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SCOW will review trial judge’s ex parte removal of juror during trial

State v. Robert Daris Spencer, 2018AP942-CR, petition for review, and petition for cross review, of an unpublished court of appeals decision, both granted 8/13/21; case activity (including briefs)

Issues presented (composed by On Point from the PFR and cross PFR)

  1.  Was the circuit court’s ex parte voir dire and removal of a juror during trial a structural error requiring automatic reversal, or is it subject to harmless error analysis?
  2. Did the circuit court improperly consider the race of the defendant and the witnesses in deciding to dismiss juror?
  3. Is a defendant entitled to a postconviction hearing on an ineffective assistance of counsel claim when the record conclusively shows the claim should be denied?

On the last day of Spencer’s trial, the only Black juror told the court she was feeling ill. The judge questioned her alone in chambers, without counsel or Spencer present. Based on that questioning the judge dismissed the juror put on the record an explanation of its ex parte conversation and a rationale for its decision. Spencer’s lawyer objected and moved for mistrial, to no avail.

Spencer appealed, arguing the trial judge’s ex parte questioning and dismissal denied him due process and equal protection and was an erroneous exercise of discretion. A majority of the court of appeals held these arguments were forfeited. The majority read trial counsel’s argument to be a reprise of the one she made when the jury was impaneled, which was based on Swain v. Alabama, 380 U.S. 202 (1965), overruled in part by Batson v. Kentucky, 476 U.S. 79 (1986), and challenged the method for creating the jury pool underrepresented minorities. Spencer also argued the ex parte voir dire deprived him of the assistance of counsel at a critical stage of the proceeding, but the majority found that any such error was harmless. A dissenting judge disagreed the claims were forfeited, as all of Spencer’s claims go to the same issue: the fairness of the jury. The dissent also concluded the trial court’s actions violated due process.

Despite the state’s continued insistence on forfeiture in its response to Spencer’s petition, it appears the supreme court is interested in the substantive issues here despite forfeiture, as it otherwise makes little sense to grant review and then affirm on forfeiture grounds. Thus, the case is chock full of issues. In addition to the question of the propriety of the trial court’s method, especially its exclusion of counsel from its meeting with the juror, is the issue of race.

Spencer is Black, and the dismissed juror was the only Black person on the jury. The heart of trial and appellate counsel’s challenge is that in justifying its decision, the trial judge improperly took into account the race of the witnesses, most of whom were Black, as if this somehow made up for the dismissal of the sole Black juror. As Spencer aptly notes, at the very least it is not obvious that the race of the witnesses is an appropriate consideration in deciding whether the particular juror should or could have remained on the jury, and it makes one wonder whether the judge would have done something differently if most of the witnesses, or the putatively ill juror, were not Black.

Apart from the trial judge’s consideration of race is its exclusion of defense counsel from the voir dire of the juror. That, says Spencer, violated his Sixth Amendment right to counsel, which is a structural error not subject to harmless error analysis. Assuming the court will reach all or some of these substantive issues, its decision will give some guidance on the proper way and relevant considerations for a trial judge to deal with the possible need to excuse or dismiss a juror during trial.

The third issue involves Spencer’s alternative claim of ineffective assistance regarding an evidentiary issue. The circuit court denied this claim without a Machner hearing, but the court of appeals ordered a hearing based on the allegations in his postconviction motion. The state’s cross-petition invokes the rule that a well-pled motion isn’t by itself enough to merit a hearing if the entire record conclusively establishes the defendant isn’t entitled to relief; asserts that some loose language in State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89, created doubt about the continuing vitality of this rule; and therefore, the supreme court needs to clarify the rule still applies.

It isn’t evident the court of appeals has been ignoring the rule in the three years since Sholar, and indeed the cross-petition offers only a single example that it is—State v. Ruffin, No. 2019AP1046-CR, unpublished slip op. (WI App March 9, 2021). But in that case, like this one, it appears the state just doesn’t like the fact that the court of appeals concluded the record does not conclusively show the defendant isn’t entitled to relief. The state needs a hook to convince the court it is looking for more than mere error correction, and saying that Sholar is causing the sky to fall did the trick.

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