIT: You also said that when you saw

someone suspected of drunk driving, if you

had a gun you would have shot him.

JUROR NO. 6: I got that angry with him

because I was with my wife pes ee

MR. WAIT: Do you feel you can be fair here

today?

JUROR NO. 6: I can try. |

Later.in chambers, the following ae occurred:

THE COURT: The real question is, can you

be impartial, fair, and neutral/in this case?

JUROR NO. 6: I understand. I don’t know, I

10a

No. 2004AP2035-CR

haven’t heard the evidence yet. I would say

absolutely not if I found out the person had

denied the police the right to check his blood

or check that if he was. To me that tells me he

was drunk. I don’t care, he should go to jail.

THE COURT: You don’t know the answer to

that question, right?

JUROR NO. 6: No.

THE COURT: Given that you don’t know the

answer as to what the evidence is going to say,

I need you to tell us at this time, right now, are

you at zero neutral, or are you leaning one way

or the other?

JUROR NO. 6: I’m trying to stay at neutral.

THE COURT: Where are you?

JUROR NO. 6: I believe I am neutral.

“THE COURT: You have the best opinion of

where you are, and you believe you are

neutral. That’s your belief, right?

JUROR NO. 6: Yes.

Ultimately, the court concluded that Juror No. 6 said he could

lla

No. 2004AP2035-CR

be impartial, and it refused to strike him for cause.

10 In addition to these two jurors, Smith contends

that Jurors Nos. 3 and 11 were problematic. Juror No. 3 was

a police officer who had arrested people for operating while

intoxicated. She said that she thought she could be impartial.

Wait did not challenge Juror No. 3 for cause during voir dire. -

{11 Finally, in response to Wait’s question of whether

anyone on the jury had any feelings already developed about

the defendant, Juror No, 11 stated, “I kind of feel you would

not be here unless you were doing something wrong.” Wait

then asked, “[s]o in that regard, you’ve already formed an

opinion?” Juror No. 11 responded with “[p]erhaps” followed

by “Yes. I do feel I can be impartial.” In chambers, Wait

informed the court that “[r]egarding Number 11, 1 wrote ‘he

has formed an opinion as to this defendant that he’s guilty.””

The court noted, however, that Juror No. 11 said he could be

impartial. There was no further discussion about Juror No.

11. 3

412 Smith ultimately used his four peremptory

challenges to strike Jurors Nos. 2, 3, 6, and 11. Charlotte was

seated on the jury, and on October 1, 2003, Smith was

unanimously convicted and sentenced to 90 days of jail. :

413 After his conviction, Smith filed a postconviction

motion for an order vacating the judgment and for a new trial

based upon his being denied the right to an impartial jury as

guaranteed by the Sixth Amendment of the United States

12a

No. 2004AP2035-CR

Constitution and Article I, Section 7 of the Wisconsin

Constitution. The circuit court denied his motion, concluding

that “the mere fact that a juror works for the prosecuting

office, without more, does not in and of itself disqualify the

juror from service.... Taking all [the] factors into

consideration, the court cannot infer that a reasonable person

in Juror T.’s position would be biased.”

{14 On appeal, the court of appeals primarily relied

on two of our previous decisions: State v. Faucher, 227 Wis.

2d 700, 596 N.W.2d 770 (1999), and State v. Louis, 156 Wis.

2d 470, 457 N.W.2d 484 (1990), in reaching its decision.

Based on Faucher, the court noted that only objective bias,

not statutory or subjective bias, was at issue. The court also

analogized the facts in this case to Louis in that the

prospective juror and the prosecutor did not know each other.

See Smith, No. 2004AP2035-CR, 96 (“The facts of record

here suggest that this case is akin to Louis. Charlotte,

although employed by the Milwaukee County District

Attomey’s Office, did not know the prosecutor in this case

and the prosecutor did not know Charlotte.”). The court of

appeals agreed with the circuit court that “‘the mere fact that

a juror works for the prosecuting office, without more, does

not in and of itself disqualify the juror from service.’” Id.

The judgment and order of the circuit court were therefore

affirmed.

415 Smith then filed a petition for review in this

court, and we granted review.

13a

No. 2004AP2035-CR

“Il

416 The sole question we must address on appeal is

whether Smith was denied the right to an impartial jury by the

Circuit court’s refusal to strike Charlotte for cause. Smith

argues that Charlotte should have been disqualified as

objectively biased because she was employed by the

prosecuting attorney. Essentially, Smith seeks a per se rule in

Wisconsin that employees of the Milwaukee County District

Attorney’s Office cannot serve on juries in criminal cases

prosecuted by their employer. Alternatively, the State argues

that Charlotte did not demonstrate objective bias, and this

court should not create a per se disqualification for such

employees.

417 We believe in this case, the circuit court

reasonably concluded that Charlotte was not objectively

biased under the totality of the circumstances. We further

refuse to create a per se exclusion of potential jurors that are

employed by the Milwaukee County District Attorney. In our

view, the exclusion of jurors on the basis of objective bias is

best left to the case-by-case discretion of the circuit court.

418 “[A] criminal defendant’s right to receive a fair

trial by a panel of impartial jurors is guaranteed by the Sixth

and Fourteenth Amendments to the United States Constitution

and Art. I, § 7 of the Wisconsin Constitution, as well as

principles of due process.”” Faucher, 227 Wis. 2d at 715

* The Sixth Amendment to the United States Constitution provides in

part: “In all criminal prosecutions, the accused shall enjoy the right to a

14a

No. 2004AP2035-CR

(citing Louis, 156 Wis. 2d at 478; State v. Gesch, 167 Wis. 2d

660, 666, 482 N.W.2d 99 (1992)). “To ensure an impartial

jury, Wis. Stat. § 805.08(1) provides for juror disqualification

if a prospective juror ‘is not indifferent in the case.’” State v.

Mendoza, 227 Wis. 2d 838, 847, 596 N.W.2d 736 (1999).°

419 “Prospective jurors are presumed impartial, and

the challenger to that presumption bears the burden of

proving bias.” Louis, 156 Wis. 2d at 478. ~ We have

recognized three types of bias: (1) statutory bias; (2)

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed[.]” Article I, Section 7 of

the Wisconsin Constitution provides in part: “In all criminal prosecutions

the accused shall enjoy the right . . . in prosecutions by indictment, or

information, to a speedy public trial by an impartial jury of the county or

district wherein the offense shall have been committed{.]”

° Wisconsin Stat. § 805.08(1) (2003-04) reads in full:

The court shall examine on oath each person who is called as

a juror to discover whether the juror is related by blood,

marriage or adoption to any party or to any attorney

appearing in the case, or has any financial interest in the

case, or has expressed or formed any opinion, or is aware of

any bias or prejudice in the case. If a juror is not indiffereni

in the case, the juror shall be excused. Any party objecting

_ for cause to a juror may introduce evidence in support of the

objection. This section shall not be construed as abridging in

any manner the right of either party to supplement the

court’s examination of any person as to qualifications, but

such examination shall not be repetitious or based upon

hypothetical questions.

15a

No. 2004AP2035-CR

subjective bias; and (3) objective bias. Faucher, 227 Wis. 2d

at 716.’ Statutory bias is described by Wis. Stat. § 805.08(1)

(2003-04) and concerns jurors who are “related by blood,

marriage or adoption to any party or to any attorney appearing

in the case, or has any financial interest in the casef.]”

Charlotte does not fit within any of the categories constituting

statutory bias.

420 Subjective bias “describe[s] bias that is revealed

through the words and the demeanor of the prospective juror.”

Faucher, 227 Wis. 2d at 717. Stated another way, subjective

bias “refers to the bias that is revealed by the prospective

juror on voir dire: it refers to the prospective juror’s state of

mind.” Jd. Wisconsin Stat. § 805.01(1) (2003-04) also

speaks to subjective bias, in that a juror who has “expressed

or formed any opinion, or is aware of any bias or prejudice in

the case[,]” shall be excused. Wis. Stat. § 805.08(1); accord

Faucher, 227 Wis. 2d at 717. Smith does not maintain that

Charlotte was subjectively biased, nor does the record

” In State v. Faucher, 227 Wis. 2d 700, 716, 596 N.W.2d 770 (1999),

we first adopted these three terms to describe juror bias. Previously,

courts of this state used the terms implied bias, actual bias, and inferred

bias. /d. at 716. Generally, the terms statutory bias and subjective bias

closely correspond, respectively, to the terms implied bias and actual bias.

Id. at 716 n.S. Furthermore, the term objective bias “in some ways

contemplates both our use of the terms implied and inferred bias.” /d. at

716. However, as we emphasized in Faucher, “the case law does not

always use the former terms in a consistent manner, [and] there is not an

absolute, direct correlation between the former terms and the terms we

adopt today.” Jd. at 716-17.

16a

No. 2004AP2035-CR

demonstrate that Charlotte presented any subjective bias.

During voir dire, Wait asked Charlotte the following

question: “Even though you work in the district attorney’s

office and the district attorney’s office is prosecuting this

action, do you feel you can be totally impartial and fair about

this case?” To this, Charlotte answered simply, “Yes.”

421 In this case, we are concerned with objective

bias.

