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SCOW to review juror bias issues

State v. Jeffrey P. Lepsch, 2015AP2813-CR, petition for review granted 5/11/16; case activity (including briefs)

Issues (composed by On Point)

Were one or more jurors at Lepsch’s trial objectively or subjectively biased because they did not provide “unequivocal assurances” that they could set aside prior beliefs (about, e.g., the guilt of the defendant and the greater credibility of police) and decide the case solely on the evidence?

Did the prior beliefs of some jurors, and the lack of sufficient inquiry into their ability to set them aside, create an appearance of bias sufficient to deny Lepsch’s due process right to an impartial jury?

Were Lepsch’s rights to be present and to a public trial violated when the prospective jurors were sworn in the jury assembly room, outside the presence of the court and counsel?

Was Lepsch denied due process or the effective assistance of counsel by the trial court’s failure to give him the 7th peremptory strike to which he was entitled and by failing to strike 5 jurors for cause, forcing him to use 5 of his 6 strikes to remove them?

There are a number of intertwined juror bias issues here, but the heart of the matter is the validity of Wisconsin’s tests for determining juror bias. Whether the supreme court changes its juror bias law a little or a lot or not at all, this case will therefore be an important one for all trial practitioners.

The supreme court adopted the categories of “statutory,” “subjective” and “objective” bias in a suite of cases decided in 1999—State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999); State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999); State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999); and State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d 736 (1999). Statutory bias is present if the juror doesn’t meet the qualifications to serve under § 805.08(1). Subjective bias is present if the juror isn’t “sincerely willing to set aside any opinion or prior knowledge that the prospective juror might have,” Mendoza, 227 Wis. 2d at 849. Objective bias is present if the juror has such a direct, personal connection to crucial evidence or a dispositive issue in the case or such an intractably negative attitude toward the justice system that no reasonable person in the juror’s position could be impartial. Erickson, 227 Wis. 2d at 775-76.

The juror bias issue arose in this high-profile double-homicide case because, in questionnaires filled out before voir dire, seven of the jurors eventually seated had said law enforcement witnesses are more credible than non-law enforcement witnesses; four had said they had made up their mind about Lepsch’s guilt; and one disagreed with the presumption of innocence. They were all “rehabilitated” during voir dire, though their statements foreswearing the previous expressions of bias were, in Lepsch’s view, not sufficiently strong or “unequivocal.” The problem is that in Wisconsin “a prospective juror need not respond to voir dire questions with unequivocal declarations of impartiality. Indeed, we … fully expect a juror’s honest answers at times to be less than unequivocal,” Erickson, 227 Wis. 2d at 776.

Lepsch says this standard is inconsistent with Patton v. Yount, 467 U.S. 1025 (1984), and federal cases applying it, e.g., and most notably, Oswald v. Bertrand, 249 F. Supp. 2d 1078 (E.D. Wis. 2003), aff’d, 374 F.3d 475 (7th Cir. 2004). Lepsch also contends the trial court didn’t do a sufficient inquiry to ferret out the jurors’ ability to be impartial in light of their expressions of bias. Those expressions of bias reveal a high probability of bias, and as the 7th Circuit’s decision in Oswald put it, the adequacy of the judge’s inquiry is a function of the probability of bias: “the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled.” 374 F.3d at 480-81. After all, “a jury that decides guilt before the trial begins is little better than a lynch mob.” Id. at 483. We’ll see if the court believes its current standards for juror bias are sufficient to prevent the empaneling of such a mob.

The other potentially significant issue involves the propriety of swearing of the panel outside the presence of the defendant and out of the public eye. The court of appeals held Lepsch forfeited this claim under the recent case of State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207, because he didn’t object at voir dire when the jurors were not sworn in his presence, and his claim that trial counsel was ineffective for not objecting foundered due to a lack of prejudice. The supreme court presumably took the case to address the question despite the forfeiture. In the meantime, if your county (like the one here, which is LaCrosse) swears the panel before it gets to the courtroom for voir dire, object!

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