State v. Jeffrey P. Lepsch

2017 WI 27

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2813-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Jeffrey P. Lepsch,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: March 31, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 9, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: La Crosse
JUDGE: Ramona A. Gonzalez

JUSTICES:
CONCURRED: ABRAHAMSON, J., joined by BRADLEY, A. W., J.
(except for the first sentence of ¶90) concur
(Opinion filed).
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there was a brief
by Steven W. Zaleski, and Zaleski Law Firm, Madison, and oral
argument by Steven W. Zaleski.

For the plaintiff-respondent the cause was argued by Sara
Lynn Shaeffer, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
 2017 WI 27
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2813-CR
(L.C. No. 2012CF691)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v. MAR 31, 2017

Jeffrey P. Lepsch, Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals, State v. Lepsch,

No. 2014AP2813-CR, unpublished slip op. (Wis. Ct. App. Nov. 19,
2015) (per curiam), which affirmed the La Crosse County circuit

court's1 judgment of conviction of defendant Jeffrey Lepsch

("Lepsch") and order denying Lepsch's motion for postconviction

relief.

1
The Honorable Ramona A. Gonzalez presided.
 No. 2014AP2813-CR

¶2 A jury found Lepsch guilty of killing two individuals

during an armed robbery in La Crosse, Wisconsin.2 Lepsch was

sentenced to consecutive life terms in prison. Before this

court, Lepsch argues he is entitled to a new trial due to

alleged errors pertaining to jury selection and the jury Lepsch

received.

¶3 More specifically, Lepsch presents the following

arguments: (1) Lepsch's right to a trial by an impartial jury

was violated because certain of the jurors in his case were

subjectively and objectively biased; (2) Lepsch's right to due

process of law was violated because of circumstances that

created the likelihood or appearance of bias and because of

alleged deficiencies in the circuit court's investigation into

and mitigation of these circumstances; (3) Lepsch's right to be

present at a critical stage of his proceedings, right to a

public trial, and right to a jury properly sworn to be impartial

were violated because the La Crosse County Clerk of Courts

administered the oath to the prospective jurors in Lepsch's case

2
Lepsch was convicted of two counts of first-degree
intentional homicide, contrary to Wis. Stat. § 940.01(1)(a)
(2011-12), one count of armed robbery with use of force,
contrary to Wis. Stat. § 943.32(2) (2011-12), and one count of
possession of a firearm by a felon, contrary to 941.29(2)(a)
(2011-12). All subsequent references to the Wisconsin Statutes
are to the 2011-12 version unless otherwise indicated.

2
 No. 2014AP2813-CR

outside of Lepsch's presence;3 and (4) Lepsch's right to receive

the proper number of peremptory strikes, to full use of those

strikes, and to have biased jurors removed for cause was

violated by the circuit court. Lepsch explains that "all of the

issues litigated in this appeal have been raised via a claim of

ineffective assistance of counsel."4

¶4 We conclude that each of Lepsch's claims fails, and

that he is not entitled to a new trial. Consequently, we affirm

the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶5 On September 15, 2012, police were dispatched to a

store in La Crosse, WI. The bodies of P.P. and A.P had been

discovered by a family member at the store; each had been shot

in the head. There were also signs of a robbery.

¶6 On October 10, 2012, Lepsch was charged with two

counts of first-degree intentional homicide, contrary to Wis.

Stat. § 940.01(1)(a). The following day, an amended complaint

was filed additionally charging Lepsch with armed robbery with
use of force, contrary to Wis. Stat. § 943.32(1)(a) and (2), and

3
As will be explained, this oath should not be confused
with the oath administered to the jury Lepsch ultimately
received prior to the commencement of his trial. That is,
Lepsch is challenging the administration of the oath to the
prospective jurors prior to questioning of the prospective
jurors by the court, the State, and Lepsch's counsel; he does
not dispute that the jury chosen was thereafter properly sworn
by a clerk in Lepsch's presence in court at the start of his
trial.
4
But see infra n.5.

