Thursday, April 21, 2011

The Role of the Trial Judge in Jury Selection

By John DiMotto

In his "The Dark Side" blog for the Wisconsin Law Journal, my friend, attorney David Ziemer -who is a News Editor for WLJ, recently wrote about jury service and related some anecdotes about how trial judges approach it. (It was a good blog from the perspective of a trial attorney.) I thought this would be a good time to provide a judicial perspective on jury selection and the role of the judge in the process.

The role of the trial judge in jury selection is different than that of the attorneys for the parties. The role of the attorneys in jury selection is to impanel a jury that the attorneys believes will be favorable to the his/her case. The role of the trial judge, "who should have no dog in the race" is to ensure that a fair and impartial jury is impanelled. A "fair and impartial" jury is one which will arrive at its verdict:

1) Based on the facts it finds worthy of belief from all the evidence introduced,

2) By applying the law, the legal principles, provided to the jury by the judge in the instructions,

3) By using its collective common sense and long experiences in life.

In seeking to impanel a jury that will be fair and impartial, the trial judge has great discretion in the control of the voir dire process. The following are principles that guide the conduct of the trial judge.

1) The trial judge can control the form and the number of questions. Latitude in voir dire does not extend to asking questions which mislead, confuse or misinform. In fact, where a juror merely expresses a predetermined opinion that does not disqualify the juror per se. A trial judge should follow up to see if the juror can lay aside the opinion and decided the case based on the facts introduced and the law that applies to the case. If the juror will give that assurance, the juror should not be "struck for cause" -- disqualified. see Hammill v. State, 89 Wis.2d 404(1979).

2) Selection of an impartial jury is conducted under the trial court's supervision. see State v. Van Straten, 140 Wis.2d 306 (Ct. App. 1987).

3) The test for whether a prospective juror should be struck for cause is determined based on whether the juror is biased. If a juror cannot be indifferent, the juror should be excused. see State v. Faucher, 227 Wis.2d 700 (1999).

4) Even the appearance of bias should be avoided. see State v. Louis, 156 Wis.2d 470 (1990).

5) The test for juror bias is whether there is statutory, subjective or objective bias. If it is present and a prospective juror cannot lay it aside, the prospective juror must be excused. see State v. Erickson, 227 Wis.2d 758 (1999).

6) Statutory bias is present where a juror is related by blood or marriage to any party or attorney appearing in the case, as well as those who have a financial interest in the case. These people may not serve under any circumstances. see Faucher, supra.

7) Subjective bias is revealed through words and demeanor of a prospective juror during the voir dire process. This refers to the prospective juror's state of mind. This is usually revealed by demeanor since rarely is there direct proof by the juror explicitly admitting prejudice or inability to set aside prejudice. The trial judge is in a superior position to determine this from the demeanor of the juror. see State v. Jimmie R.R., 232 Wis.2d 138 (Ct. App. 1999).

8) Objective bias if present if a reasonable person in the prospective juror's position objectively could not judge the case in a fair and impartial manner. Here the trial judge considers the facts in the case and the facts and circumstances surrounding the voir dire. There must be a connection between the prospective juror's bias and the issues or theory of the case. These attitudes must be strongly held but are not expected to be unequivocal. see State v. T. Oswald, 232 Wis.2d 62 (Ct. App. 1999). When a prospective juror's relationship to the case is such that no reasonable person in the same position could possibly be impartial even though the juror desires to set aside any bias. see State v. Czarnecki, 237 Wis.2d 794 (Ct. App. 2000).

9) Jurors are presumed to be impartial and the challenger to that presumption bears the burden of proving bias. see State v. Gilliam, 238 Wis.2d 1 (Ct. App. 2000).

10) No "magical words" need be spoken by prospective jurors and they need not affirmatively state he/she can definitely set bias aside. Prospective jurors need not respond to voir dire questions with unequivocal declarations of impartiality and they need not unambiguously state the ability to set aside a bias. The trial judge should not focus on isolated words but on the entire record. see State v. J. Oswald, 232 Wis.2d 103 (Ct. App. 1999).

11) The decision as to the subjective sincerity of a prospective juror in expressing his/her final view of fairness is within the discretion of the trial judge. see State v. Sarinske, 91 Wis.2d 14 (1979).

