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Dismissal of Juror After Trial Commences

State v. Nikolas S. Czysz, 2010AP2804-CR, District 2/4, 12/1/11

court of appeals decision (not recommended for publication); for Czysz: Dianne M. Erickson; case activity

The trial court properly exercised its discretion under State v. Gonzalez, 2008 WI App 142, 314 Wis. 2d 129, 758 N.W.2d 153, in dismissing a juror on the fourth day of trial after the learning that two of the juror’s sons had been prosecuted by another prosecutor from the same district attorney’s office prosecuting Czysz. During voir dire, the juror hadn’t responded when the panel was asked for contact with the DA’s office “in any way whatsoever” – she explained this silence by saying she herself “had nothing to do with the DA.” Though the trial court dismissed her, it recognized that she “probably wouldn’t have been stricken for cause.”

Juror-bias taxonomy is described in State v. Faucher, 227 Wis. 2d 700, ¶25, 596 N.W.2d 770 (1999): statutory, subjective, and objective. Lack of juror candor may establish bias, either subjective or objective, 227 Wis. 2d 700 ¶¶44-49, and Czysz argues the trial court erred in failing to apply lack-of-candor analysis. the court of appeals rejects the argument, because that analysis applies where the juror is biased and not, as Czysz maintains, where the juror in question is not biased:

¶16      Circuit courts have a duty to ensure that the impaneled jury is free of bias or prejudice.  Gonzalez, 314 Wis. 2d 129, ¶21.  “Lack of juror candor” cases involve the concern that a biased juror was impaneled, which implicates a defendant’s constitutional right to an impartial jury. See U.S. Const. amend. VI; Wis. Const., art. I, § 7.[2]  Here, Czysz is concerned that a juror who was not biased did not sit on the jury.  However, a defendant, although entitled to fair and impartial jurors, is not entitled to “jurors who he hopes will be favorable towards his position.”  State v. Mendoza, 227 Wis. 2d 838, 863, 596 N.W.2d 736 (1999) (citation omitted).  “A defendant’s rights go to those who serve, not to those who are excused.”  Id.  Accordingly, we reject Czysz’s contention that the “lack of juror candor” cases, as discussed by Faucher, govern the present case.

As noted, dismissal was proper under Gonzalez (which doesn’t require a showing of bias to support mid-trial dismissal of a juror):

¶21      Czysz argues that Gonzalez differs from the present case because in Gonzalez the court expressly stated that it was dismissing the juror “for cause.”  Id., ¶13.  Here, Czysz points out, the circuit court stated that the juror “probably wouldn’t have been stricken for cause” because the juror told the court that she thought her sons “deserved to be punished.”  However, when the circuit court statements from each case are read in context, it is evident that in both cases the circuit court was concerned about the possibility that bias might occur.  Although the circuit court inGonzalez stated it dismissed the juror “for cause,” the court’s explanation for dismissing the juror was that it was “a precautionary measure, because of the possibility of [the juror] being unfair to one side or the other and the possibility that it would cause a mistrial when [the juror] removed herself in the course of deliberations ….”  Id.  Similarly, in this case the circuit court dismissed the juror as a precautionary measure because it was concerned that, despite the juror’s responses to the court’s questions, her sons’ prosecution might affect her ability to be an impartial juror.  The circuit court in this case, as in Gonzalez, did not need to determine that there was one of the specific types of bias identified in Faucher that constitutes “cause.”  See id., ¶12.

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