[T]he focus of the inquiry into “objective bias”

is not upon the individual prospective juror’s

mind, but rather upon whether the reasonable

person in the individual prospective juror’s

position could be impartial. When assessing

whether a juror is objectively biased, a circuit

court must consider the facts and

circumstances surrounding the voir dire and

the facts involved in the case. However, the

emphasis of this assessment remains on the

reasonable person in light of those facts and

circumstances. ...[W]hen a prospective juror

is challenged on voir dire because there was

some evidence demonstrating that the

prospective juror had formed an opinion or

prior knowledge, [] whether the juror should

be removed for cause turns on whether a

reasonable person in the prospective juror’s

position could set aside the opinion or prior

knowledge. /State v.] Ferron, 219 Wis. 2d

[481], 498, 579 N.W.2d 654 [(1998)].

17a

No. 2004AP2035-CR

Faucher, 227 Wis. 2d at 718-19.

22 The standard of review for whether a juror is

objectively biased is a mixed question of fact and law. /d. at

720. “[A] circuit court’s findings regarding the facts and

circumstances surrounding voir dire and the case will be

upheld unless they are clearly erroneous. Whether those facts

fulfill the legal standard of objective bias is a question of

law.” Id.

This court does not ordinarily defer to the

circuit court’s determination of a question of

law. However, a circuit court’s conclusion on

objective bias is intertwined with factual

findings supporting that conclusion.

Therefore, it is appropriate that this court give

weight to the circuit court’s conclusion on that

question.

The circuit court is particularly well-positioned

to make a determination of objective bias, and

it has special competence in this area. It is

intimately familiar with the voir dire

proceeding, and is best situated to reflect upon

the prospective juror’s subjective state of mind

which is relevant as well to the determination

of objective bias. We therefore give weight to

the court’s conclusion that a prospective juror

is or is not objectively biased. We will reverse

18a

No. 2004AP2035-CR

its conclusion only if as a matter of law a

reasonable judge could not have reached such

a conclusion.

‘State v. Lindell, 2001 WI 108, 939, 245 Wis. 2d 689, 629

N.W.2d 223 (quoting Faucher, 227 Wis. 2d at 720-21).

423 Applying these standards, we hold that a

reasonable circuit court judge could conclude that Charlotte

was not objectively biased under the totality of the facts and

circumstances. Therefore, the circuit court did not

erroneously exercise its discretion in failing to strike

Charlotte for cause.

24 In this case, the State of Wisconsin was

represented by the Milwaukee County District Attorney’s

Office, located in the Courthouse Complex in downtown

Milwaukee. Charlotte serves as an administrative assistant

for the District Attorney’s Office located in the Children’s

Court Center in Wauwatosa. She does not work on

investigations. Furthermore, the record does not show any

indication that Charlotte recognized Harris or vice versa.

There is also no evidence that Charlotte had any contact with

Harris, any prior familiarity with the case, or any work

connected to the office in Milwaukee.

425 Additionally, both attorneys pressed Charlotte to

consider whether her position as an administrative assistant

for the District Attorney would influence her decision, and

each time she responded unequivocally that she could be fair

19a

No. 2004AP2035-CR

and impartial. Although we recognize that “[i]t is not always

enough that a prospective juror assures counsel or the court

that he or she will be impartial[,]” Lindell, 245 Wis. 2d 689,

48, the subjective state of mind of the juror is an important

consideration in the overall determination of objective bias.

Id., 439.

426 Smith relies on Justice O’Connor’s concurrence

in Smith v. Phillips, 455 U.S.-209, 221-22 (1982), for. his

position that Charlotte should have been dismissed as

objectively biased because she was employed by the District

Attorney’s Office.

While each case must turn on its own facts,

there are some extreme situations that would

justify a finding of implied bias. Some

examples might include a revelation that the

juror is an actual employee of the prosecuting

agency, that the juror is a close relative of one

of the participants in the trial or the criminal

transaction, or that the juror was a witness or

somehow involved in the criminal transaction.

Phillips, 455 U.S. at 222 (O’Connor, J., concurring). What

Smith fails to discuss, however, is the controlling majority

opinion of Phillips, and the United States Supreme Court’s

consistent. position that government employees are not per se

disqualified from serving as jurors in criminal cases. See, —

e.g., Frazier v. United States, 335 U.S. 497, 513 (1948)

(concluding that a government employee, merely by virtue of

20a _

No. 2004AP2035-CR

his government employment, was neither more nor less

biased than a nongovernment employee); United States v.

Wood, 299 U.S. 123, 149 (1936) (“We think that the

imputation of bias simply by virtue of governmental

employment, without regard to any actual partiality growing

out of the nature and circumstances of particular cases, rests

on an assumption without any rational foundation.”).

27 In Phillips, the Court refused to make a per se

exclusion on the ground of implied bias of a juror who had

pursued employment with the district attorney prosecuting the

case. Phillips, 455 U.S. at 221. After the defendant was

convicted in state court, he sought federal habeas relief, and

the district court imputed bias, arguing the average man in the

juror’s position would believe his decision as a jury member

would affect his job application. /d. at 214. The Court

reversed and held that there was no basis for this finding

when the defendant failed to show the juror was actually

biased. /d. at 215-18. In the words of the Court, “due process

does not require a new trial every time a juror has been placed

in a potentially compromising situation. Were that the rule,

few trials would be constitutionally acceptable.” /d. at 217.

428 We fully recognize there may be situations where

an employee of the Milwaukee County District Attorney will

be objectively biased. Indeed, “‘we caution and encourage

the circuit courts to strike prospective jurors for cause when

the circuit courts “reasonably suspect” that juror bias exists.’”

Lindell, 245 Wis. 2d 689, 949 (quoting Ferron, 219 Wis. 2d at

495-96). However, permitting an administrative assistant to

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No. 2004AP2035-CR

serve on a jury who works at a different office in a different

city than the prosecuting office and who otherwise knows

nothing about the case, the defendant, and does not even

recognize the prosecutor is not such an “extreme situation”

that we must conclude the circuit court erred in refusing to

strike Charlotte for cause.

29 Smith also contends that there is no meaningful

distinction between this case and the Seventh Circuit decision

of United States v. Polichemi, 219 F.3d 698 (7th Cir. 2000).

In Polichemi, one of the jurors, Lorena Nape, was a 15-year

employee of the United States Attorney’s Office for the

Northern District of Illinois, the prosecuting attorney in the

case. /d. at 703. Nape worked as a secretary in the Civil

Division, and there was evidence in the record that she

sometimes worked on matters from the Criminal Division.

United States v. Polichemi, 201 F.3d 858, 861-62 (7th Cir.

2000).* Furthermore, Nape admitted to recognizing the

names of the prosecuting attorneys in the case, and being

aware that they worked in her office. /d. at 862. She also

stated that she could be fair and impartial. Polichemi, 219

F.3d at 703. The defendants moved to strike Nape for cause

on the ground of implied bias, but the district court denied the

motion. Jd.

* This earlier version of United States v. Polichemi, 201 F.3d 858 (7th

Cir. 2000), was later partially vacated by the Seventh Circuit. See United

States v. Polichemi, 219 F.3d 698, 702 (7th Cir. 2000). We cite to the

earlier version solely for factual detail.

22a

y No. 2004AP2035-CR

430 The Seventh Circuit reversed the defendants’

convictions and held that although Nape may have been quite

capable of maintaining her objectivity and “government

employment alone is not, and should not be, enough to trigger

the rule under which an employee is disqualified from serving

as a juror in a case involving her employer,” id. at 704, there

are relationships that are “so close that the law errs on the side

of caution.” Jd. The Polichemi court concluded that the

relationship between Nape and the prosecuting attorney was

just such a relationship.

4931 Although there are factual similarities between

Polichemi and this case, unlike Nape, Charlotte did not work

on any matters for the Milwaukee office, nor did she

recognize the prosecutor. In other words, the relationship was

even more remote in this case than in Polichemi.

Furthermore, Polichemi is, of course, not binding on this

court. In Wisconsin, the court has generally been disinclined

to create bright-line rules regarding juror exclusions. See

Louis, 156 Wis. 2d at 479 (citations omitted) (“Both the

United States Supreme Court and this court have been

reluctant to exclude groups of persons from serving as petit

jurors as a matter of law.”). Instead, this court has preferred

to leave the determination of bias in the able discretion of the

circuit court. See id. (citing Hammill v. State, 89 Wis. 2d 404,

415, 278 N.W.2d 821 (1979)) (“[T]he circuit court has been

given broad discretion to ensure that the jury as finally

selected is impartial.”).

432 Like the court of appeals, we believe Louis is

23a

No. 2004AP2035-CR

particularly persuasive. In Louis, the circuit court refused to

strike for cause two police officers despite the fact that the

State’s chief witness worked in the same police department

and the officers recognized the witness. Jd. at 474. We held

that the officers were not per se ineligible to serve on a jury

and concluded that the circuit court properly exercised its

discretion in determining that the two officers were not

actually biased. /d.-

{33 We first noted that police officers were not

among those groups the legislature had expressly excluded

from service. Jd. at 479-80. That is, law enforcement officers

are not statutorily biased. Faucher, 227 Wis. 2d at 722. We

also analyzed whether the officers demonstrated actual bias,

or in today’s terms, subjective bias. /d. at 723. Based on the

questions posed to the officers at voir dire, the circuit court

concluded that the officers could remain impartial and decide

the case solely on the evidence presented. Louis, 156 Wis. 2d

at 484. The record did not demonstrate otherwise; thus, the

circuit court did not err in determining that the officers did

not have actual bias. Jd.