3
 No. 2014AP2813-CR

possession of a firearm by a felon, contrary to 941.29(2)(a).

On October 25, 2012, at Lepsch's arraignment, Lepsch stood mute

and the circuit court entered pleas of not guilty on his behalf.

A few months later, the case was set for a jury trial.

¶7 Jury selection in this case proceeded as follows.

Prior to the date of jury selection, prospective jurors

completed paper questionnaires asking dozens of questions on

subjects ranging from the jurors' favorite television shows to

the jurors' views on various legal propositions. These

questionnaires required a signature under the following

statement: "I affirm, under penalty of perjury, that I have

given complete and honest answers to all of the questions

above." The parties agreed to excuse about two dozen

prospective jurors at least in part on the basis of the answers

provided. On July 23, 2013, jury selection itself occurred.

Prospective jurors gathered in the "jury assembly room," where

they were sworn by the La Crosse County Clerk of Courts. The

parties seem to agree that neither Lepsch nor his attorneys were
present when the oath was administered.

¶8 Certain prospective jurors were then brought into the

courtroom for individual questioning in the presence of the

court, Lepsch, and his attorneys. A number of prospective

jurors were excused. Next, remaining prospective jurors were

brought into the courtroom as a group and questioned in the

presence of the court, Lepsch, and his attorneys. Finally,

Lepsch and the State were each given six peremptory strikes and
a panel of 15 jurors was selected.
4
 No. 2014AP2813-CR

¶9 From Wednesday, July 24, 2013, to Friday, July 26,

2013, and from Monday, July 29, 2013, to Tuesday, July 30, 2013,

Lepsch was tried before the jury. There is no dispute that this

jury was properly sworn by a clerk in Lepsch's presence in court

at the start of his trial. On July 30, 2013, the jury returned

a verdict of guilty as to all counts charged. On September 3,

2013, the circuit court sentenced Lepsch to two life sentences

without extended supervision for the homicide charges, a 40-year

term of imprisonment for the armed robbery charge, and a 10-year

term of imprisonment for the possession of a firearm by a felon

charge, all to be served consecutively. On September 4, 2013,

the judgment of conviction was entered.

¶10 On November 25, 2013, Lepsch filed a notice of intent

to seek postconviction relief, and on July 15, 2014, Lepsch

filed a postconviction motion for a new trial. In his motion he

challenged the convictions asserting that he received

ineffective assistance of counsel. On September 4, 2014, the

circuit court held a Machner hearing on Lepsch's motion. See
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.

1979). On November 14, 2014, the circuit court denied Lepsch's

motion.

¶11 On December 2, 2014, Lepsch filed a notice of appeal.

On November 19, 2015, the court of appeals affirmed the circuit

court's judgment of conviction and order denying postconviction

relief in an unpublished, per curiam opinion. Lepsch,

unpublished slip op., ¶1.

5
 No. 2014AP2813-CR

¶12 On December 4, 2015, Lepsch filed a petition for

review in this court. On May 11, 2016, this court granted the

petition.

II. STANDARD OF REVIEW

¶13 "A claim of ineffective assistance of counsel is a

mixed question of fact and law." State v. Ortiz-Mondragon, 2015

WI 73, ¶30, 364 Wis. 2d 1, 866 N.W.2d 717 (quoting State v.

Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695). We

review the circuit court's findings of fact under a clearly

erroneous standard, but independently determine the legal

question of whether counsel's assistance was ineffective. Id.

(quoting Carter, 324 Wis. 2d 640, ¶19).

¶14 We "review[] constitutional questions, both state and

federal, de novo." State v. Lagrone, 2016 WI 26, ¶18, 368

Wis. 2d 1, 878 N.W.2d 636 (quoting State v. Schaefer,

2008 WI 25, ¶17, 308 Wis. 2d 279, 746 N.W.2d 457).

¶15 Other applicable standards will be discussed below.

