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Court of appeals infers juror’s impartiality from silence in response to question

State v. N.M.A.-S., 2018AP2308-09, 12/17/19, District 1 (1-judge opinion, ineligible for publication); case activity

This TPR case involves a mom with a substance abuse problem and her daughter  who had ingested morphine.  At the trial on grounds, defense counsel asked the jury pool: “Is there anyone that believes that someone who is struggling with an addiction currently is not fit to parent their children?”

Eleven potential jurors raised their hands. Defense counsel asked all to explain their opinions. Juror 8’s response is the one at issue:

¶11 . . . As relevant to this appeal, Juror 8 stated, “I’ve just worked with students that have picked up on what their parents are addicted [to] and are doing. And I just don’t think it’s right for your children to have to go through that.” Counsel then asked Juror 8, “Do you think you’ll be able to give [N.M.A.-S.] a fair shot given that we’re going to be talking about addiction in this case?” There was no response from Juror 8 noted in the record; it merely indicates that counsel went on to ask Juror 15 about his opinion.

Juror 8 wound up on the jury. The mom alleged that defense counsel was ineffective for failing to challenge Juror 8 for cause or use a peremptory strike against him/her. At a Machner hearing, counsel testified that if Juror 8 had not given some type of nonverbal cue to indicate that he/she could be fair, then she would not have proceeded to question the next juror. The postjudgment court held that counsel performed deficiently but her client, the mom, was not prejudiced.  Opinion, ¶17.

The court of appeals doesn’t explicitly say so, but it appears to reverse the deficient performance finding. The judges presiding at trial and at the postjudgment stage were different. The court of appeals said defense counsel (accused of ineffective assistance) was in “superior position” to assess Juror 8’s demeanor and credibility, and it was reasonable to conclude that Juror 8 indicated non-verbally indicated that he or she could be impartial. Opinion, ¶27.

Can an appellate court infer a nonverbal response from a prospective juror? It’s possible counsel got distracted or neglected to follow up. When a juror expresses doubt about her ability to be impartial her silence in response to en masse questions does not rehabilitate her. Should silence in response to individual questioning be treated differently? See e.g. Hughes v. United States, 258 F.3d 453, 458 (6th Cir. 2001); Johnson v. Armontrout, 961 F.2d 748, 754 (8th Cir. 1992).

The court of appeals also held that the mom gave input to defense counsel regarding the exercise of peremptory strikes. There were other jurors she disliked more than Juror 8. She waived any claim against counsel for these strategic decisions. Opinion, ¶28.

Missing from this decision: any mention the leading case on ineffective assistance of counsel and jury selection–State v. Lepsch, 2017 WI 27, 374 Wis. 2d 98, 892 N.W.2d 682. Lepsch holds that the appellate court defers to the circuit court’s findings (not defense counsel’s testimony) regarding juror bias. In Lepsch, 7 jurors stated in their questionnaires that they would give police officers more credibility than witnesses who weren’t officers. Some of the jurors also indicated on their forms that they could still be impartial. Others gave similar assurances in response to questioning. Here, the juror expressed bias, and there’s no record of his/her response to the question aimed at rehabilitating him/her.

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