434 Finally, we observed that “[a] prospective juror’s

knowledge of or acquaintance with a participant in the trial,

without more, is insufficient grounds for disqualification.”

Id. at 484 (citing State v. Zurfluh, 134 Wis. 2d 436, 438, 397

N.W.2d 154 (Ct. App. 1986)). In Faucher, we equated this

language with our formulation of the objective bias standard

and noted that the police officers were not objectively biased

as “a reasonable person in the position of a law enforcement

24a

No. 2004AP2035-CR

officer could remain impartial despite working in the same

department as a state witness.” Faucher, 227 Wis. 2d at 722.

435 Ultimately, we concluded in Louis that a per se

exclusion of police officers was not in accord with the great

weight of state and federal authority. See Louis, 156 Wis. 2d

at 480-83. Furthermore, we agreed with the following

declaration of the Second Circuit Court of Appeals:

“This court does not choose to create a set of

unreasonably constricting presumptions that

jurors be excused for cause due to certain

occupational or other special relationships

which might bear directly or indirectly on the

circumstances of a given case, where, as here,

there is no showing of actual bias or

prejudice.”

Id, at 483 (quoting Mikus v. United States, 433 F.2d 719, 724

(2d Cir. 1970)). Thus, as we refused to exclude police

officers from juries on a per se basis, so too do we refuse to

exclude employees of the Milwaukee County District

Attorney’s Office on a per se basis. Without some other

evidence that a prospective juror such as Charlotte cannot

possibly be impartial, he or she should not be excluded solely

on the basis of their employment.’

* We further believe that State v. Louis, 156 Wis. 2d 470, 457 N.W.2d

484 (1990), presents a stronger case of objective bias than this case does.

Again, in Louis we allowed two police officers to sit on a jury even

though the officers had to evaluate the credibility of another coemployee

25a

No. 2004AP2035-CR

436 One of the few cases in which this court has

made a per se exclusion of potential jurors is Gesch, 167 Wis.

2d 660. As noted, in most cases we have refused to make a

per se disqualification. See, e.g., State v. Sarinske, 91 Wis. 2d

14, 33, 280 N.W.2d 725 (1979):

(The mere expression of a predetermined

opinion as to guilt during the voir dire does not

disqualify a juror per se. If the person can lay

aside his or her opinion and render a verdict

based on the evidence presented in court, then

he or she can qualify as an impartial trier of

fact.);

McGeever v. State, 239 Wis. 87, 96, 300 N.W. 485 (1941) (a

prospective juror’s past employment as a dance hall inspector,

under the supervision of the local district attorney and sheriff,

did not per se disqualify him from jury service).

{37 In Gesch, we held that a prospective juror who is

related to a state witness by blood or marriage to the third

degree must be struck from the jury due to an implied bias.

who was testifying as a witness. Here, Charlotte did not have to evaluate

the credibility of Harris. Thus, in our view a work-related relationship

between a juror and a witness is more indicative of objective bias than a

work-related relationship between a juror and an attorney. If the

connection in Louis was not enough for objective bias, we do not see how

the connection in this case is enough for us to conclude Charlotte was

objectively biased.

26a

No. 2004AP2035-CR

Gesch, 167 Wis. 2d at 662. We first noted that generally the

circuit court’s discretionary determination of a juror’s

subjective bias will suffice to protect the defendant’s right to

an impartial jury. Jd. at 666. “However, there are situations

in which the relationship between a prospective juror and a

participant in the trial is so close that a finding of implied bias

is mandated.” Jd. at 666-67.

438 We concluded that the circuit court conducted a

thorough search for subjective bias and found no such bias.

Id. at 667. Despite the lack of subjective bias, we held that

the juror should still have been removed for cause:

[W]here a prospective juror is related to a state

witness by blood or marriage to the third

degree, special problems exist that render a

circuit court’s search for actual bias an

inadequate protection of a defendant’s right to

an impartial jury. One such problem is the

potential for unconscious bias. It is virtually

impossible for a prospective juror to

consciously estimate how the family

relationship with a witness will affect his or

her judgment. Although no intentional actual

bias may exist, the risk of unconscious bias in

these situations is manifest. ~

Id. As such, we held that “[i]n circumstances, such as here,

the mere probability of bias is so high that in order to assure a

defendant the fundamental fairness to which the defendant is

27a

No. 2004AP2035-CR

entitled, we must imply bias and exclude the juror as a matter

of law.” Id. at 668.

q39 Later, in Faucher, we described Gesch as

follows:

Our holding in Gesch is unique. In most

circumstances...the conclusion that an

individual is objectively biased requires some

view of the facts and _ circumstances

surrounding the voir dire and the case, as well

as the prospective juror’s answers. We

therefore urge a circuit court to engage in a

thorough voir dire when a party challenges a

prospective juror through the class to which

the prospective juror belongs. However, Gesch

remains an example that some relationships are

so fraught with the possibility of bias that we

must find objective bias regardless of the

surrounding facts and circumstances and the

particular juror’s assurances of impartiality.

Faucher, 227 Wis. 2d at 724.

{40 Without more, we do not believe an employee of

the Milwaukee County District Attorney’s Office is an

example of a relationship “so fraught with the possibility of

bias” that we must per se exclude Charlotte. That Charlotte

works as an administrative assistant in the Children’s Court

establishes little more than a distant acquaintance with the

28a

No. 2004AP2035-CR.

prosecutor. Under the facts and circumstances of this case,

we conclude that the circuit court reasonably concluded

Charlotte was not objectively biased. As noted, Gesch is a

unique holding, and we do not think that standing alone, an

employee/employer relationship between a juror and the

Milwaukee County District Attorney, like a close familial

relationship, renders it utterly impossible for a potential juror

to be impartial.

Iti

441 In sum, we hold that the circuit court reasonably

concluded that Charlotte was not objectively biased under the

facts and circumstances as a reasonable person in Charlotte’s

position could be impartial. Therefore, we conclude the

circuit court did not erroneously exercise its discretion in

denying Smith’s motion to strike Charlotte for cause.

Essentially, we decline to create a per se rule that excludes

potential jurors for the sole reason that they are employed by

the Milwaukee County District Attorney’s Office. As such,

the decision of the circuit Court is affirmed.

By the Court.—The decision of the court of appeals is

affirmed.

29a

No. 2004AP2035-CR

942 SHIRLEY S. ABRAHAMSON, C.J.

(dissenting). This case raises the question whether a

challenged prospective juror is objectively biased on the basis

of her employment in the district attorney’s office that is

prosecuting the case.

43 The right to a trial by an impartial jury lies at the

very heart of due process.’ When a prospective juror is

employed by an attorney in the case to be tried, the situation

is “so fraught with the possibility of bias that we must find

objective bias regardless of the surrounding facts and

circumstances and the particular juror’s assurances of

impartiality." The employee is, I conclude, objectively

biased under the law and should, on objection, be struck for

cause from the jury.

944 Accordingly, I conclude that the circuit court

erroneously refused to strike for cause the challenged juror,

an employee of the Milwaukee County District Attorney, in - PERLE

this criminal case prosecuted by the Milwaukee County

District Attorney’s office.

45 I agree with the defendant that the circuit court’s

failure to disqualify the challenged prospective juror for cause

' Irvin v. Dowd, 366 U.S. 717, 721-22 (1961). A criminal defendant

is guaranteed the right to a trial by an impartial jury by Article I, Section 7

of the Wisconsin Constitution.

2 State v. Faucher, 227 Wis. 2d 700, 724, 596 N.W.2d 770 (1999) :

(discussing State v. Gesch, 167 Wis. 2d 660, 482 N.W.2d 99 (1992)).

30a

No. 2004AP2035-CR

is prejudicial error. The State agrees that if the circuit court

erred, the error was prejudicial. I therefore dissent.

946 In determining whether a prospective juror

manifests objective bias, the circuit court must determine

“whether the reasonable person in the individual prospective

juror’s position could be impartial.”’ The primary concern in

the objective bias analysis is whether the parties are provided

with a fair trial.*

447 The majority opinion declines to find objective

bias in the current case, reasoning that the relationship

between the assistant district attorney prosecuting the case

and the challenged prospective juror was “little more than a

distant acquaintance.”

48 I agree that the challenged prospective juror is, in

the instant case, not closely related to the assistant district

attorney prosecuting the case. The challenged prospective

juror worked in a different office, in a different community,

and on different types of cases than the assistant district

attorney prosecuting the case. Moreover, the assistant district

attorney had no direct supervisory authority over the

challenged juror.

3 Faucher, 227 Wis. 2d at 718.

4 Id. at 715.

* See majority op., 940. .

3la

No. 2004AP2035-CR

"49 Nevertheless, the assistant district attorney and

the challenged prospective juror do share the same ultimate

superior, the Milwaukee County District Attorney. The

Milwaukee County District Attorney is named as counsel

along with the assistant district attorney on the court

documents.