III. ANALYSIS
¶16 Lepsch's appeal focuses on his ineffective assistance

of counsel claim.5 Lepsch possesses state and federal

5
The nature of the arguments Lepsch raises on appeal is
often unclear. Although Lepsch raises numerous constitutional
claims in his brief, it is not until page 48 of that brief that
Lepsch states, "Due to trial counsel's failure to preserve the
issues at trial, all of the issues litigated in this appeal have
been raised via a claim of ineffective assistance of counsel."
Elsewhere in his brief, however, Lepsch appears to discuss
issues outside of the ineffective-assistance framework. "We
cannot serve as both advocate and court," and we will not
develop Lepsch's claims for him. Cemetery Servs., Inc. v.
(continued)
6
 No. 2014AP2813-CR

constitutional rights to the effective assistance of counsel.

U.S. Const. amends. VI, XIV; Wis. Const. art. I, § 7;6 Strickland

Wisconsin Dep't of Regulation & Licensing, 221 Wis. 2d 817, 831,
586 N.W.2d 191 (Ct. App. 1998). Except where otherwise noted——
namely, where Lepsch has developed an independent claim with
sufficient clarity——we do not address claims arising outside of
the ineffective assistance context.
6
The Sixth Amendment to the United States Constitution
provides:

In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his
defence.

U.S. Const. amend. VI. The Fourteenth Amendment to the United
States Constitution provides in part:

All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.

U.S. Const. amend. XIV, § 1. Article I, section 7 of the
Wisconsin Constitution provides:

In all criminal prosecutions the accused shall enjoy
the right to be heard by himself and counsel; to
demand the nature and cause of the accusation against
him; to meet the witnesses face to face; to have
compulsory process to compel the attendance of
(continued)
7
 No. 2014AP2813-CR

v. Washington, 466 U.S. 668, 686 (1984); State v. Starks, 2013

WI 69, ¶54, 349 Wis. 2d 274, 833 N.W.2d 146. "The standard for

determining whether counsel's assistance is effective under the

Wisconsin Constitution is identical to that under the federal

Constitution." State v. Thiel, 2003 WI 111, ¶18 n.7, 264

Wis. 2d 571, 665 N.W.2d 305. "First, the defendant must prove

that counsel's performance was deficient. Second, if counsel's

performance was deficient, the defendant must prove that the

deficiency prejudiced the defense." Carter, 324 Wis. 2d 640,

¶21 (citation omitted). With regard to the first part of this

test, "[c]ounsel's conduct is constitutionally deficient if it

falls below an objective standard of reasonableness." Thiel,

264 Wis. 2d 571, ¶19 (citing Strickland, 466 U.S. at 688). With

regard to the second part of this test, "the defendant must show

that 'there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.'" Id., ¶20
(quoting Strickland, 466 U.S. at 694).

A. Impartial Jury

witnesses in his behalf; and in prosecutions by
indictment, or information, to a speedy public trial
by an impartial jury of the county or district wherein
the offense shall have been committed; which county or
district shall have been previously ascertained by
law.

Wis. Const. art. I, § 7.

8
 No. 2014AP2813-CR

¶17 In Lepsch's first ineffective assistance of counsel

claim, Lepsch argues his attorneys were ineffective in failing

to raise jury bias issues during jury selection. As a result,

he claims nine of the jurors in his case were biased, which

denied him his right to an impartial jury under the Wisconsin

and federal constitutions. Lepsch bases this challenge on

various answers given in response to four questions on the pre-

trial questionnaires completed by the prospective jurors. He

argues that his attorneys were ineffective for "failing to

sufficiently examine and challenge prospective jurors for

cause."

