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Appellate Procedure – Harmless Error – Jury Selection – Disqualified (Non-English Speaking) Juror

State v. Michael W. Carlson, 2001 WI App 296
For Carlson: Steven L. Miller

Issue/Holding: Erroneous impaneling of a juror who, because he could not understand English, should not have been seated, wasn’t harmless beyond a reasonable doubt.

¶46. The harmless error rule adopted last term by this court in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, and State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367, is one that is applicable for evaluating an error’s harmlessness, whether the error is constitutional, statutory, or otherwise. Harvey, ¶40; State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). Application of that rule here does not change our conclusion in this case, since we cannot conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. The circumstances here preclude such a conclusion.¶47. An ability to understand the English language is necessary in order to satisfy the statutory requirements of Wis. Stat. § 756.02 and § 756.04. If a juror cannot meet the statutory requirements, then the entire trial process may be nothing more than an “exercise in futility.” Coble, 100 Wis. 2d at 216. It is clear that Vera did not meet those requirements and, therefore, he was not qualified to serve as a juror. The error here in failing to follow the statutory provisions and to apply them to the facts established at the postconviction motion hearing was not harmless. Here Carlson was prejudiced when a juror who was not qualified under the statutes, and who did not have sufficient understanding of English so that he could meaningfully participate in the trial process, was allowed to serve as a juror.

The court comes awful close to uttering the dread words, “structural error” – necessarily harmful error – though not explicitly so. But that does seem to be the import: seating a juror who should have been disqualified necessarily taints the result, without regard to harmless-error analysis. Nonetheless, the majority does pay lip service to that analysis, disagreement over which is the subject of the Chief Justice’s concurrence. ¶¶56-60. The dissent points out that the majority’s harmless error analysis is “conclusory”; so much so in fact that it may actually mean that the “error is per se prejudicial,” ¶84.

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