950 The distant degree of acquaintanceship relied

upon by the majority opinion neither addresses nor diminishes

the challenged prospective juror’s perception of the risk of an

adverse employment action. Certainly, a reasonable person

under the circumstances might perceive the possibility of the

employer being unhappy with his or her vote as a juror.° An

objectively reasonable person might (intentionally or

unintentionally, consciously or subconsciously) give the edge

to the employer in light of ties of economic interests and

loyalty.’

° | recognize that the juror is likely protected from official adverse

employment action by civil service rules and is protected from retaliatory

action by statute. See, e.g., Wis. Stat. § 103.87 (2003-04) (prohibiting

disciplinary action when an employee testifies in a trial); Wis. Stat. §

230.90 (2003-04) (formerly § 895.65) (prohibiting retaliation by a

government employer). An employee may nevertheless harbor a fear of

adverse employment consequences if he or she decides a case against the

employer's position.

’ This court reached a similar conclusion regarding independent

arbitrators in Borst v. Allstate Ins. Co., 2006 W170,94,. Wis.2d__,

___ N.W.2d __, in which we concluded that an arbitrator who has an

ongoing employment relationship (as counsel) with one of the parties to

an arbitration was “evidently partial” under Wis. Stat. § 788.10(1)(b).

32a

No. 2004AP2035-CR

951 The risk of an employee sensing economic

pressure to side with his or her employer is too great to rely

on the prospective juror’s representations of his or her ability

to be unbiased. In addition, an employee may feel loyalty

toward his or her employer and the positions the employer

takes. An employee may reasonably wish to be a “team

player” or may perceive peer pressure from coworkers to side

with their employer. In contrast, an employee might be

biased against an employer.

q52 While a prospective juror may be able to-disclaim

bias, it will too often be impossible for employees to

completely eliminate the influence of an employer who, in

essence, keeps a roof over their head and food on their table.

These concerns are precisely why a case-by-case analysis of

subjective and objective bias in this type of case is not

satisfactory, and a bright-line rule is required.*

453 I conclude that an objectively reasonable person

in the place of the challenged prospective juror would not

ordinarily be able to separate his or her economic and loyalty

interests from the determinations he or she would be required

to make as juror.. An employee of a district attorney’s office

* “It need not be assumed that any cessation of that employment

would actually follow a verdict against the government. It is enough that

it might possibly be the case; and the juror ought not to be permitted to

occupy a position of that nature to the possible injury of a defendant on

trial, even though he should swear he would not be influenced by his

relations to one of the parties to the suit in giving a verdict.” Crawford v.

United States, 212 U.S. 183, 197 (1909).

33a

No. 2004AP2035-CR

should therefore be struck as a juror for cause when that

office is prosecuting a case.

454 As Justice O’Connor recognized in her concurring

opinion in Smith v. Phillips, 455 U.S. 209, 222-24 (1982),

some situations (which she labeled as “extreme”), including

employment with the prosecuting agency, would justify a

bright-line rule excluding the prospective juror:

While each case must turn on its own facts,

there are some extreme situations that would

justify a finding of implied bias . . . [including]

a revelation that the juror is an actual

employee of the prosecuting agency....

None of our previous cases preclude the use of

the conclusive presumption of implied bias in

appropriate circumstances. :

455 My conclusion is consistent with the statutes and

case law of other jurisdictions.

56 Many states have statutes requiring employees of

counsel to be struck for cause when they are prospective

jurors in a case in which their employer is involved.’

? See, e.g., Alaska R. Crim. Proc. 24(c)(10) (2006) (a juror is subject

to challenge for cause if he or she is the “employee . . . of one of the

attorneys”); MCR 2.511(D)(9) (2006) (Michigan, same); S.D. Codified

Laws § 23A-20-13.1(4) (2006) (South Dakota, same).

Other. state statutes create grounds for striking a potential juror

for cause when the juror is an employee of a party. See, e.g., Ark. Code

34a

No. 2004AP2035-CR

457 Similarly, in many jurisdictions, case law

establishes a strong policy against allowing employees of law

firms or prosecuting agencies to serve on a jury in which their

employer is involved.

458 In United States v. Polichemi, 219 F.3d 698 (7th

Cir. 2000), for example, the United States Court of Appeals

for the Seventh Circuit held that a 15-year employee of the

United States Attorney’s Office for the Northern District of

Illinois, which was conducting the prosecution, was impliedly

biased and should have been excluded for cause.'° The

Seventh Circuit distinguished United States v. Wood, 299

U.S. 123 (1936), and Dennis v. United States, 339 U.S. 162

(1950). In both Wood and Dennis, the jurors were not

employees of the office prosecuting the- case, but rather

employees of other offices of the United States government. '!

Ann. § 16-33-304(b)(2)(B)(i) (2006) (providing grounds to strike for

cause if the juror is employed by defendant or complainant); Idaho Code §

19-2020(2) (2006) (same); lowa R. Crim. P. 2.18(5)e. (2005) (same); Kan.

Stat. Ann. § 22-3410(2)(b) (2005) (same); Minn. R. Crim. P. 26.02(5)(1)6.

(2006) (same); Ohio Crim. R. 24(C)(12) (2006) (same); Or. Rev. Stat. §

136.220(3) (2006) (same).

"United States v. Polichemi, 219 F.3d 698, 704 (7th Cir. 2000).

"Id.

The Seventh Circuit also distinguished Smith v. Phillips, 455

U.S. 209 (1982), because the challenged juror in that case was an

applicant for a job with the office of the prosecuting attorney, not an

employee. Polichemi, 219 F.3d at 704-05.

35a

No. 2004AP2035-CR

459 It is useful to compare Polichemi to the instant

case. The U.S. Attorney’s office for the Northern District of

Illinois currently has over 300 employees, including 161

Assistant U.S. Attorneys, in two offices serving 18 counties.’

It is unclear how many staff are employed by the Milwaukee

County District Attorney, the prosecuting agency and

employer of the challenged juror in the instant case, but there

are approximately 125 assistant district attorneys.'® There is

nothing in the Polichemi opinion indicating that the juror in

that case was any closer to the prosecuting Assistant U.S.

This court has rejected a bright-line rule of exclusion based on

government employment. State v. Louis, 156 Wis. 2d 470, 482, 457

N.W.2d 484 (1990) (quoting United States v. Wood, 299 U.S. 123, 149

(1936)) (“‘We think that the imputation of bias simply by virtue of

governmental employment, without regard to any actual partiality growing

out of the nature and circumstances of particular cases, rests on an

assumption without any rational foundation.””).

In McGeever v. State, 239 Wis. 87, 96-97, 300 N.W. 485 (1941),

the court held that there is no bright-line rule excluding former part-time

employees of a district attormey’s office from serving on a jury in a case

prosecuted by the same district attorney’s office. Because McGeever

addressed past employment, * is, istapyplicable to the instant case.

'? Website of the United States Attorney for the Northern District of

Illinois, “About Us” page,

http://www.usdo}j.gov/usao/i'n/aboutus/index.html (last visited June 21,

2006).

'* Website of the Milwaukee County District Attorney,

http://www.county.milwaukee.gov/display/router.asp?DocID=7715 (last

visited June 21, 2006).

36a

No. 2004AP2035-CR

Attorney than the challenged juror in the instant case was to

the prosecuting assistant district attorney.

460 Polichemi reflects and is consistent with the

policies of over one hundred years of case law from various

jurisdictions."

461 Some state courts, like the majority opinion, have

rejected a rule excluding prospective jurors based only on

their employment relationship with counsel.'° I disagree with

the reasoning in these cases.

* See, e.g., People v. Terry, 35 Cal. Rptr. 2d 729, 731 (Cal. Ct. App.

1994) (deputy district attorney should have been struck for cause “because

this very case is being prosecuted by his boss”); Beam v. State, 400 S.E.2d

327, 328 (Ga. 1991) (secretary in appellate section of district attorney’s

office prosecuting trial should have been struck for cause based on

perception of bias); State v. Kauhi, 948 P.2d 1036, 1041 (Haw. 1997)

(court shall imply bias when prospective juror is deputy prosecuting

attorney employed in same office as the prosecutor trying the case); Block

v. State, 100 Ind. 357, 363 (Ind. 1885) (deputy prosecuting attorney

impliedly biased because he was employee and subordinate of prosecuting

attorney); Randolph v. Commonwealth, 716 S.W.2d 253, 255 (Ky. 1986)

(secretary for prosecuting attorney impliedly biased as a matter of law and

therefore must be struck for cause), overruled on other grounds by

Shannon v. Commonwealth, 767 S.W.2d 548 (Ky. 1988).

'S See, e.g., Lowe v. State, 384 So. 2d 1164, 1171 (Ala. Crim. App.

1980) (employment by the district attorney did not impute bias as a matter

of law); State v. Cox, 837 S.W.2d 532, 535 (Mo. Ct. App. 1992) (child

support enforcement investigator not automatically excluded as juror even

though prosecutor was her superior); Roubideaux v. State, 707 P.2d 35, 36

(Okla. Crim. App. 1985) (administrative assistant in district attorney’s

office not automatically excluded as juror).

37a

No. 2004AP2035-CR

{62 Because the challenged prospective juror has

financial and loyalty ties to his or her employer, the juror

cannot be expected to make an unbiased decision. A bright-

line rule excluding an employee of a district attorney’s office

as a juror guarantees the criminal defendant his or her

constitutional right to a fair and impartial jury and also

protects prospective jurors from the unenviable position of

deciding cases prosecuted by their employers.

