State v. Richard Leo Mathewson, 2022AP2124-CR, 6/17/25, District IV (not recommended for publication); case activity
COA holds that prospective juror’s equivocal answers during voir dire regarding bias against defendant charged with sexual assault of a child is not sufficient to overcome presumption that juror is impartial.
During voir dire for Richard Mathewson’s trial for repeated sexual assault of a child, the circuit court asked prospective jurors whether they had “a feeling of bias or prejudice in the outcome of the case?” Juror Mary raised her hand; the court explained to her the civic duty to serve on a jury, the State’s burden of proof, and the presumption of innocence before asking whether she could be fair, impartial, and unbiased. She answered: “I honestly don’t know.” (¶ 5).
The circuit court discussed Mary’s answers with her and the parties in chambers; the court again reviewed with Mary the State’s burden of proof and the presumption of innocence. The court asked: knowing nothing about the case other than the charge, are you able to sit as a juror, listen to the evidence, evaluate it, and make a decision on the facts? Mary answered: “Like I said, I honestly don’t know. When I hear sexual assault of a child, it breaks my heart.” The court responded that her feeling is common, but questioned if she could listen to the court’s instructions and apply them to the evidence presented. Mary said: “Yeah, I know what you are saying, but I don’t know. I don’t know if I could. I hear that and – it’s not right, but I can’t help it.” (¶ 6).
The prosecutor asked Mary whether she could set aside her dislike for the notion of sexual assault, listen to the facts, and determine whether the allegations were true? Mary said: “I could try. I could try.” (¶ 7). The court and prosecutor continued to ask Mary whether she could listen to the jury instructions and apply them to the case, and Mary responded: “I’ll try.” (¶ 7).
Mary remarked that one of the reasons she was unsure whether she was more likely to believe the victim was because she had not yet heard the facts of the case. Mary said she was never sexually assaulted but knew “that it damages the lives of the innocent.” (¶ 8). When the court advised Mary how she would be required to perform the obligation of a juror, she said twice “I’ll do my best.” (¶ 8).
Defense counsel asked the court to remove Mary for cause, which was opposed by the State. The circuit court denied defense counsel’s request because she understood that she was required to follow the court’s instructions and was not as emotional as some of the jurors who had been struck, who were crying. The circuit considered significant that Mary did not know if she would follow the instructions and apply them to the case because she did not know the facts of the case. The court cited Mary’s comment that she was “going to do her best,” which the court considered what “probably 99 percent of people would say from the community when they come onto the jury.” (¶ 10).
Neither defense counsel nor the State exercised a peremptory strike to remove Mary, and she served on the jury. Mathewson was convicted of repeated sexual assault of a child. (¶ 11).
Mathewson argued on appeal that the circuit court erred by denying his request to strike Mary for cause because she was subjectively biased. “’A prospective juror is subjectively biased if the record reflects that the juror is not a reasonable person who is sincerely willing to set aside any opinion or prior knowledge that the prospective juror might have.’” (¶ 15, quoting Theodore Oswald). A court presumes that a prospective juror is impartial and the party challenging impartiality bears the burden to rebut the presumption. (¶ 14, citing Funk). The Court considered significant Wisconsin law establishing that a prospective juror is not required to give “unequivocal assurances” he or she would be able to set aside any opinion, and a juror’s response of “I’ll try” when asked if he or she can be impartial does not conclusively demonstrate bias. (¶ 16, citing Kiernan and James Oswald).
The Court remarked that the standards to show subjective bias do “much of the ‘heavy lifting’” and concluded Mathewson did not meet his burden to show subjective bias. (¶ 17). The Court considered that Mary’s overall comments with respect to whether she could be impartial and willing to set aside any opinion she might have were “equivocal.” (¶ 20). The Court disputed Mathewson’s characterization of Mary’s comments as asserting or admitting her bias: “At most, she was candidly uncertain if she could be unbiased. She did state, however, that she would try her best to do so.” (¶ 25).
The Court cited Mary’s comments during individual voir dire that did not indicate whether she was or was not biased, but explained that she reacted negatively “to a possible sexual assault of a child having happened . . . Because Mary never communicated having a clear bias, her lack of express assurances to the contrary is less problematic. Mary simply remained equivocal regarding her ability to overcome any generalized subjective bias she may have had.” (¶ 23).
The Court did not consider the circuit court’s findings clearly erroneous given that “the circuit court witnessed Mary while she answered the voir dire questions, and this court did not.” (¶ 30).
