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SCOW curtails defendant’s right to be present when a judge questions jurors during trial

State v. Alexander, 2013 WI 70, affirming an unpublished court of appeals decision, 2011AP394-CR; case activity; majority opinion by Justice Gableman; concurrences by Justice Crooks (joined by Chief Justice Abrahmason and Justice Bradley), Justice Ziegler, and separately by Chief Justice Abrahamson.

This decision is alarming.  During Alexander’s 1st-degree intentional homicide trial, concerns surfaced about whether, due to possible bias, 2 different jurors should continue serving on the case.  The judge conducted multiple in-chambers hearings where he questioned these jurors, but he excluded Alexander from those hearing.  Defense counsel did attend and was permitted to consult his client about the matter.

Constitutional Issue:  U.S. Const.  amends.  VI and XIV, §1;  Wis. Const. art. 1 § 7.

A defendant, of course, has federal and state constitutional rights to an impartial jury and to due process of law. He has the right to be present both at his trial and at  pre-trial proceedings, where important steps are taken, and where a fair and just proceeding would be thwarted by his absence.  See Leroux v. State, 58 Wis. 2d 671, 689-90, 207 N.W.2d 589 (1973) and U.S. v. Gagnon, 470 U.S. 522 (1983).  The majority opinion (written by Justice Gableman) holds that the in-chambers meetings between the judge, attorneys and two jurors were not the sort that Alexander was constitutionally entitled to attend because he could not have contributed anything to the judge’s inquiry of the jurors, and he might have intimidated them  Slip op. ¶32.

The majority’s path from point A to point B was neither short nor direct.  To get there, it overruled  State v. Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983), and depending upon how you look at it, overturned, or simply withdrew critical language from, State v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74.  Both cases hold that a defendant has constitutional and statutory rights to be present during a court’s communications with a deliberating jury.  Anderson premises that right, on the Due Process clause and the Sixth Amendment’s Confrontation Clause. Id., ¶34.  The  majority opinion fires pot shots at both decisions.  Burton was “carelessly” written.  Slip op. at ¶26.  And Anderson (a 5-2 decision) allegedly employed a “sleight of hand” to impose a constitutional right “to be present whenever the trial court speaks with members of the jury.”  Slip op., at ¶16.  Ouch!  Makes you wonder who wrote Burton and Anderson, doesn’t it?  Answer:  Chief Justice Abrahamson authored both.  Justice Crooks’s concurrence points out that there was no need overrule Burton and Anderson because Alexander had waived his right to be present at the in-chambers meetings and because his case did not involve a judge’s ex parte communication with a deliberating jury.  It involved in-chambers hearing about whether sitting jurors could continue to serve on the jury panel.

Statutory Issue: Wis. Stat. § 971.04(1).

Section 971.04(1)(b) and (c) say that a defendant has the right to be present “at trial” and also “during voire dire of the trial jury.”  The majority holds that “voire dire” under sub. (c) refers only to the preliminary examination of prospective jurors, not the examination of jurors after they have been selected.  Slip op. ¶31.  It refuses to address the right to be present “at trial” under sub. (b) because Alexander didn’t brief that specific subsection pf 971.04(1).  He only relied upon a case that interpreted and applied it. Sigh.  Slip op. ¶31 & ¶47.  The State conceded that the in-chambers discussion with the jurors occurred “at trial” for purposes of § 971.04.  So Crooks would find a statutory right to be present at in-chambers discussions with jurors when those discussions concern the appropriateness of the jurors continuing in their service.  Slip op. ¶58.  So would Abrahamson and Bradley.  The Chief separately dove into the legislative history of sub. c, the “voire of the trial jury” provision, to show that it applies here too.  And Justice Ziegler separately concurred that even if a constitutional or statutory violation had occurred, the error would have been harmless.

Some interesting tidbits:  Crooks, Bradley and Abrahamson agree that defense counsel waived Alexander’s right to be present at the in-chambers discussion and that the record suggests Alexander also “voluntarily absented himself” from the proceedings.  Slip op. ¶46.  If that’s true, goodness gracious, why bother deciding the substantive and constitutional issues at all?  State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997)(courts decide cases on the narrowest grounds and avoid constitutional issues when the case can be disposed of on other grounds).  If waiver occurred, is this case really the best case for tossing out not 1 but 2 SCOW decisions?  In the majority’s rush to overturn Anderson and Burton, they never address the waiver issue.   One more thing: Justice Prosser was in the Anderson majority, but here he joins Gableman in overruling Anderson?  All other justices involved in both decisions remain consistent in their positions.  What’s going on here?  Not stare decisis.  🙂



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