63 The bright-line rule I propose is narrow. I do not

propose a rule excluding all government employees from

serving on a jury in every case involving the government.

64 Further, the rule I propose is not a categorical

exclusion of all employees of a district attorney’s office from

serving on a jury. Employees of a district attorney’s office

may serve on civil juries if the district attorney’s office is not

involved as counsel in the case. Moreover, nothing in the rule

I propose would prohibit an employee of a district attorney’s

office from serving on a jury in a criminal case prosecuted by

a district attorney for another county.'®

465 Although this court has been reluctant to do so,

we have created bright-line rules to exclude prospective jurors

when such rules were necessary. In State v. Gesch, 167 Wis.

2d 660, 482 N.W.2d 99 (1992), the court held that prospective

Waukesha, my proposed ruie would not have prohibited her from serving

on a criminal jury in a case prosecuted by the Waukesha County District

Attorney.

38a

No. 2004AP2035-CR

jurors related to a state witness by blood or marriage up to the

third degree of consanguinity are “impliedly” biased and must

be struck for cause.'’ Discussing Gesch in a later case, the

court observed that “Gesch is unique. In most

circumstances...the conclusion that an individual is

objectively biased requires some view of the facts and

circumstances surrounding the voir dire and the case, as well

as the prospective juror’s answers.... However, Gesch

remains an example that some relationships are so fraught

with the possibility of bias that we must find objective bias

regardless of the surrounding facts and circumstances and the

particular juror’s assurances of impartiality.”"®

{66 This rationale applies just as forcefully, if not

more so, to employees of the prosecutor’s office as it does to

family members.

{67 For the reasons stated, I conclude that, because

the challenged prospective juror was an employee of the

Milwaukee County District Attorney’s office that was

prosecuting the case, she was objectively biased and should

have been struck for cause.

68 The error was prejudicial. I would reverse the

defendant’s conviction and remand the matter to the circuit

'” State v. Gesch, 167 Wis. 2d 660, 662, 482 N.W.2d 99 (1992). The

court now says that such prospective jurors are “objectively biased.”

'S Faucher, 227 Wis. 2d at 724 (discussing State v. Gesch, 167 Wis.

2d 660, 482 N.W.2d 99 (1992)).

No. 2004AP2035-CR

court for a new trial.

469 I am authorized to state that Justices DAVID T.

PROSSER and LOUIS B. BUTLER, JR. join this opinion.

40a

No. 04-2035-CR

APPENDIX B

COURT OF APPEALS

DECISION NOTICE

DATE AND FILED

January 11, 2005

Cornelia G. Clark

Clerk of Court of Appeals

Appeal No. 04-2035-CR

STATE OF WISCONSIN

This opinion is_ subject to

further editing. If published,

the official version will appear

in the bound volume of the

Official Reports.

A party may file with the

Supreme Court a petition to

review an adverse decision by

the Court of Appeals. See Wis.

STAt. § 808.10 and RULE

809.62.

Cir. Ct. No. 01CT008142

IN COURT OF APPEALS

DISTRICT |

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

Vv.

DALE L. SMITH,

DEFENDANT-APPELLANT.

4la

No. 04-2035-CR

APPEAL from a judgment and an order of the

circuit court for Milwaukee County: RUSSELL W.

STAMPLER, Reserve Judge. Affirmed.

42a

No. 04-2035-CR

41 WEDEMEYER, P.J.' Dale L. Smith appeals from

a judgment entered -after a jury found him guilty of operating

a motor vehicle while intoxicated, second offense. He also

appeals from an order denying his postconviction motion.

Smith contends that the trial court erred in refusing to strike

for cause a juror, Charlotte T., who works as an

administrative assistant at the Children’s Court Center. Smith

argues that Charlotte was objectively biased because she is

employed by the same entity as the prosecuting attorney.

Because the trial court did not err in determining that

Charlotte was not objectively biased, this court affirms.

BACKGROUND

42 During the voir dire of Smith’s case, it was discovered

that Charlotte worked at the Children’s Court Center in

Wauwatosa. The following exchanges occurred:

[PROSECUTOR]: Okay. Juror

No. 9., who do you know in the

D.A.’s office?

[JUROR NO. 9]: | work in the

D.A.’s office?

[PROSECUTOR]: You do?

You know plenty of people who

work in the D.A.’s office?

' This appeal is decided by one judge pursuant to WIS. STAT. §

752.31(2) (2001-02).

43a

No. 04-2035-CR

[JUROR NO. 9}: Yes, I do.

[PROSECUTOR]: Because our

office is prosecuting this case,

do you think you’d have a

problem being an_ impartial

juror on this case?

[JUROR NO. 9]: No.

Defense counsel then examined Charlotte:

[COUNSEL]: Okay, and Miss

T[.] you work for the D.A.’s

office?

[JUROR NO. 9]: Yes.

“ [COUNSEL]: You are around

the courthouse a lot?

[JUROR NO. 9]: I work at the

Children’s Court Center.

[COUNSEL]: What is your

capacity out there?

[JUROR NO. 9}:

Administrative assistant.

44a

No. 04-2035-CR

[COUNSEL]: Do you work on

investigations?

[JUROR NO. 9]: No.

[COUNSEL]: Even though you

work in the district attorney’s

office and the district attorney’s

office is prosecuting this action,

do you feel you can be totally

impartial, or impartial and fair

about this case?

[JUROR NO. 9]: Yes.

43 The trial court determined that Charlotte was not

biased and would not be struck for cause. Smith used his four

peremptory challenges to remove four other prospective

jurors that concerned him. As a result, Charlotte was left on

the jury and heard the drunk driving case against Smith. The

jury ultimately returned a unanimous guilty verdict. Smith

was sentenced to ninety days in the House of Correction. He

filed a postconviction motion seeking a new trial on the

grounds that he was denied his right to an impartial jury. The

trial court denied the motion. Smith now appeals.

DISCUSSION

4 There are three categories of juror bias: statutory

bias, swhyective bias and objective bias. State v. Fauchner,

227 Wis. 2d 700, 596 N.W.2d 770 (1999). Here, it is

45a

No. 04-2035-CR

undisputed that there is no statutory exclusion for Charlotte

based on her employment at the Children’s Court Center.

Likewise, her answers indicated that she would not have

subjective bias against Smith. Both sides agree that this case

is solely about objective bias and whether Charlotte should

have been removed from the panel simply because she was

employed by the same entity as the prosecuting attorney.

45 Relying on State v. Louis, 156 Wis. 2d 470, 457

N.W.2d 484 (1990), the trial court determined that objective

bias did not apply here. In Louis, our supreme court held that

two members of the Milwaukee Police Department were not

objectively biased merely because they were employed as law

enforcement officers and worked in the same department with

the state’s witness. /d. at 474. “A prospective juror’s

knowledge of or acquaintance with a participant in the trial,

without more, is insufficient grounds for disqualification.” Jd.

The supreme court reaffirmed this determination in Faulkner,

227 Wis. 2d at 722. -

46 The facts of record here suggest that this case is

akin to Louis. Charlotte, although employed by the

Milwaukee County District Attorney’s Office, did not know

the prosecutor in this case and the prosecutor did not know

Charlotte. Charlotte herself is not a prosecutor, but an

administrative assistant. Her work does not involve

investigations. She does not work at the District Attorney’s

Office located at the courthouse complex in downtown

Milwaukee. Rather, she works in a separate facility—the

Children’s Court Center located in Wauwatosa. There is no

evidence that Charlotte had any contact with the prosecutor in

46a

No. 04-2035-CR

this case or had any familiarity with the prosecution of this

case. Under these circumstances, this court agrees with the

trial court’s conclusion that “the mere fact that a juror works

for the prosecuting office, without more, does not in and of

itself disqualify the juror from service.”

47 Accordingly, Charlotte was not objectively biased.

She was a fair and impartial juror and, therefore, the trial

court did not err in denying Smith’s postconviction motion

alleging otherwise.

By the Court—Judgment and order affirmed.

This opinion will not be published. See Wis.

STAT. RULE 809.23(1)(b)4.

This appeal is decided by one judge pursuant to WIS.

STAT. § 752.31(2) (2001-02).

47a

APPENDIX C

STATE OF CIRCUIT COURT MILWAUKEE

WISCONSIN : Branch 13 COUNTY

STATE OF —

' WISCONSIN o

Plaintiff,

VS.

Case No. 01CT008142

DALE SMITH,

Defendant.

DECISION AND ORDER

DENYING MOTION FOR NEW TRIAL

On July 2, 2004, the defendant by his attorney filed a

motion for a new trial on grounds that he was denied his right

to an impartial jury. On October 1, 2003, a jury convicted the

defendant of operating while intoxicated (2™). He was

sentenced to ninety days in the House of Correction. During

voir dire, Juror No. 9, Charlotte T., hereafter “Juror T.”,

stated that she works for the District Attorney’s Office in the

Children’s Court Center as an administrative assistant.

Defense counsel moved to strike Juror No. 9 for cause

because she works for the prosecuting agency. (Tr. 9/30/03,

pp. 36-37). The court denied the motion. Defense counsel

used his four peremptory challenges to remove other jurors,

and therefore, Juror No. 9 was one of the twelve jurors who

renderéd the guiity verdict against the defendant.

