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Jury – Deliberations – Sequestration

State v. Bradley A. Brandsma, 2010AP1429-CR , District 4, 12/23/10

court of appeals decision (1-judge, not for publication); for Brandsma: Anthony J. Jurek; case activity; Brandsma BiC; State Resp.; Reply

Trial courts have “very broad discretion” under § 972.12 to allow a deliberating jury to separate overnight before returning to resume deliberations; court of appeals rejects argument under state and federal constitutions “a circuit court should presume that any separation of a jury renders that jury impartial in light of rapidly changing modes and content of publicly available information,” ¶14. The court of appeals also stresses the absence of any suggestion of juror misconduct in this particular case, or any reason to think the case attracted unusual community-wide attention, ¶20.

You haven’t heard the last of the interplay of trial practice and social media. (The court here refers to Brandsma’s concern as “the tip of a growing iceberg that no doubt potentially threatens every criminal defendant’s elemental right to an impartial jury,” ¶16.) One expedient, of course, would be a cautionary instruction, warning jurors not to conduct their own research or discuss the case over the internet. Texas is considering an amendment to its rules of procedure to require such an instruction. The trial court here gave a cautionary instruction before allowing jury separation, ¶7. The instruction may have been broad enough (“do not do any independent research”) to cover the necessary base, but a more refined one could certainly be devised. Nor is the problem limited to juror research. For some, self-expression seems to be an irresistible impulse, and recent examples of jurors tweeting may be found here; and juror blogging, here.

The court’s parting observation deserves mention:

¶21      Finally, this court may not announce new rules of constitutional interpretation that are not tethered to binding precedent.  Cook v. Cook, 208 Wis. 2d 166, 188-89, 560 N.W.2d 246 (1997).  No one could reasonably question the fact of rapidly mushrooming sources of instant, easily accessible, and potentially prejudicial communications.  Yet Brandsma has not cited authority binding on this court even implying that the federal or Wisconsin constitutions might require a court to presume a lack of impartiality arising purely from separation of a jury in light of these changing social and technological circumstances.  Therefore, this court is without authority to announce and apply such a new rule for the first time here.  Accordingly, the judgment of conviction is affirmed.

Cook holds that only the supreme court, not the court of appeals, has authority to modify language from prior published opinions, or to overrule precedent. The text of that opinion doesn’t support the narrow view presently derived (“this court may not announce new rules of constitutional interpretation that are not tethered to binding precedent”). Indeed, as Judge Fine recently suggested, Cook if anything suggests the contrary, State v. Jason W. Kucik, 2009AP933-CR, ¶46, District 1, 11/16/10 (Fine, J., conc.):

… Simply put, there is no specific on-all-fours case because the issue has apparently not come up before now.  That, of course, is no reason to not decide the issue.  See Cook v. Cook, 208 Wis. 2d 166, 188, 560 N.W.2d 246, 255 (1997) (“The court of appeals, a unitary court, has two functions.  Its primary function is error correcting.  Nevertheless under some circumstances it necessarily performs a second function, that of law defining and law development, as it adapts the common law and interprets the statutes and federal and state constitutions in the cases it decides.”). …

Moreover, as a matter of both constitutional (Art. VII § 5(3)) and statutory (§ 752.02) prescription, the court of appeals has “supervisory authority” over all courts except the supreme court. And as a practical matter, how likely is that that a court would announce a new constitutional rule untethered to precedent? If Cook doesn’t support the principle cited by BrandsmaState ex rel. Swan v. Elections Bd., 133 Wis. 2d 87, 93-94, 394 N.W.2d 732 (1986) is slightly closer to the mark, while still falling short:

Looking to our constitutional structure, it is apparent the supreme court is intended to have a different function from that of the court of appeals. The court of appeals is intended to be a high-volume, error-correcting court, having a close relationship to the circuit courts in respect to the superintending control of circuit court functions. On the other hand, this court, under our constitutional structure, is intended to make final determinations affecting state law, to supervise the development of the common law, and to assure uniformity of precedent throughout the state. The supreme court is primarily concerned with the institutional functions of our judicial system, while the court of appeals is charged primarily with error correcting in the individual case. …

Cook certainly ties the court of appeals’ hands, in the sense that it precludes the possibility of revisiting published holdings (absent, of course, intervening changes in law). As to whether the court of appeals wants to restrict its own authority further, in apparent contravention of express constitutional and statutory powers, Brandsma may simply be an outlier. But if the court is going to adhere to the view quoted above, then an increase in bypass petitions and certification requests should follow – not to say a direct challenge to the court of appeals’ scanting of its own authority.

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