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SCOW rebuffs 7th Circuit, reaffirms Wisconsin’s test for juror bias

State v. Jeffrey P. Lepsch, 2017 WI 27, 3/31/17, affirming a per curiam court of appeals opinion, case activity (including briefs)

This appeal primarily concerns whether trial counsel was ineffective for failing to: (a) object to the seating of biased jurors, and (b) ensure that the trial court properly administered the oath to the venire panel in Lepsch’s presence.  SCOW holds that none of Lepsch’s jurors were biased, and the venire panel was properly sworn. Thus, no ineffective assistance of counsel occurred. Justice Abrahamson’s concurrence acknowledges Wisconsin law governing juror bias appears inconsistent both internally and with federal case law and strives to harmonize it for the bench and the bar.

Juror bias.  A juror is subjectively biased if he has expressed or formed any opinion about the case before hearing the evidence. State v. Funk, 2011 WI 62, ¶37, 335 Wis. 2d 369, 799 N.W.2d 421. In Wisconsin, such a juror may still sit on the jury if “he is a reasonable person who is sincerely willing to set aside any opinion or prior knowledge that the juror might have.” State v. Kiernan, 227 Wis. 2d 736, 745, 596 N.W.2d 760 (1990). This test is worded differently than the tests used by SCOTUS in Patton v. Yount, 467 U.S. 1025, 1036 (1984) and the Seventh Circuit in United States v. Allen, 605 F.3d 461, 464-465 (7th Cir. 2010). According to Allen, a prospective juror who has been challenged for cause may be seated:

if the prospective juror has given final, unequivocal assurances, deemed credible by the judge, that for purposes of deciding the case, she can “set aside any opinion [she] might hold,” Patton v. Yount, 467 U.S. 1025, 1036, (1984), “relinquish her prior beliefs,” Thompson, 248 F.3d at 626, or “lay aside her biases or her prejudicial personal experiences,” United States v. Gonzalez, 214 F.3d 1109, 114 (9th Cir. 2000). See Thompson, 248 F.3d at 626 (collecting cases).

SCOW holds that Yount did not impose a bright-line rule. Majority at ¶34.  To the contrary, Yount holds that when a prospective juror has made inconsistent statements about her ability to be impartial, the trial court may choose which of her statements to believe. Id. at ¶35. There is no hard-and-fast formula for how thorough voir dire should be, and a prospective juror need not use magic words to convey the requisite impartiality. Id¶36.

Lepsch was convicted of killing 2 people during an armed robbery. He raised several juror bias claims. One was that 13 of the State’s 31 witnesses were law enforcement officials, and 2 prospective jurors checked a questionnaire box indicating that they thought police officers were more credible than other witnesses, but nobody asked them about their belief.  SCOW found them not biased because elsewhere on their 11-page juror questionnaire they both indicated there was no reason they could not be impartial in this case. In addition, they were present during the questioning of jurors as a group where it was made clear that bias in favor of law enforcement would be inappropriate. Id¶¶28-30.

Administration of oath. The clerk of court administered the oath to prospective jurors outside of Lepsch’s presence. Lepsch argued that this deprived him of his right to be present during voir dire and violated §805.08(1) which requires the court (not the clerk) to examine prospective jurors on oath. SCOW held that administration of the oath is part of voir dire and under §756.0001(5) the court could delegate this task to the clerk. Indeed, if SCOW accepted Lepsch’s argument, circuit court clerks would be unable to carry out a long list of statutorily-prescribed tasks for managing propsective jurors. Id. ¶43 (see tasks cited therein).

In an On Point guest post Judge Sankovitz lamented the fact that SCOW had not seized the opportunity presented by State v. Funk to clarify the law governing voir dire. The majority opinion marks another missed opportunity.  The Eastern District of Wisconsin granted habeas relief to a defendant convicted in a Wisconsin circuit court specifically because the court did not comply with the 7th Circuit’s “unequivocal assurance of impartiality” test. See Oswald v. Bertrand, 249 F. Supp. 2d 1078 (E.D. Wis. 2003), aff’d, 374 F.3d 475 (2004), Thompson,  Allen, and Marshall v. City of Chicago, 762 F.3d 573 (7th Cir. 2014).  The majority opinion does not acknowledge any of these cases even though the parties and the amicus briefed them.

Justice Abrahamson, on the other hand, admits that some Wisconsin cases seem to contradict the 7th Circuit’s interpretation of  Yount. See e.g. Faucher (“a prospective juror need not unambiguously state his or her ability to set aside bias”) and Erickson (“a prospective juror need not respond to voir dire questions with unequivocal declarations of impartiality.”); Ferron (“a juror’s final word of ‘probably’ is insufficient.”) Like the majority, she argues that the 7th Circuit’s interpretation is inconsistent with Yount and other federal circuits. Concurrence at ¶¶67-78. She sets out 6 bullet points to show how Wisconsin law may be harmonized with both SCOTUS and 7th Circuit precedent. Attorneys working on this issue should be sure to read them. Concurrence at ¶89. Despite her efforts, Oswald and 7th Circuit cases above provide Lepsch ammunition for a federal habeas petition.

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