48a

The defendant contends that he was denied his right to an

impartial jury when the court denied his motion to strike Juror

T. for cause. In State v. Fauchner, 227 Wis. 2d 700 (1999),

the Supreme Court identified three categories of juror bias:

(1) statutory bias, (2) subjective bias, and (3) objective bias.

Statutory bias applies to those persons who are “related by

‘blood or marriage to any party or to any attorney appearing

in [the] case’ and those who ‘[have] any financial interest in

the case.’” Jd. at 717; § 805.08(1), Stats. A person fitting one

of these descriptions is deemed to be biased “regardless of his

or her ability to be impartial.” Jd. Subjective bias is revealed

by the words and the demeanor of the prospective juror and

therefore turns on an individual’s responses during voir dire

and the court’s assessment of-the individual’s honesty and

credibility. Jd. at 717-18. Finally, “the focus of the inquiry

into ‘objective bias’ is not upon the individual prospective

juror’s state of mind, but rather upon whether the reasonable

juror in the individual prospective juror’s position could be

impartial.” Jd. Objective bias does not exist in a vacuum. In

assessing whether a prospective juror is objectively biased, “a

circuit court must consider the facts and circumstances

surrounding the voir dire and the facts involved in the case.”

Id. at 718.

In essence, the defendant contends that Juror T. was

objectively biased because no person in her position could be

impartial. There is no allegation that Juror T. falls within the

scope of statutory bias under section 805.08(a), Stats., or that

her comments or demeanor during voir dire revealed any

subjective bias against the defendant. During voir dire, the

prosecutor questioned Juror T. about her job in the District

Attorney’s Office:

49a

MS. HARRIS: Okay. Juror No. 9., who do

you know in the D.A.’s office?

JUROR NO. 9: I work in the D.A.’s office?

MS. HARRIS: You do? You know plenty of

people who work in the D.A.’s office?

JUROR NO. 9: Yes, I do.

MS. HARRIS: Because our office is

prosecuting this case, do you think you’d have

a problem being an impartial juror on this

case?

JUROR NO. 9: No.

(Tr. 9/30/03 at pp. 22-23). Defense counsel questioned Juror

T. further about her employment in the District Attorney’s

Office.

MR. WAIT: Okay and Miss T[.] you work for

the D.A.’s office?

JUROR NO. 9: Yes.

MR. WAIT: You are around the courthouse a

lot?

JUROR NO. 9: | work at the Children’s Court

‘ Center.

MR. WAIT: What is your capacity out there?

JUROR NO. 9: Administrative Assistant.

MR. WAIT: Do you work on investigations?

JUROR NO. 9: No.

50a

MR. WAIT: Even though you work in the

district attorney’s office and the district

attorney’s office is prosecuting this action, do

you feel you can be totally impartial, or

impartial and fair about this case?

JUROR NO. 9: Yes.

(Id. at pp. 34-35).

“The focus of the inquiry into ‘objective bias’ is not upon

the individual prospective juror’s state of mind, but rather

upon whether the reasonable person in the individual

prospective juror’s position could be impartial.” Fauchner at

718. In State v. Louis, 156 Wis. 2d 470 (1990), the Supreme

Court held that two members of the Milwaukee Police

Department were not objectively biased merely because they

were employed as law enforcement officers and worked in the

same department with the State’s witness. The court also

wrote, “A prospective juror’s knowledge of or acquaintance

with a participant in the trial, without more, is insufficient

grounds for disqualification.” Jd. at 484. In Fauchner, the

Court reiterated its ruling in Louis, and further held that “[a]

reasonable person in the position of a law enforcement officer

could remain impartial despite working in the same

department as a state witness.” 227 Wis. 2d at 722.

Because there is no statutory exclusion in Wisconsin for

employees of a prosecuting office to serve as jurors, the court

finds Louis to be instructive. Thus, the mere fact that a juror

works for the prosecuting office, without more, does not in

and of itself disqualify the juror from service. Whether a

reasonable person in the position of an employee for the

prosecuting office can remain impartial, however, will depend

Sla

on the particular facts and circumstances of the case.

Fauchner at 720. In this instance, Juror T. stated that she

works as an administrative assistant. She stated that her work

does not involve investigations. Although she works for the

same prosecuting agency as the prosecutor, she stated that she

works at the Children’s Court Center, which is a separate

facility located in Wauwatosa, and not in the District

Attorney’s Office located in the Courthouse Complex in

downtown Milwaukee. There is no evidence that Juror T.

ever had any contact with the prosecutor in her capacity as an

employee for the District Attorney’s Office or that she had

any familiarity with the prosecution of this case. Moreover,

Juror T. unequivocally stated that she could be fair. Taking

all these factors into consideration, the court cannot infer that

a reasonable person in Juror T.’s position would be biased.

Consequently, the court finds no error in denying the motion

to strike Juror T. for cause.

THEREFORE, IT IS HEREBY ORDERED that the

defendant’s motion for new trial is DENIED’

Dated this day of July 2004 at Milwaukee,

Wisconsin.

BY THE COURT:

Russell W. Stamper, Sr. (reserve)

Circuit Court Judge

52a

APPENDIX D

STATE OF WISCONSIN: CIRCUIT COURT: MILWAUKEE COUNTY

BRANCH 26

STATE OF WISCONSIN,

Plaintiff,

-VS- Case No. 01-CT-8142

DALE L. SMITH, ~

Defendant.

September 30, 2003 BEFORE THE HONORABLE

RUSSELL STAMPER, RESERVE

CIRCUIT COURT JUDGE,PRESIDING.

CHARGE: Operating While Intoxicated, 2nd

APPEARANCES:

TIFFANY HARRIS, ASSISTANT DISTRICT

ATTORNEY, APPEARED ON BEHALF OF THE

STATE.

PATRICK D. WAIT, Attorney at Law, .

appeared on behalf of Defendant.

DEFENDANT present in court.

* * * * *

MS. HARRIS: Thank you. Does anyone on the panel

know anyone who works for the Milwaukee County District

Attorney’s Office? Juror No. 4., Miss Market.

JUROR NO. 4: I know David Moss.

53a

MS. HARRIS: I work in the same office as Mr. Moss.

Would that affect your ability to remain impartial on this

case?

JUROR NO. 4.: No.

MS. HARRIS: Who else? Juror No. 17, who do you

know in the D.A.’s office?

JUROR NO. 17.: E. Michael McCann.

MS. HARRIS: I work for Mr. McCann. Knowing that

the State is prosecuting this case, do you think you would be

able to sit as an impartial juror and hear this case?

JUROR NO. 17.: Yes.

MS. HARRIS: Okay. Juror No. 9., who do you know in

the D.A.’s office?

JUROR NO. 9.: I work in the D.A.’s office?

MS. HARRIS: You do? You know plenty of people who

work in the D.A.’s office?

JUROR NO. 9.: Yes, I do.

MS. HARRIS: Because our office is prosecuting this

case, do you think you’d have a problem being an impartial

juror on this case?

JUROR NO. 9.: No.

54a

MS. HARRIS: Okay. Now, has anyone on the panel ever

been a witness or a victim or a defendant in a drunk driving-

type of case?

JUROR NO. 6.: One time, many years ago, | was going

down the road with my wife and kids, and this drunk just

started screeching his wheels, stopping, running back and

forth. We called the accu I wasn’t around by the time the

police got there.

MS. HARRIS: Would having that experience as a victim

in that type of case, or a witness, would there be a problem

for you to sit on this jury, knowing that this defendant is

charged with drunk driving?

JUROR NO. 6: I guess I’d have to hear more

information. At the time, if I had had a gun, I’d have shot

him.

MS. HARRIS: You obviously have strong feelings. You

are indicating you have to hear the evidence and the

testimony in this case and make a judgment based on that?

JUROR NO. 6.: Yes.

MS. HARRIS: Do you think you'd be able to do that and

remain impartial, listen to the testimony and base your

decision on that?

JUROR NO. 6.: I think so.

MS. HARRIS: Now, did anybody else have a hand up?

Juror No. 3.

55a

JUROR NO. 3.: I don’t know, because I’m a police

officer, if you consider me being a witness. I have arrested

people for O.W.I.

MS. HARRIS: Okay, because that’s part of your job, you

arrest people for drunk driving, do you think you’d be able to

sit as an impartial juror on this case?

JUROR NO. 3.: Yes.

MS. HARRIS: Juror No. 12.

JUROR NO. 12.: I got pulled over because they

suspected me of drunk driving. I was just tired. They had me

get out and walk the line. They made me blow. I blew a

complete zero. I felt harassed by the whole thing. I think

they wanted to harass me. It was for a good hour the process

I had to go through to prove I wasn’t drunk.

MS. HARRIS: You weren’t charge with operating while

intoxicated?

JUROR NO. 12.: No.

MS. HARRIS: Would having that experience, do you

think you would have a problem sitting as an impartial juror

in this case?

JUROR NO. 12.: Probably, but I could hear it.

MS. HARRIS: You could be impartial?

JUROR NO. 12.: Yes. I’m sorry, final answer.

( 56a

MS. HARRIS: Final answer is that you could be

- impartial?

JUROR NO. 12.: Yes.

MS. HARRIS: Thank you. Juror No. 14.