¶18 We now present the four questions at issue. Question

30 of the questionnaire reads as follows: "You will be hearing

testimony from several police officers in this case. Do you

think you would give police officers more credibility, less

credibility or the same amount of credibility as other witnesses

who were not police officers?" The question contained spaces

for the prospective juror to check "more credibility," "less
credibility," or "the same credibility," and asked the

prospective juror to explain his or her answer. Seven of the

twelve jurors who sat on Lepsch's case answered "more

credibility."7

¶19 Question 35 of the questionnaire contained the

following questions, among others: (1) "Have you ever expressed

7
These seven jurors were C.R., N.N., J.A., P.H., L.K.,
D.M., and R.F.

9
 No. 2014AP2813-CR

the opinion that Mr. Lepsch was guilty?"; (2) "Do you have any

feelings at this time that you have made up your mind as to

Mr. Lepsch's guilt?"; and (3) "IF YES, would you have any

difficulty putting these feelings out of your mind if you were

chosen to be a juror?". Each question was followed by spaces

for the prospective juror to check "Yes" or "No." Four of the

twelve jurors on Lepsch's jury answered that they had expressed

the opinion that Mr. Lepsch was guilty.8 Three of these same

four jurors answered that they "ha[d] . . . feelings" that they

had made up their mind as to Lepsch's guilt.9 Each of these

three then answered that they would not have any difficulty

putting the feelings out of their mind if they were chosen to be

a juror.

¶20 Question 32 asked, "Do you have any problem with the

legal proposition that a defendant must be presumed innocent

unless and until the prosecution can prove he or she is guilty?"

And Question 34 asked a related question: "Do you think if the

state goes to the trouble of bringing someone to trial, the
person is probably guilty?" Both questions left spaces for the

prospective juror to check "Yes" or "No," and both questions

asked for the prospective juror to explain his or her answer.

One juror answered "No" to Question 32 (regarding the

presumption of innocence) but then explained his answer as

8
These four jurors were J.T., J.A., M.F., and L.K.
9
These three jurors were J.T., J.A., and M.F.

10
 No. 2014AP2813-CR

follows: "In general, no. But I do not believe that this should

be the case 100% of the time. I believe that there are cases in

which there is immediate & overwhelming evidence (i.e. physical

evidence, audio/video evidence, confessions, etc.) should be

presumed guilty until trial [sic]." The same juror answered

Question 34 (relating to whether a person brought to trial is

probably guilty) as follows: "Probably? Yes. Definitely? Not

necessarily. I would hope that the courts would not bring

someone in just so they have someone to try. I would hope there

would at least be a fair amount of evidence or cause before

bringing someone in."10

¶21 Before addressing the deficiency and prejudice prongs

of Lepsch's ineffective assistance of counsel claim, we set

forth the law governing juror bias. "The United States

Constitution and Wisconsin's Constitution guarantee an accused

an impartial jury." State v. Mendoza, 227 Wis. 2d 838, 847, 596

N.W.2d 736 (1999) (citing U.S. Const. amends. VI and XIV; Wis.

Const., art. I, § 7).11 "To be impartial, a juror must be
indifferent and capable of basing his or her verdict upon the

evidence developed at trial." State v. Faucher, 227

Wis. 2d 700, 715, 596 N.W.2d 770 (1999) (citing Irvin v. Dowd,

366 U.S. 717, 722 (1961)).

10
This juror was C.R.
11
See supra n.6.

11
 No. 2014AP2813-CR

¶22 "Reviewing courts are properly resistant to second-

guessing the trial judge's estimation of a juror's impartiality,

for that judge's appraisal is ordinarily influenced by a host of

factors impossible to capture fully in the record——among them,

the prospective juror's inflection, sincerity, demeanor, candor,

body language, and apprehension of duty." Skilling v. United

States, 561 U.S. 358, 386 (2010). "Prospective jurors are

presumed impartial" and Lepsch "bears the burden of rebutting

this presumption and proving bias." State v. Funk, 2011 WI 62,

¶31, 335 Wis. 2d 369, 799 N.W.2d 421 (quoting State v. Louis,

156 Wis. 2d 470, 478, 457 N.W.2d 484 (1990)). "We have

recognized three types of bias: (1) statutory bias; (2)

subjective bias; and (3) objective bias." State v. Smith, 2006

WI 74, ¶19, 291 Wis. 2d 569, 716 N.W.2d 482 (citing Faucher, 227

Wis. 2d at 716). Lepsch argues that the jurors he challenged

were subjectively and objectively biased.

