¶1 Sharon Sellhausen appeals her jury conviction based on the presence of the presiding judge’s daughter-in-law on the panel of potential jurors. The daughter-in-law was not seated on the jury because Sellhausen’s trial counsel used a peremptory challenge to remove her. Sellhausen argues on appeal that she is entitled to a new trial because the presiding judge should have removed his daughter-in-law sua sponte instead of forcing her trial attorney to either move to strike for cause or exercise a peremptory strike. The State does not dispute that the best practice would have been for the presiding judge to remove his daughter-in-law sua sponte, but argues that there is no prejudice here because the daughter-in-law did not actually sit on the jury. We disagree with the State. The problem here is that it is difficult to measure the precise effect on trial counsel’s conduct during voir dire when a presiding judge’s family member is part of the panel of potential jurors. There is too much of a risk that the situation creates a chilling effect on robust inquiry, inquiry that is oftentimes critical to the selection of an impartial jury. This was the concern of both the lead opinion and the concurring opinion in State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, and although the fact situation is different, that concern continues to percolate here. Accordingly, we reverse and remand for a new trial.
Tody found reversible error where the trial judge denied the defense motion to remove his mother from the panel, and counsel didn’t strike her. In this case, the defense didn’t ask for the in-law’s removal, but did strike her. Despite these differences, the court of appeals concludes that Tody (a split, 3-3 decision) controls, because its thrust compels a judge to take sua sponte action to remove a relative:
¶13 The logic behind the Tody concurrence is in harmony with the proposition that judges must act sua sponte to remove immediate family members from the panel of potential jurors in each case. In addition, both the lead opinion and the concurrence expressed concern for cases where judges are asked to rule on matters involving their own family members. Id., ¶30 (“The appearance of fairness and propriety clearly is lost when the critical determination of whether a prospective juror should be excluded as a juror on the ground of bias is entrusted to a circuit court judge who is a member of the juror’s immediate family.”); id., ¶61 (Ziegler, J., concurring) (“The judge could not rule on a motion which directly involves his mother as a juror. He did, however, rule on a motion that concerned striking her as a juror.”)
¶14 Based on the concerns raised in both the lead opinion and the concurrence of Tody, we hold that presiding judges must sua sponte remove their immediate family members from the panel of potential jurors. We do so in part because any other holding would require judges to rule on a party’s motion to strike judges’ immediate family members from the jury pool, a possibility that clearly concerned the Tody court.
Nor does counsel’s use of a peremptory mitigate harm, the presence of a family member amounting to an exception to the general rule:
¶18 Lindell overruled State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), which required automatic reversal any time a defendant used a peremptory challenge to strike a juror who should have been struck for cause. Lindell, 245 Wis. 2d 689, ¶5. The Lindell decision was based in part on the systemic problems that the Ramos holding posed. See Lindell, 245 Wis. 2d 689, ¶¶95-108. Specifically, the Lindell court pointed out that challenges for cause based on something other than statutory bias often involve elements of discretion. See id., ¶96. In such cases, verdicts may be reversed based on disagreements between the trial court and appellate judges “notwithstanding the absence of any deficiency in the first trial.” Id., ¶103. Implicitly, then, Lindell was based on the premise that the use of a peremptory challenge fully corrected the trial court’s error by removing the problematic juror from the jury.
¶19 We agree with Sellhausen that Tody expresses concerns that are not addressed by the Lindell holding. In particular, the lead opinion in Tody expressed concern about the chilling effect that the mere presence of a judge’s immediate family member might have on trial counsel’s behavior during trial. …
¶20 If we accept Tody’s concerns about a possible chilling effect, then when a presiding judge does not remove his or her family member sua sponte, the defendant is essentially robbed of the right to aggressively question a juror related to the presiding judge. …
The court declines to ground its opinion in the sixth amendment, invoking instead the court’s inherent authority to administer justice, ¶22. Stirring conclusion, by an excellent stylist:
¶23 We are mindful that it might appear as though we, as a mainly error correcting court, are stepping out to further a concept initiated by the three member concurring opinion in Tody. But we are confident that we are interstitially applying the underlying rationale of that opinion. Our holding comports with the common ground shared by concurrence and the lead opinion—the idea that there are multiple “red flags” when judges rule on matters involving immediate family members. Tody, 316 Wis. 2d 689, ¶4; see also id., ¶59 (Ziegler, J., concurring). The situation will present itself rarely, but when it does, it should always be obvious to the presiding judge that it exists. So, why should there be a need to wait for a motion to strike from trial counsel? The situation here is in stark contrast to the more nebulous juror bias decisions that concerned the Lindell court. See Lindell, 118 Wis. 2d 689, ¶¶96, 103. We are satisfied that a bright-line rule such as this is far more efficient than a case-by-case analysis of whether the presence of a prospective juror on the voir dire panel might have affected the outcome of a trial. While Sellhausen receives a new trial, in the long run, Wisconsin’s idea of a just and efficient court system prevails.