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Voir dire panel “untainted” despite deputy/juror’s assertion that State had enough evidence to convict defendant

State v. Dawn M. Hackel, 2014AP1765-CR, District 4, 3/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)

During voir dire at an OWI trial, a sheriff’s deputy/prospective juror said he had arrested drunk drivers, testified in drunk driving cases, and said that based on his professional training and occupation the State had sufficient evince to convict Hackel, and, therefore, she was guilty as charged. The court of appeals held this in no way tainted the jury panel heading into trial.

Tainted jury panel. The court of appeals turned a cold shoulder to what transpired at voir dire. It held that the deputy’s comments did not amount impermissible vouching testimony from an expert because he merely gave his opinion in response to questions put to the voir dire panel. (As if that matters. There was no other way he could have advanced it.) Furthermore, the court reasoned, if some panel members were prejudiced, well that was cured by follow up questions asking the jurors if they could decide the case based only on the evidence presented and by a general instruction to “keep an open mind” during trial. Slip op. ¶13.  The court of appeals was similarly untroubled by defense counsel’s follow-up questions regarding the State’s “rock solid” evidence against Hackel. “Hackle’s contention that these questions somehow strengthen the credibility of the State’s case is absurd,” it held. Slip op. ¶16.

Ineffective assistance of counsel. As for Hackel’s argument that her counsel was ineffective for failing to strike the entire jury panel after the deputy gave his opinion and defense counsel appeared to endorse it, the court of appeals scoffed:

This argument fails on its own weight.  Hackle cannot honestly expect counsel to make such a motion after she made her challenged comments.  Effectively, counsel would be asking the court to strike the panel because of her own purported ineffectiveness.  As for Whitehouse’s answers, we have already concluded that there is no reason to believe that any member of the voir dire panel was prejudice in some unspecific way by his answers.  Because Hackel has failed to establish the prejudice prong, we need not address whether counsel was deficient.  See id. Slip op. ¶18

Discretionary reversal. No relief on this ground either. According to the court, Hackel could win on this point only if either her “tainted jury” or “ineffective assistance of counsel” arguments succeeded. Slip op. ¶19.

It’s hard to understand the court of appeals’ indifference to the “tainted jury” argument. As other courts (and On Point) have noted previously here, you can’t throw a skunk into the jury box and then instruct the jury not to smell it. You can’t un-ring a bell. Go ahead and try it. It doesn’t work. Anyway, at this early stage, how hard would it be to just call a new panel? Unfortunately, the court of appeals’ “discretionary reversal” reasoning echoes Justice Ziegler’s dissenting remarks (joined by Justice Gableman) in State v. Jenkins decided last term. Click here. Let’s hope this idea that a defendant cannot get a discretionary reversal in a case where he fails to prove IAC remains the minority view.

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