12) In making the determination as to whether a prospective juror should be struck for cause, trial judges are guided by the following words of the Wisconsin Supreme Court in State v. Lindell, 245 Wis.2d 689 2001):

"We take this opportunity to restate that we caution and encourage circuit courts to strike prospective jurors for cause when the circuit court reasonably suspects that juror bias exists. ... This is a decades-old standard, that encourages circuit courts 'to err on the side of striking prospective juror who appear to be biased, even if the appellate court would not reverse their determinations of impartiality. Such action will avoid the appearance of bias, and may save judicial time and resources in the long run. ... It is the appearance of partiality that gives us great pause. Jurors must not only be fair and impartial; they must also not have a relationship to either side which leaves doubt about their impartiality."

13) Where a juror believes that he/she cannot decide the case fairly on the evidence, he/she should be removed for cause. see State v. Zurfluh, 134 Wis.2d 436 (Ct. App. 1986).

What these principles convey to every trial judge is that his/her role in the voir dire process is critical and must not to be taken for granted. The trial judge must use his/her eyes and ears in the evaluation of every prospective juror to ensure that prospective jurors will be fair. In this endeavor:

1) A trial judge should not excuse "for cause" a prospective juror merely because he/she does not want to serve.

2) A trial judge should not excuse "for cause" a juror who merely says he/she cannot be fair without exploring the "why" to that statement.

3) A trial judge should excuse "for cause" a prospective juror who carries a "real" bias that can not be laid aside.

4) A trial judge should excuse "for cause" a prospective juror who because of legitimate circumstances in his/her life are such that the juror cannot give his/her time and attention to the case.

When a trial judge has concerns about the possibility of bias on the part of a prospective juror, the trial judge should do a careful, thoughtful, and thorough individual voir dire with that prospective juror making it clear to the juror that the judge is not looking for a particular answer but rather wants, needs and expects candid and honest answers to the judge's questions. A trial judge should never badger a prospective juror to seek a particular answer, however a trial judge should never let a juror manipulate the process to get out of jury service. If a trial judge believes that a prospective juror is being less than candid in order to avoid service the judge must "challenge" that juror for the truth.

When a trial judge is confronted with a prospective juror who does not present with a statutory, subjective or objective bias but is seeking to be excused for some other reason, a trial judge has the responsibility to follow up as well. For example:

1) If a prospective juror's service will cause a very real and significant financial hardship, that should be given serious consideration in these very difficult economic times.

2) If a prospective juror has a parent or spouse or child who is seriously ill and service will interfere with the prospective juror's obligation to that individual, that should be given serious consideration.

3) However, mere inconvenience should never be countenanced.

Jury service should not be such that it can easily be avoided. In our country, we are blessed to have many "rights" that are the envy of people throughout the world. However, along with our "rights" we have "responsibilities." Jury service is one of those responsibilities. Only is there is a bias that cannot be set aside or life circumstances so important that they trump jury service should prospective jurors be excused. It is the responsibility of the trial judge to oversee the voir dire process and maintain the integrity of the jury system.

Wednesday, April 13, 2011

John Doe Proceedings in Wisconsin

By John DiMotto

It was announced at a recent press conference conducted by officials of the Milwaukee County district Attorneys Office and the Government Accountability Board that a prominent Wisconsin Railroad CEO was being charged with campaign law violations for making illegal campaign contributions based on information gathered during a John Doe proceeding. While most people have heard or read about various John Doe proceedings, a full understanding of what they entail is a mystery to many. I thought this would be a good time to examine the law regarding John Doe proceedings in Wisconsin.

The John Doe proceeding in Wisconsin is outlined in 968.26 of the Wisconsin Statutes. Its purposes is to convene a proceeding before a judge to determine whether a crime has been committed in the court's jurisdiction.

Request for a John Doe Proceeding

The request to convene a John Doe proceeding ordinarily comes from a district attorney (DA) although there are times when the complaining party is a citizen. If the complaining party is a DA, the judge SHALL convene a hearing.

If the complaining party is not a DA, the judge shall refer it to the DA for review unless the complaint relates to the conduct of the DA in which case the complaint is referred to a special prosecutor (SP). However, the word "shall" in the context of this statute is not mandatory in all instances. The matter shall be referred to the DA only "if the four corners of the complaint provide a sufficient factual basis to establish an objective reason to believe that a crime has been committed in the judge's jurisdiction." see Naseer v. Miller, 329 Wis.2d 724 (Ct. App. 2010). This is because the intended purpose of a John Doe proceeding is to serve "both as an inquest into the discovery of crime and as a screen to prevent 'reckless and ill-advised' prosecutions." see State ex rel Reimann v. Circuit Court for Dane County, 214 Wis.2d 605 (1997).