JUROR NO 14.: I was a defendant 20-plus years ago.

MS. HARRIS: Do you feel that you were treated fairly by

the legal system and the police and the whole process?

JUROR NO. 14.: Yes, they got me fair and square.

MS. HARRIS: Being a defendant in a case which is the

same charge as this defendant’s here, do you think you would

be able to sit as an impartial juror in this case?

JUROR NO. 14.: Yes.

MS. HARRIS: Thank you. Is there anyone here on the

panel, beside Juror No. 12., who just told us about the

unpleasant experience with law enforcement, has anyone else

here had a bad experience with a law enforcement agency

where you think you were treated unfairly? Does anyone

have a problem with law enforcement to the extent that

they—it would be a problem for them to sit on this jury? No.

Okay, has anyone on this panel seen a drunk person before?

Yes. I guess I would ask Juror No. 1., how did you know that

they were drunk?

JUROR NO. 1.: Just by their mannerisms. I was

currently a cashier at a gas station, and you can tell by the

way that they act.

57a

MS. HARRIS: Do you think by physical appearance?

JUROR NO. 1.: Speech, and sometimes I smell their

breath. The station was less than a block away from a bar, so,

obviously, we had our share of drunks.

MS. HARRIS: Juror No. 15., how could you tell wken—

somebody is drunk?

JUROR NO. 15.: Slurred speech, just the way they act.

MS. HARRIS: Okay, so can we agree the fact is when

someone is drunk, you can pretty much easily recognize it?

JUROR NO. 15.: Yes.

MS. HARRIS: Can we also agree another way to tell if

somebody is drunk, obviously, is if you have a blood/alcohol,

breath, or urine test?

JUROR NO. 15.: Yes.

MS. HARRIS: Now, do you think that you would be able

to tell if someone is drunk, even without having an actual

chemical test based on the physical indicators we’ve talked

about? There will be testimony here that we don’t have an

actual B.A.C. in this case. Knowing that, do you think you’d

have a problem if all the other evidence came back--Would

you be able to judge whether this defendant, in your opinion,

was operating while intoxicated, without having a

blood/alcohol content or a breath test? Would anyone have a

problem.doing that?

58a

JUROR NO. 12.: Yes, I would.

MS. HARRIS: You would have a problem without an

actual breath or blood test?

JUROR NO. 12.: Definitely. I want to now what he blew

in order to judge him correctly.

MS. HARRIS: If you had other testimony, other physical

indicators of him being drunk, would you be able, based on

that alone, to find he was driving drunk?

JUROR NO. 12.: No.

MS. HARRIS: Anyone else on the panel feel that way?

JUROR NO. 17.: I’d need to hear all the evidence.

MS. HARRIS: Fine, that’s what I need to hear.

THE COURT: Let me inform you folks, if you are

stopped for suspected “operating under the influence,” there’s

a request you submit to a breath, blood, or urine test; but you

can refuse. You can say, “no.” If you say, “no,” that doesn’t

mean you are not under the influence; that simply means you

said, “no.” There may be evidence that you are, there may be

other evidence that you are under the influence. But since

you satd, “no,” you don’t have a blood, breath, or urine test,

but that person is still prosecutable. That person can still be

prosecuted. He does not avoid prosecution simply because

this person refused to take the test. Having said that, let’s get

back to the inquiry of Juror No. 12. Does that change your

answer?

59a

JUROR NO. 12: She asked would I have a problem.

THE COURT: We are saying that tests are absent,

blood/alcohol test is absent. |

JUROR NO. 12.: Did he refuse it?

THE COURT: That’s a different question. I want you to

understand, despite the absence of such a test, one can still be

operating under the influence, one can still be charged and

may be guilty or not guilty, but it is irrespective of the —

absence of that test.

JUROR NO. 12.: Okay.

THE COURT: You may continue.

MS. HARRIS: Thank you, Judge. Is there anyone here

on this panel that thinks the State or the County of Milwaukee

doesn’t have a right to monitor and arrest people that they

think might be operating while intoxicated? Everyone can

agree we should be able to do that? Okay. Does everyone on

the panel understand what the judge mentioned earlier, that

State has the burden of proving every element of the crime

charged. I must prove to you beyond a reasonable doubt.

Does everyone understand that? Does everyone understand

reasonable doubt is a doubt based on a_ reasonable

consideration of the evidence presented during this trial? And

that there’s a difference between reasonable doubt and a

doubt based on speculation of what might be? Does everyone

understand you should not base your verdict on speculation or

sympathy, but only on the evidence you hear during the trial?

60a

THE COURT: Let’s get on with it, please. I’ll instruct

them in the due course of time.

MS. HARRIS: Actually, I have only one other question.

Does anyone on the panel have moral convictions in that they

feel they could not sit in judgment of another person?

Thank you, that’s all I have.

THE COURT: Mr. Wait.

MR. WAIT: I'll try to make it brief. I have had the

benefit of the judge and assistant district attorney having

asked quite a few questions, so I have a pretty good idea of

who you are. I want to thank you for sitting here today. I

will make it brief so we can get to lunch.

There are police officers that are going to be testifying

today, and some of you are police officers; some of you are

becoming police officers, some of you want to become police

officers, or have family members who are police officers.

Sometime we see officers in a blue suit take the stand and

testify, and it seems very credible. Does anyone here feel that

a police officer, just because they are testifying, that their

testimony is automatically more reliable than anyone else that

would testify, even slightly more; does anyone feel that way?

(No response.)

MR. WAIT: Does anyone have a philosophical or

religious belief that would make it very difficult for them to

judge Mr. Smith here today? Does anyone here have any

feelings about drunk driving, which gets a lot of publicity in

the press--Does anyone have such feelings that this is an

ma Ole

offense different from others, that you could sit on almost any

trial, but there is something about drunk driving that just

pushes me a little--a personal experience or a moral

conviction? Yes, Juror No. 2. eee

JUROR NO. 2.:_ I have a friend who almost killed

somebody while under the influence, and I’ve had several

friends arrested for driving under the influence. I don’t

associate with them anymore. I’ve got children; I don’t like

that.

MR. WAIT: Does that make it more difficult for you to

judge a case fairly?

JUROR NO. 2.: No, I don’t think so.

MR. WAIT: Do you think it’s going to be difficult for

you to be impartial here? i

JUROR NO. 2.: Yes.

MR. WAIT: Again, we appreciate everyone’s honesty

here. This is what this-ts-all about. Is there anyone else that

has feelings of this nature?

JUROR NO..-6.: My brother was put in a coma for two

weeks because of a drunk driver.

MR. WAIT: Is that going to affect your ability to be

impartial here?

JUROR NO. 6.: [hope not, but I’m not sure.

62a

MR. WAIT: You also said that when you saw someone

suspected of drunk driving, if you had a gun you would have

shot him.

JUROR NO. 6.: I got that angry with him because I was

with my wife and kids. The average person doesn’t slam on

the brakes, turn around and do a 360 and come back at you.

MR. WAIT: Do you feel you can be fair here today?

JUROR NO. 6.: I can try.

MR. WAIT: You can try, that’s what we are asking of

everyone, to exercise your best ability to be impartial, to

listen to all of the evidence.

Does anyone here absolutely not drink and cannot tolerate

people who drink? No one. Does anyone feel drinking is

immoral or violates any religious philosophical tenet?

Nobody. Is there anyone here who belongs to any groups like

MADD or Business Against Drunk Drivers? Has anyone

here campaigned for tougher drunk driving laws? Nobody.

Does everyone here understand that it is illegal to operate a

vehicle while under the influence of alcohol? Does everyone

understand it is not illegal to drink and drive? Does everyone

understand the distinction?

All right. Has anyone at this point, based on what you’ve

heard so far, developed any opinions about my client yet?

Are we all still at the point where we are supposed to start at,

that he is presumed innocent as he sits here right now? Does

anyone have a hard time with that? Does anyone think if he

is innocent, why is he charged?

- 63a

JUROR NO. 11.: I kind of feel you would not be here

unless you were doing something wrong.

Mr. WAIT: So in that regard, you’ve already formed an

opinion?

JUROR NO. 11. Perhaps.

MR. WAIT: You are Mr. Forkes?

JUROR NO. 11.: Yes. I do feel I can be impartial.

MR. WAIT: Okay, I guess that’s what I was going to ask

you. You’ve heard that the burden of proof is upon the State.

Some people may feel that that is unfair, that it’s my burden

to prove all this by evidence beyond a reasonable doubt.

Does anyone think that is too high a burden, too unfair a

burden for the State. Would everyone agree, if they felt that it

looked somewhat possible that this gentleman committed a

crime, but you are still convinced that the State has not

proven every element, even one element by evidence beyond

a reasonable doubt, that you must acquit him, you must find

him not guilty? Does anyone have a problem with that?

(No response.)

MR. WAIT: Okay, and Miss Thomas you work for the

D.A.’s office?

JUROR NO. 9.: Yes.

MR. WAIT: You are around the courthouse a lot?

JUROR NO. 9.: I work at the Children’s Court Center.

64a

MR. WAIT: What is your capacity out there?

J UROR NO. 9.: Administrative assistant.

MR. WAIT: Do you work on investigations?

JUROR NO. 9.: No.

