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Jury – Bias / Disqualification – Prospective Juror Familiarity with Theory of Defense

State v. Judith L. Kiernan, 227 Wis.2d 736, 596 N.W.2d 760 (1999), affirming State v. Kiernan, 221 Wis.2d 126, 584 N.W.2d 203 (Ct. App. 1998)
For Kiernan: Chad A. Lanning, Dennis M. Melowski, Barry S. Cohen, S.C.

Issue: Whether prospective jurors who had been part of a jury that two days earlier returned a verdict of guilty in a case involving the same defense attorney, similar facts, and the same defense theory could objectively set aside their opinion or prior knowledge so as to fairly and impartially decide Kiernan’s case.


¶21 … We must reverse the decision of the circuit court because we determine as a matter of law the court could conclude only that the veteran jurors were objectively biased.7¶22 The overwhelming majority of jurisdictions, both state and federal, have concluded that jurors who serve on another jury involving similar facts and issues need not categorically be removed for cause solely on that basis.

¶23 Moreover, we have been quite hesitant to create classes of persons that are per se excluded from jury service. …

¶24 Rather, a party seeking to have that veteran juror removed for cause will need to make an individualized showing that the particular juror is objectively biased ….

¶25 We arrive at this conclusion based on the veteran juror’s statement at voir dire, … that the juror believed that the Intoxilyzer 5000’s readings would be correct unless it could be shown either that the machine was operated by an unqualified person or that the machine failed its self diagnostic check. Three other veteran jurors concurred in this judgment.

¶28 The crux of Kiernan’s defense was that the breathalyzer rendered an inaccurate reading for reasons other than operator error or machine malfunction. By their own statements at voir dire, the veteran jurors had reached a conclusion on that very issue before they heard one sentence of testimony. …

7 The State contends that the lack of a voir dire transcript means that we must assume that the veteran jurors maintained that they could be impartial and the circuit court believed them. We agree and have done so. However, the State seems to imply that this ends the inquiry.The State fails to appreciate, however, that our objective analysis presupposes that such assurances are present. The purpose of the objective analysis is to probe beyond what a juror asserts in order to examine whether reasonable jurors could actually act in the manner the jurors stated they would act.

The dissent (¶¶36-47) would have overruled State v. Ramos, 211 Wis. 2d 12, 546 N.W.2d 328 (1997)] on the issue of “automatic reversal” (use of peremptory on challenged juror doesn’t resolve challenge to juror bias). It should be noted that the dissent ultimately prevailed on this point, in State v. Nathaniel A. Lindell, 2001 WI 108. But there was no dispute (albeit no discussion, either) on the separate “automatic reversal” rule that a biased juror necessarily taints the verdict, without regard to harmless error enalaysis. For an interesting variation on this theme, see, Quintero v. Bell, 256 F.3d 409 (6th Cir. 2001) (counsel’s acquiescence in seating of 7 jurors who had convicted convicted co-conspirator of same offense in separate trial, amounted to ineffective assistance; erroneous presence of these jurors “merits a presumption of prejudice” because it “amounted to structural error, which we exempt from harmless error analysis”), affirmed on remand368 F.3d 892 (6th Cir. 2004) (relief on ineffective-assistance ground, where “counsel’s acquiescence in allowing seven jurors who had convicted petitioner’s co-conspirators to sit in judgment of his case surely amounted to an abandonment of ‘meaningful adversarial testing’ throughout the proceeding, making “the adversary process itself presumptively unreliable”).

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