¶23 Subjective bias refers to "bias that is revealed

through the words and the demeanor of the prospective juror."
Faucher, 227 Wis. 2d at 717. "[T]he circuit court sits in a

superior position to assess the demeanor and disposition of

prospective jurors, and thus, whether they are subjectively

biased." Id. at 718. Accordingly, "we will uphold the circuit

court's factual finding that a prospective juror is or is not

subjectively biased unless it is clearly erroneous." Id.

¶24 The concept of objective bias relates to the question

of "whether [a] reasonable person in the individual prospective
juror's position could be impartial." Id.
12
 No. 2014AP2813-CR

Objective bias . . . is a mixed question of fact and
law. "[A] circuit court's findings regarding the
facts and circumstances surrounding voir dire and the
case will be upheld unless they are clearly erroneous.
Whether those facts fulfill the legal standard of
objective bias is a question of law." Although we do
not defer to a circuit court's decision on a question
of law, where the factual and legal determinations are
intertwined as they are in determining objective bias,
we give weight to the circuit court's legal
conclusion. We have said that we will reverse a
circuit court's determination in regard to objective
bias "only if as a matter of law a reasonable judge
could not have reached such a conclusion."
Funk, 335 Wis. 2d 369, ¶30 (citations omitted) (quoting Faucher,

227 Wis. 2d at 720-21).

¶25 In order to succeed on his ineffective assistance of

counsel claim, Lepsch must prove that his attorneys acted

deficiently during jury selection and that he was prejudiced by

this performance. Our review demonstrates that none of the

jurors who sat on Lepsch's case were biased, either subjectively

or objectively, and that Lepsch was therefore not prejudiced by

the performance of his attorneys, even if the performance was

deficient in some respect (a question we need not decide).

¶26 The circuit court below explained, in denying Lepsch's

postconviction motion:

From the court's position of being able to best
determine juror bias, the court is absolutely
convinced that each juror was able to put any
potential biases out of their minds. The court is
absolutely certain that Lepsch was tried by a fair and
impartial jury who decided the case based solely on
the evidence before them. The court is unequivocally
convinced that the jury agonized over its decision and
gave Lepsch every benefit of the doubt.

13
 No. 2014AP2813-CR

¶27 Lepsch cannot establish ineffective assistance because

he cannot prove either objective or subjective bias. Seven of

Lepsch's jurors stated in the questionnaire that they would give

police officers more credibility than witnesses who were not

police officers.12 Five of these jurors, however, were

specifically questioned on that answer, and the lawyers and/or

the court examined this belief and ensured that the jurors could

decide the case impartially. To take just one example,13 the

court asked R.F. the following with regard to law enforcement

officers:

[T]he question is, once they are sitting in the seat
you're sitting in and they are a witness, can you
judge them, the credibility, what they say based upon
those things that we as human beings use as
intangibles to determine people's credibility and not
just cut them slack because they happen to be law
enforcement?
R.F. responded, "Yes, Your Honor." The court then confirmed,

"So you can -- you can look at them as you would any other

witness?" R.F. responded, "Yes." Given our deference to the

circuit court on these types of questions, we will not displace

12
Lepsch argues that law enforcement testimony was a
central part of the State's case against him. We can assume
that this is true for purposes of this appeal.
13
We do not provide transcript excerpts for the questioning
of each juror. However, questioning regarding the jurors' views
on police credibility and the jurors' answers to the questions
asked were substantially similar for purposes relevant to the
issues in this case.

