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Jury – Selection – Bias / Disqualification – Employment by DA’s Office

State v. Dale L. Smith, 2006 WI 74, affirming unpublished decision
For Smith: Allison Ritter


¶16      The sole question we must address on appeal is whether Smith was denied the right to an impartial jury by the circuit court’s refusal to strikeCharlotte for cause. Smith argues that Charlotte should have been disqualified as objectively biased because she was employed by the prosecuting attorney. Essentially, Smith seeks a per se rule in Wisconsin that employees of the Milwaukee County District Attorney’s Office cannot serve on juries in criminal cases prosecuted by their employer. Alternatively, the State argues that Charlotte did not demonstrate objective bias, and this court should not create a per se disqualification for such employees.

¶17      We believe in this case, the circuit court reasonably concluded thatCharlotte was not objectively biased under the totality of the circumstances. We further refuse to create a per se exclusion of potential jurors that are employed by the Milwaukee County District Attorney. In our view, the exclusion of jurors on the basis of objective bias is best left to the case-by-case discretion of the circuit court.

Because there is no per se rule, the issue is necessarily fact-specific:

¶24      In this case, the State of Wisconsin was represented by the Milwaukee County District Attorney’s Office, located in the Courthouse Complex in downtownMilwaukee. Charlotte serves as an administrative assistant for the District Attorney’s Office located in the Children’s Court Center in Wauwatosa. She does not work on investigations. Furthermore, the record does not show any indication that Charlotte recognized Harris or vice versa. There is also no evidence that Charlotte had any contact with Harris, any prior familiarity with the case, or any work connected to the office in Milwaukee.

¶25      Additionally, both attorneys pressed Charlotte to consider whether her position as an administrative assistant for the District Attorney would influence her decision, and each time she responded unequivocally that she could be fair and impartial. …

If there are not any other prosecutor’s offices in the state decentralized same as Milwaukee, this may represent the outer limit of what is tolerable, as the majority (the court splits 4-3) itself seems to acknowledge:

¶28      We fully recognize there may be situations where an employee of the Milwaukee County District Attorney will be objectively biased.  Indeed, “‘we caution and encourage the circuit courts to strike prospective jurors for cause when the circuit courts “reasonably suspect” that juror bias exists.'” Lindell, 245 Wis. 2d 689, ¶49 (quoting Ferron, 219 Wis. 2d at 495-96). However, permitting an administrative assistant to serve on a jury who works at a different office in a different city than the prosecuting office and who otherwise knows nothing about the case, the defendant, and does not even recognize the prosecutor is not such an “extreme situation” that we must conclude the circuit court erred in refusing to strike Charlotte for cause.

That said, the majority also appears predisposed to reject any absolute, categorical rules of disqualification.


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