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No error in failing to strike allegedly biased juror at TPR trial

Sheboygan County DHHS v. K.N.L., 2017AP2413, District 2, 8/22/18 (one-judge decision; ineligible for publication); case activity

K.N.L. asserts a prospective juror (“Juror J.”) was biased and so the circuit court erred in declining to strike her for cause. Applying Wisconsin’s case law governing jury bias (summarized at ¶¶13-16), the court of appeals affirms the circuit court’s conclusion the juror wasn’t biased and, even if she was, the failure to strike her was harmless as she didn’t end up on the jury because K.N.L. peremptorily struck her.

¶17     …[T]he circuit court made a clear record as to why it ultimately determined that prospective Juror J. was neither subjectively nor objectively biased. We cannot improve upon it. As the circuit court noted, prospective Juror J.’s strong feelings were related to child abuse, not child neglect, and the case was not about child abuse. Furthermore, prospective Juror J. expressed that she could decide the case based upon the facts presented and the law as instructed by the court. The court, having directly observed prospective Juror J.’s demeanor, tone and inflection of voice, etc., found her to be sincere and believable in this regard. Neither K.N.L. nor our own review of the record provides us with a basis to question that. The court did not strike prospective Juror J. because the court found that she was not biased, and we find no error in this.

One might ask just how likely it is that Juror J. was aware of the distinctions between “abuse” as defined in § 48.02(1) and “neglect” as defined in § 48.02(12g), and was keeping those distinctions in mind just as assiduously as, say, a circuit court or court of appeals judge would, rather than lumping “abuse” and “neglect” together as different, but equally odious kinds of child maltreatment, as some unschooled layperson might. That said, Juror J., unlike another juror who was removed for cause, was rehabilitated by the county’s attorney, and attested she could decide the case based on the evidence and the judge’s instructions, and that is enough to doom K.N.L.’s challenge. (¶¶5-6, 18). In any event, any error in not removing her for cause was harmless because Juror J. didn’t stay on the jury. K.N.L. removed her with a peremptory strike, and K.N.L. makes no argument she wasted that strike to remove a biased juror she would otherwise have used against a different juror, nor does she argue any juror who actually served was biased. (¶¶23-28).

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