State v. C.B. & State v. N.M.M., 2022AP906 & 966, 11/29/22, District 1 (one-judge decision; ineligible for publication); case activity
C.B. and N.M.M. appeal the termination of their parental rights. They challenge the method the Milwaukee Clerk of Courts used to select the venire for their trial: drawing from a pool of “reserve jurors” and selecting those whose surnames began with “G” and “H.” They further request a new trial because there were no African Americans on the panel.
For reasons apparently related to the occupancy limit of the Children’s Court when this case was being tried, the clerk’s office populated jury panels with “reserve jurors.” These jurors were on a list in alphabetical order; an employee of the clerk’s office had a practice of selecting them by seeing how many jurors are needed, then “try[ing] to match that number to the total number of jurors with last names beginning with one or more sequential letters.” (¶10). During voir dire, C.B.’s attorney moved to strike the venire this process had produced, noting there was “not a single African-American person on the panel.” (¶5). The circuit court denied this request; both parents’ rights were eventually terminated after trial.
Post-disposition, the parents again moved for relief based on the method of selection of the jury panel. That motion was also denied, and they appealed.
On appeal, they argue that the alphabetical method of selection is not “random” as the statutes mandate. See Wis. Stat. § 756.001(4). They note that the choice of a starting letter could affect the racial makeup of a panel: “they note that for non-Hispanic white Americans, the letter S began four of the top ten surnames; whereas none of the top ten surnames with the closest relationship to a person being African American began with the letter S.” (¶17). The court of appeals is not convinced:
I agree with the State and GAL that the compilation of the jury panel was random. It is clear from the Jury Services Manager’s description that she did not select jurors based on any specific characteristics, such as race, sex, or age. Rather, the Jury Services Manager would select jurors based on the number of jurors needed and then “try to match that number to the total number of jurors with last names beginning with one or more sequential letters” until she reached the desired number. As the circuit court explained, the fact that the number of jurors needed could change based on the particular date, demonstrates “a randomness in and of itself … and therefore, the choices she has when she goes to the alphabet.”
Moreover, there is no indication that the Jury Services Manager was selecting jurors based on a specific letter. For example, it is undisputed here, that at the February 2020 trial, which ended in a mistrial, the jurors on the panel had last names starting with A, B, C, D, and E. Conversely, in the August 2021 trial, which resulted in verdicts, the jurors on the panel had last names starting with G and H. Thus, I conclude that the Clerk’s Office complied with WIS. STAT. ch. 756, and C.B. and N.M.M. are not entitled to a new trial.
(¶¶19-20).
The court of appeals also rejects the parents’ request for a new trial in the interest of justice. They note that there were no African Americans on the panel. The court responds that
I agree with C.B. and N.M.M. that racially diverse juries are important. See State v. Spencer, 2022 WI 56, ¶¶87-93, 403 Wis. 2d 86, 976 N.W.2d 383 (Dallet, J., dissenting) (providing a detailed discussion of the importance of racially diverse juries to enhancing a jury’s performance in criminal trials and the public’s perception of fairness in the judicial system). I also agree that the better practice would be for the Clerk’s Office to use a tumbler or automated system to compile names. However, I am not persuaded that this case is an “exceptional” case warranting a new trial. See State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639, 700 N.W.2d 98.
As discussed above, the Clerk’s Office did not violate WIS. STAT. ch. 756. Moreover, a disproportionate representation of a distinctive group on one jury panel standing alone is not sufficient to prove systematic representation, see State v. Pruitt, 95 Wis. 2d 69, 76, 289 N.W.2d 343 (Ct. App. 1980), and “[d]efendants are not entitled to a jury of any particular composition,” see Taylor v. Louisiana, 419 U.S. 522, 702 (1975).
(¶¶22-23). Relying on Oliver v. Heritage Mutual Insurance Co., 179 Wis. 2d 1, 4-5, 505 N.W.2d 452 (Ct. App. 1993), it also rejects the suggestion that the court should have acted to ensure some African-American representation on the jury, saying this would violate the statutory command of random selection. (¶25).
