On Point

State v. Scot A. Czarnecki, 2000 WI App 155, 237 Wis.2d 794, 615 N.W.2d 672
For Czarnecki: Patrick M. Donnelly, SPD, Madison Appellate

Issue: Whether the trial court should have granted the defense motion to remove a prospective juror who acknowledged believing that police officers would be more credible than other witnesses.

Holding: Juror bias is reviewed with deference to the trial court’s resolution. Because police credibility was never at issue, the juror wasn’t objectively biased. ¶22. As to subjective bias, the juror made conflicting statements and the finding of the trial court, which was in a better position to make an assessment of the juror’s sincerity, wasn’t clearly erroneous. ¶23.

State v. Nathaniel A. Lindell, 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500, affirmed on other grounds, State v. Nathaniel A. Lindell, 2001 WI 108
For Lindell: Russell L. Hanson; Timothy J. Gaskell

Issue: Whether the prospective juror’s allowing, “I think I could” make a fair determination, established subjective bias.

Holding: The trial court’s ruling of no subjective bias isn’t clearly erroneous. 2000 WI App 180 ¶12.

Contrast, U.S. v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000) (juror’s mere assertion would “try” to be fair insufficient to dispel concerns of bias).

State v. Marquis O. Gilliam, 2000 WI App 152, 238 Wis.2d 1, 615 N.W.2d 660
For Gilliam: Robert B. Rondini

Issue: Whether the trial court’s denial of a motion to remove a juror based on subjective bias was clearly erroneous.

Holding: The issue of a juror’s subjective bias is reviewed deferentially to the trial court’s resolution. Though this case is different from prior cases — here, “whether the juror has expressed a prejudice or predilection in the first instance” — “on this issue as well, the circuit court has a better ability than [the appellate] court to assess the juror’s response.” ¶12. In part because trial counsel’s questions to the juror at issue are seen as ambiguous and confusing, the trial court’s finding of no bias is sustained: “In order to establish bias, the questions to the jurors must be precise, and ambiguities must be clarified with follow-up questions. That did not happen with respect to Hagen.” ¶14.

State v. Jimmie R.R., 2000 WI App 5, 232 Wis.2d 138, 606 N.W.2d 196
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue: Whether the trial court erred in refusing to strike for cause a potential juror who was equivocal on his ability to be fair.

Holding: The trial court did not err in finding no subjective bias.

 When asked if he could listen to the evidence and apply the law, the juror said, “I think I could.” Despite his apparent “hesitancy about his ability to serve as a juror in light of his wife’s past experience as a sexual assault victim,” the court of appeals defers to the trial court’s finding of no subjective bias. ¶¶27-28. Of further note:

¶30. We make a final observation regarding this matter based on the steady stream of juror selection cases that come before us. Because lawyers may ask leading questions on voir dire and because they are also skilled in obtaining desired answers, the responses of a prospective juror to such questions are often contradictory, depending on which party is asking the questions. Thus, on appeal, both parties are usually able to point to voir dire answers that support their competing positions regarding the challenged juror. Given this situation, it is all the more appropriate for us to defer to the trial court’s better position to assess the prospective juror’s credibility and honesty.

State v. Theodore Oswald, 2000 WI App 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling

Issue: Whether prospective jurors’ expressions of predetermined guilt established either objective or subjective bias.

Holding: Applying a mixed standard of review, the court discerns no bias, in that the strength of these opinions changed during voir dire and, more importantly, because the defense conceded factual guilt.

Issue: Whether the trial court erred in refusing to hold a hearing on juror misconduct when presented with information that at least one prospective juror was discussing the defendant’s guilt during voir dire.

Holding: Given that the juror indisputably thought the defendant guilty, no hearing was necessary.

During voir dire, it became apparent that at least several jurors were discussing Oswald’s guilt. The trial court denied a defense request to inquire into whether any of the jurors already qualified to serve had been tainted by these discussions. On postconviction motion, Oswald presented one prospective juror (not ultimately seated) who had heard three others, including one who was seated, express opinions that Oswald was guilty and the trial would be a waste of time. ¶¶39-40. This was insufficient, the court of appeals holds, to establish juror misconduct. The postconviction testimony was apparently insignificant because the seated juror had already admitted he was biased and, therefore, his “admissions during voir dire were consistent with the alleged waiting room conversations.” (But this is a bit of a non-sequitur: he also told the court that he would set aside his opinion, ¶46, and the postconviction testimony shows that he was less than candid in this respect.

NOTE: This case was reversed on habeas review, Theodore W. Oswald v. Bertrand, 7th Cir. No. 02-2092, 6/29/04.

State v. George W. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48
For Hindsley: James B. Connell

Issue: Whether a deaf suspect, fluent in ASL but with limited proficiency in English, validly waived his Miranda rights, when those rights were explained to him in English-based (“transliteration”) signing.

Holding: When the suspect is advised of Miranda rights in a language other than English (including sign language for a deaf suspect such as Hindsley), the state must produce evidence that the language was one the suspect “was proficient enough to understand the concepts that are involved in Miranda warnings.” ¶¶31-34, citing State v. Santiago, 206 Wis. 2d 3, 556 N.W.2d 687 (1996). The trial court’s findings that Hindsley used ASL and did not understand the particular form of signing (English-based) used to convey the warnings; and that he therefore did not understand the warnings are not clearly erroneous.

State v. George W. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48
For Hindsley: James B. Connell

Issue: Whether a good-faith exception to Miranda should be recognized.

Holding: The court of appeals doesn’t have authority to articulate a good-faith exception to Miranda: “(It) is not the proper role of this court to create an exception to, or modify, binding precedent of the Wisconsin Supreme Court or the United States Supreme Court,” ¶36.