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Jury – Selection – Bias / Disqualification – Doubtful Fairness: Predetermined Guilt – Trial Court Obligation to Conduct Hearing

State v. Theodore Oswald, 2000 WI App 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling

Issue: Whether prospective jurors’ expressions of predetermined guilt established either objective or subjective bias.

Holding: Applying a mixed standard of review, the court discerns no bias, in that the strength of these opinions changed during voir dire and, more importantly, because the defense conceded factual guilt.

Issue: Whether the trial court erred in refusing to hold a hearing on juror misconduct when presented with information that at least one prospective juror was discussing the defendant’s guilt during voir dire.

Holding: Given that the juror indisputably thought the defendant guilty, no hearing was necessary.

During voir dire, it became apparent that at least several jurors were discussing Oswald’s guilt. The trial court denied a defense request to inquire into whether any of the jurors already qualified to serve had been tainted by these discussions. On postconviction motion, Oswald presented one prospective juror (not ultimately seated) who had heard three others, including one who was seated, express opinions that Oswald was guilty and the trial would be a waste of time. ¶¶39-40. This was insufficient, the court of appeals holds, to establish juror misconduct. The postconviction testimony was apparently insignificant because the seated juror had already admitted he was biased and, therefore, his “admissions during voir dire were consistent with the alleged waiting room conversations.” (But this is a bit of a non-sequitur: he also told the court that he would set aside his opinion, ¶46, and the postconviction testimony shows that he was less than candid in this respect.

NOTE: This case was reversed on habeas review, Theodore W. Oswald v. Bertrand, 7th Cir. No. 02-2092, 6/29/04.

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