MR.WAIT: Even though you work in the district

attorney’s office and the district attorney’s office is

prosecuting this action, do you feel-you can be totally

impartial, or impartial and fair about this case?

JUROR NO. 9.: Yes.

THE COURT: That is Miss Thomas, Number 9.?

MR. WAIT: Yes. Thank you very much, that’s all I

have.

THE COURT: All right.

MR. WAIT: Your Honor, I have a motion.

(In chambers.)

THE COURT: We are again in chambers. Buoi® counsel

are present along with the clerk. Mr. Wait.

MR. WAIT: Okay, with respect to No. 6., Francis

Irizarry, he said, “If I had a gun I would have shot the guy. |

suspected the guy of drunk driving, who else would drive like

that.” It looks like he’s pretty aggressive. He says he thinks

he can be impartial, but a lot of his other words Say otherwise.

65a

THE COURT: Yes, you didn’t ask him the bottom line

question. He said he would try to be impartial. That’s as far

as we got. He would have to say he could not before I excuse

him.

MR. WAIT: I think Number 2. said he couldn’t be

impartial. I asked him again and he said he could be

impartial.

THE COURT: Quote, would it be difficult to be

impartial? He said, yes, difficult, but not impossible. Again,

this is a difficult process. Difficult is not sufficient to excuse

a juror.

MR. WAIT: All right. I’d ask Number 9. be stuck for

cause, she works for the D.A.’s office.

THE COURT: What’s the cause?

MR. WAIT: She works for the law firm prosecuting this

case. Her employer is Michael McCann.

THE COURT: Is there authority for that?

MR. WAIT: I think that is for cause.

THE COURT: Is it occupational exclusion? By-virtue of

fact she works for the D.A.’s office is it impossible for her to

be impartial?

MR. WAIT: I don’t think I have to prove impartiality; I

think there can be a finding her employer is prosecuting this

case.

66a

THE COURT: I understand your opinion, do you have

authority for that belief? 3

MR. WAIT: No, I don’t have any cases I can cite.

THE COURT: State.

MS. HARRIS: Judge, I really don’t think—I don’t know

her. She doesn’t work in this particular building; she’s out at

Children’s Court. I don’t think there is any authority for that.

THE COURT: Request denied. That was Number 9.

MR. WAIT: That takes care of it for me.

THE COURT: State have any requests?

MS. HARRIS: Since we are in chambers here, there was

an issue raised about the meaning of Juror No. 6.’s statement.

THE COURT: That he would “try” to be impartial, I’m

willing to pursue that. Are you pressing forward with a

request of execution for cause?

MR. WAIT: Yes.

THE COURT: Call Juror No. 6. into chambers, please.

(Juror No. 6. enters chambers.) —

THE COURT: Have a seat, sir. You expressed some

feelings about some of your experiences in life involving

persons who apparently were under the influence of alcohol

~_—

67a

or drugs. In response to one question, you indicated you

would try to be impartial. We need to try to pin you down, if

you would please allow us. The real question is, can you be

impartial, fair, and neutral in this case?

JUROR NO. 6.: I understand. I don’t know, I haven’t

heard the evidence yet. I would say absolutely not if I found

out the person had denied the police the right to check his

blood or check that if he was. To me that tells me he was

drunk. I don’t care, he should go to - That would totally

blow me off right there.

THE COURT: You don’t know the answer to that

question, right?

JUROR NO. 6.: No.

THE COURT: Given that you don’t know the answer as

to what the evidence is going to say, I need you to tell us at

this time, right now, are you at zero neutral, or are you

leaning one way or the other?

JUROR NO. 6.: I’m trying to stay at neutral.

THE COURT: Where are you?

JUROR NO. 6. I believe I am neutral.

THE COURT: You have the best opinion of where you

are, and you believe you are neutral. That’s your belief,

right?

JUROR NO. 6.: Yes.

68a

THE COURT: All right, are there any questions?

MS. HARRIS: No.

MR. WAIT: No.

THE COURT: Okay, please return to your seat, sir.

(Juror No. 6. leaves chambers.)

THE COURT: He told you if there was a refusal, he’s

dead in the water.

MR. WAIT: They are going to testify after he blew the

first time, they asked him to blow three more times. Then the

testimony is, they will quote something like, “I’m not

blowing that “F-ing” machine again.

THE COURT: He blew once, then not again.

MR. WAIT: Three times insufficiently.

THE COURT: After the fourth attempt, did he say—

MR. WAIT: Yes, “I’m not going to do this anymore.”

THE COURT: He blew four times. All right, I don’t

know how you can characterize that. 6

MS. HARRIS: It’s considered a refusal. I will mention

that State’s putting on evidence that he refused to provide a

sufficient sample.

MR. WAIT: I think that forms an opinion.

69a

THE COURT: What happened the first time, did he blow

sufficiently?

MR. WAIT: That is correct.

MS. HARRIS: I think so.

THE COURT: You need two tests?

MS. HARRIS: We need three. They take an average.

THE COURT: He blew sufficiently one time, he failed to

blow sufficiently three times, and then he said, “that’s it.”?

MR. WAIT: Right.

THE COURT: And arguably—

MR. WAIT: At this point what you are listening to is a

man who already has a lot of strong pre-formed opinions.

Added to that, as soon as he hears someone talking about a

refusal, he says, “that’s it.”

THE COURT: He said, “if there was a refusal, then,

that’s it.” Was there a refusal?

MR. WAIT: The fact is, he’s saying he’s not going to

-consider any other evidence.

THE COURT: Ifa condition is met.

MR. WAIT: What he is saying 1s, he will rule out any

other evidence.

70a

THE COURT: I know what he is saying. I think he is

saying one thing and meaning another thing.

MR. WAIT: I think it is sufficient to strike him for cause.

THE COURT: Okay, you do. State.

MS. HARRIS: I think there is enough to strike him for

cause at this point.

THE COURT: AIl night, Juror No. 6. said he would try to

be impartial. Juror No. 2. said it would be difficult to be

impartial. Yes, there’s as far as we went. We can live with

difficulty. I will.

MR. WAIT: I wrote “impartial,” but yet I wrote a stat

and circled it, which usually is a bad indication. My

recollection is he answered in such a way he may not be able

to be impartial here.

~ THE COURT: Let’s bring Juror No. 2. in.

(Juror No. 2. enters chambers.)

THE COURT: You are Juror No. 2., Charles Vine?

JUROR NO. 2.: Yes.

~THE COURT: Mr. Vine, a question was put to you,

“would it be difficult for you to be impartial,” and the answer

was, “yes.” Okay, a-different question, a similar question:

Can you be impartial with respect to this case?

Tla

JUROR NO. 2.: I think so.

THE COURT: At this point, are you inclined to believe

one side as opposed to the other side?

JUROR NO. 2.: Not necessarily, no.

THE COURT: You are at point zero?

JUROR NO. 2.: Yes.

THE COURT: You are fair and neutral ‘s to each side? _

JUROR NO. 2.: Yes.

THE COURT: Mr. Wait——.--

MR. WAIT: No questions.

THE COURT: State. —————__

MS. HARRIS: No, thank you, sir.

THE COURT: Thank you, you may return to your seat.

MR. WAIT: Regarding Number 11., I wrote, “he has

formed an opinion as to this defendant that he’s guilty.”

MS. HARRIS: No, I think he said he kind of feels that

way. I got into it with him, and he said, “I can be impartial.”

THE COURT: That’s right. His last words were, he said

he could be impartial. All mght, so 1 am pondering on

72a

Number 6. He said he believes he is neutral. We will stay

with him.

Okay, there was one other point you raised, it had to do

with—

MR. WAIT: Juror No. 16., you struck 16. for cause,

questioned her in front of everybody then struck her. I just

ask if anybody is struck for cause that it be done with our

discussion.

THE COURT: Do you object to me dismissing her for

cause?

MR. WAIT: She is dismissed, I don’t think we can get

her back. I renew my objection for the record.

THE COURT: What objection?

MR. WAIT: I object to her being struck for cause in open

court.

THE COURT: Because you didn’t make a satisfactory

inquiry that she was unable to be neutral?

MR. WAIT: Yes.

THE COURT: She answered three time she couldn’t be

neutral. Okay. Juror 21. went to 4. Juror 23. went to 16.

(In open court.)

THE COURT: Now the attomeys are going to strike

down to twelve of you. After that we will break for lunch,

and we will come back and start the trial.

\ 73a

(Attorneys make their strikes.)

THE COURT: Ladies and gentlemen, the clerk will now

read the names of, the twelve of you selected to serve on this

jury. If you are not selected, you should return to Jury

Assembly for further instructions. We thank you for coming

over and participating to the extent that you have. And the

clerk will now call the names of the twelve.

THE CLERK: Brent Lowell, Doreen Zalenski, Charlotte

Thomas, Peter Cunningham, Wayne Seidel, George Frey,

Loretta Staszak, Julie Everett, Elouise Gage, Darlene Loche,

and Ronald Agor.

I’m sorry, I missed one, that’s Laura Marek. Mr. Agor, I

apologize, you were not selected. Colleen Hershberger was

selected, Colleen Hershberger.

THE COURT: All right, we’ve got twelve, and we will

break for lunch. Folks, come back at 2:15.

(Jury leaves courtroom at 1:15 p.m.).

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.