14
 No. 2014AP2813-CR

the circuit court's conclusion that these jurors were not biased

when they sat on Lepsch's case.

¶28 J.A. and D.M. are the two jurors who were not

specifically questioned on this point. However, other aspects

of the jury selection process provide support for the circuit

court's rejection of Lepsch's claims of bias. Both J.A. and

D.M. checked "No" on their questionnaires next to the question,

"Is there any reason why you could not be impartial in this

case?" And D.M. stated elsewhere on his questionnaire, "I

believe in facts, not people." See, e.g., Griffin v. Bell, 694

F.3d 817, 823-24) (7th Cir. 2012) ("[Juror] Carel, of course,

never said that she could not be fair. At most, she indicated

that her first inclination, if faced with conflicting stories

from a police officer and a fourteen-year-old boy, would 'most

likely' be to believe the officer. . . . In this case, although

[juror] Carel expressed an initial inclination that police

officers are more credible than teenagers, she never expressed

an irrational or unshakeable bias that indicated an inability or
unwillingness to faithfully and impartially apply the law.");

United States v. Ricketts, 146 F.3d 492, 496 (7th Cir. 1998)

("In the abstract, it is certainly not unreasonable for an

ordinary person to say she would generally tend to believe a

prison guard over a prison inmate. But that certainly doesn't

mean that in a given case, after hearing sworn testimony under

oath and considering all the facts and circumstances, that that

same juror would automatically believe a given guard over a

15
 No. 2014AP2813-CR

given inmate. Generalized questions of the sort asked here are a

slim basis upon which to base a challenge for cause.").

¶29 Further, both J.A. and D.M. were present during

questioning of the jurors as a group. Given the general tenor

of voir dire, the prospective jurors could not have "fail[ed] to

recognize that bias in favor of law enforcement officials was

inappropriate." United States v. Lancaster, 96 F.3d 734, 742-43

(4th Cir. 1996) (reaching this conclusion in part because the

court had inquired about "bias in favor of law enforcement

officials resulting from a relationship with a relative or

friend in law enforcement"). The defense informed the

prospective jurors, "[T]here's no wrong answers, and I want you

guys to talk to me. We're after an unbiased jury here, and it's

okay to have biases. We all have them." Topics touched on

during questioning by the defense were whether the police can

make mistakes, whether it is important that law enforcement

follow procedures, whether police "ever let bias get in the way

of what they're looking for," whether "we tend to trust
professionals [including police] a little more than we should

sometimes," and how to determine whether a professional such as

a policeman "has the right training or experience."

¶30 Moreover, earlier in voir dire, the State explained to

the prospective jurors, "both sides want people who are fair,

objective," later adding:

[B]y now you've gotten some pretty good ideas through
the questionnaires and all the questioning of the kind
of things we want to know about people. Is there
anything that anybody hasn't asked and you've just

16
 No. 2014AP2813-CR

been sitting here waiting, why don't they ask me this
because I really shouldn't be on this jury, but
nobody's asked me why? Is there anything that we
haven't asked at this point, anyone who says, I should
not be here; I can't be fair; and we just haven't
asked the right question yet?
There was no response. See Lancaster, 96 F.3d at 743 ("Under

these circumstances, the district court's final voir dire

question——'Ladies and Gentlemen, do you know of any reason, is

there anything at all any of you know of that would make it

difficult for you to sit as an impartial juror in this case?'——
could not have failed to elicit an affirmative response from any

member of the venire harboring a bias in favor of law

enforcement officials." (citation omitted)). Again, given the

standard of review, we are not in a position to disturb the

circuit court's judgment that no bias existed on Lepsch's jury

in this regard. Thus, even assuming Lepsch's attorneys should

have examined this matter further during jury selection in some

way, Lepsch has not proven that he was prejudiced by the

performance.