When a DA is making the request, it is usually because the efforts of law enforcement to investigate a crime are being thwarted and their investigation is being impeded. When the request is being made by a citizen, it is usually because the citizen feels that law enforcement and the DA are not being responsive to his/her complaints.

If the judge convenes a John Doe proceeding, the judge shall subpoena witnesses requested by the DA or SP and shall examine any witnesses who are called by the DA or SP, although ordinarily it is the DA or SP who conducts the examinations of witnesses given their knowledge of the entire matter. Requests to grant immunity to compel testimony can be made, by the DA or SP and if granted, witnesses must testify or be subject to contempt.

The John Doe proceeding may be secret or open.

Any witness called to testify at a John Doe proceeding may be represented by counsel at the proceeding although the attorney may not examine any witnesses or argue before the judge. The role of the attorney is to advise his/her client at the proceeding.

The proceedings are recorded. If the proceeding is secret, the testimony taken shall not be open to inspection by anyone except the DA or SP unless it is used at a preliminary hearing or trial of the accused and then only to the extent that it is so used.

At the conclusion of the John Doe proceeding, the judge determines if there is prosecutive merit to warrant the issuance of a criminal complaint and arrest warrant.

DA Request for John Doe

When the request for a John Doe proceeding comes from a DA, the hearing shall be granted and the DA presents the case to the judge. At the conclusion of the proceedings the DA can independently issue a criminal complaint or ask the judge to do so.

Citizen Request for John Doe

In a case where the complainant is a citizen and in the circumstance where the complaint is referred to a DA or SP, the DA/SP has 90 days to issue charges or refuse to issue charges. If the DA/SP refuses to issue charges, all of his/her investigative reports along with a written explanation as to why charges are not being issued must be given to the judge. Additionally, the judge may require law enforcement to provide all of their investigative reports for the judge's review. The judge need not subpoena and examine under oath the citizen complainant or any witnesses that that the citizen complainant may have. Only is a John Doe hearing is convened shall the judge subpoena and examine under oath the complainant and any witnesses that the judge determines to be necessary and appropriate to ascertain whether a crime has been committed and by whom it has been committed.

Under prior law the judge was required under all circumstances to examine the complainant. This is no longer necessary. Under the current John Doe statute, a judge may consider matters extrinsic of the actual petition in determining whether to convene a John Doe hearing. After reviewing all of the information provided, the judge shall convene a hearing if he/she determines it is necessary to determine if a crime has been committed. Under the current law, the judge shall consider the credibility of testimony and information in support of an opposed to the citizen's complaint in making the decision as to whether to convene a John Doe hearing. The judge can weigh the evidence, which is a change from prior John Doe law. Ultimately, it is within the discretion of the judge as to whether he /she shall convene a hearing. The only recourse by a citizen complainant if a judge will not convene a John Doe hearing is to seek a Writ of Mandamus.


The current John Doe statute as set forth above, is the most recent version of the law. It has been amended within the last two years, making changes to citizen based requests to curb abuses. The new law recognizes the need for wide judicial discretion to evaluate a citizen complaint for a John Doe proceeding in order to ensure fairness in the pursuit of justice.

Tuesday, April 5, 2011

Recall of Elected Officials in Wisconsin

By John DiMotto

The political upheaval in Wisconsin, as a result of events in the Wisconsin Legislature over the past two months, has sparked a number of recall elections. While there has been much debate about recalls, there has been little discussion about the law itself. In this blog, I will address both Recall Law and the Recall Process.

Recall Law

Recall law is not unique to Wisconsin. Thirty-eight states have provisions for allowing recall of elected officials. Eleven states allow recall of State, local and federal elected officials. (Wisconsin is one of the eleven.) Seven states only allow recall of State and local elected officials. Twenty states only allow recall of local elected officials. Twelve state have no provisions for recall of elected officials.

Twelve of the states that allow recall of elected officials only do so if certain conditions - "grounds" - are present. However, a majority of the states allow recalls to proceed for no reason at all. Wisconsin is one of the states where grounds are not required.

In Wisconsin, the right of recall is provided for in the Wisconsin Constitution in Article XIII, Section 12. This provision was first enacted in 1926 and amended in April, 1981. It sets forth:

1) The qualified electors of the state, of any congressional, judicial or legislative district or of any county may petition for the recall of any incumbent elective officers after the first year of the term for which the incumbent was elected. (The right of recall has been extended to local elected officials by virtue of Wisconsin Statute section 9.10.)

2) A recall petition must be signed by electors equalling at least 25% of the vote cast for the office of governor at the last preceding election in the area which the elected official represents.

3) If a petition is certified a recall election shall be held on the Tuesday of the 6th week after the petition is filed.

4) The incumbent continues to serve and perform his/her duties until the recall election results are officially declared.

5) Unless the incumbent declines within 10 days after the filing of the petition, the incumbent shall be on the ballot at the recall election without the need to meet any filing requirements. Other candidates must comply with the law for special elections. If more than two people compete for a nonpartisan office, a recall primary shall be held. The two persons receiving the highest number of votes shall be the two candidates in the recall election, EXCEPT that if any candidate receives a majority of the votes, that candidate shall assume office for the remainder of the term and a recall election shall not be held. For any partisan office, a recall primary shall be held for each political party which is by law entitled to a separate ballot and from which more than one candidate competes for the party's nomination in the recall election. The person receiving the highest number of votes in the recall primary for each political party shall be that party's candidate in the recall election. Independent candidates and candidates representing political parties not entitled by law to a separate ballot shall be shown on the ballot for the recall elections only.

6) When a recall primary is required, it shall be held on the Tuesday of the 6th week after the filing of the petition with the recall election to be held on the Tuesday of the 4th week after the recall primary.

7) The person receiving the highest number of votes in the recall election shall be elected for the remainder of the term.

8) After one such petition and recall election, no further recall petition shall be filed against the same officer during the term for which he/she was elected.

9) Laws may be enacted to facilitate the operation of Art. XIII, Sec. 12 but no law shall be enacted to hamper, restrict or impair the right of recall. (The Wisconsin Legislature enacted 9.10 to facilitate this constitutional provision.)

Recall Process

Section 9.10 implements Article XIII, Section 12 by providing the process/framework.

1) A petition for recall of a state or federal elected official does not require any reason.

2) A petition for recall of a local elected official must contain a statement of the reason for the recall which is related to the official responsibilities of the official for whom removal is sought. see 9.10(2)(b).

3) A petition may only be filed after the petitioner has first filed a registration statement with the filing officer.

4) A petition may not be circulated until the registration is completed.

5) A petition must be filed on or before 5:00 pm on the 60th day commencing after registration.

6) Requirements for signatures to be valid and counted are set forth in 9.10(2)(e). (i.e. properly signed, dated, proper residency, qualifed elector, certification of circulator completed, etc)

7) Any challenge to the validity of signatures shall be presented by affidavit or other supporting evidence demonstrating a failure to comply with statutory requirements.

8) Burden of proof is on a challenger to the petition and signatures.

9) Time limit for challenger filing written challenges to petition -- within 10 days of filing. Time limit for petitioner to file a rebuttal -- within 5 days after challenge filed. Time limit for challenger to file a reply -- within 2 days after rebuttal filed. Certification of petition by filing officer -- within 14 days after filing of a reply. Determination on sufficiency of petition -- within 31 days after certification. Time limit to file a petition for writ of mandamus or prohibition with the circuit court by petitioner or elected official for the court to decide the sufficiency of the petition -- within 7 days of the filing officer's determination on sufficiency of petition.

10) There shall be separate elections for each official subject to recall.

The Government Accountability Board has information on its website with respect to the recall process.

While the right of recall is recognized in the Wisconsin Constitution, there is a debate over its use. There are many people who believe that recalls should be the exception and not the rule. They believe that mere disagreement over the decisions made by an elected official should not be the basis for a recall, rather it should be reserved for malfeasance, misconduct, failure to perform duties or particularly egregious behavior. They believe that absent such circumstances that the elected official should have the right to finish out his/her term and be accountable at the next election cycle. On the other hand, there are many people who believe that if they do not have confidence in an elected official, or if an elected official has "lied" to them or disappointed them or if they do not believe that an elected official is serving their interest or if they just don't like an elected official or even if they have no reason at all that they should have the ability to pursue recall of any state or federal elected official.

Whether you agree or disagree with the exercise of the right of recall, it is a recognized right of citizenship; a right of expression guaranteed by the Wisconsin Constitution.