¶31 Lepsch's claims of bias regarding jurors who said they

had expressed an opinion on Lepsch's guilt or had made up their

mind as to Lepsch's guilt are also unpersuasive. Each of the

three jurors who stated "Yes" on their questionnaires when

asked, "Do you have any feelings at this time that you have made

up your mind as to Mr. Lepsch's guilt?" also stated "No" in

response to the question of whether they would have any

difficulty putting these feelings out of their minds as jurors.
All four who stated they had "ever expressed the opinion that

17
 No. 2014AP2813-CR

Mr. Lepsch was guilty" were individually questioned in some

manner as to whether they could base their decisions on the

evidence; each juror verified that he or she could do so.

Lepsch has not demonstrated that the circuit court's findings

regarding bias should be overturned as to these jurors, and he

has not shown prejudice with respect to his attorneys'

questioning of these jurors.

¶32 Finally, the juror who qualified his agreement with

the presumption of innocence and who agreed that if the State

goes to the trouble of bringing someone to trial, the person is

probably guilty, was informed that he would be instructed about

the presumption of innocence and that he had to "start out with

looking as Mr. Lepsch as he is innocent," that he is "innocent

as he sits here today." The juror was asked if he was "okay

with that principle," and the juror affirmed that he was.

Again, we see no prejudice resulting from the questioning of

this juror.

¶33 Before proceeding further, we note that Lepsch takes
issue with our discussion of the law on juror impartiality,

contending that it is contrary to federal law insofar as it does

not require a "final, unequivocal" swearing by a juror that he

or she can set aside his or her beliefs and opinions and decide

the case solely on the evidence. Lepsch relies predominantly on

Patton v. Yount, 467 U.S. 1025 (1984), citing a passage

explaining that in a "federal habeas corpus case in which the

partiality of an individual juror is placed in issue," the
question before the reviewing court "is plainly one of
18
 No. 2014AP2813-CR

historical fact: did a juror swear that he could set aside any

opinion he might hold and decide the case on the evidence, and

should the juror's protestation of impartiality have been

believed." Yount, 467 U.S. at 1036.

¶34 We disagree with Lepsch that Supreme Court case law14

dictates that a bright-line rule be applied in cases involving a

defendant's claim he did not receive an impartial jury. First,

it is important to consider the context of the single line in

Yount cited by Lepsch. The Supreme Court was rejecting, on

federal habeas review, the view of the court of appeals below it

that "the question whether jurors have opinions that disqualify

them is a mixed question of law and fact" such that "the

presumption of correctness due a state court's factual findings

under" federal habeas review was inapplicable. Id. at 1028-31,

1036. Its focus in that passage was not the definition of the

substantive standard, but instead the notion that application of

the relevant standard was "not one of mixed law and fact" and

that "the statutory presumption of correctness" thus applied to
the trial court's determinations. See id. at 1036-38.

14
Lepsch also cites a number of decisions issued by lower
federal courts. We are not bound by these decisions. See,
e.g., Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶68, 358
Wis. 2d 1, 851 N.W.2d 337 (explaining that the Seventh Circuit's
constitutional analysis was not binding on this court); cf.
Johnson v. Williams, 568 U.S. ___, 133 S. Ct. 1088, 1098 (2013)
("[T]he views of the federal courts of appeals do not bind the
California Supreme Court when it decides a federal
constitutional question, and disagreeing with the lower federal
courts is not the same as ignoring federal law.").

19
 No. 2014AP2813-CR

¶35 And indeed, the Yount Court later restated the

applicable inquiry on habeas review as "whether there is fair

support in the record for the state courts' conclusion that the

jurors here would be impartial," adding,

Jurors . . . cannot be expected invariably to express
themselves carefully or even consistently. Every trial
judge understands this, and under our system it is
that judge who is best situated to determine
competency to serve impartially. The trial judge
properly may choose to believe those statements that
were the most fully articulated or that appeared to
have been least influenced by leading.
Yount, 467 U.S. at 1038-39 (emphasis added). This suggests an

amount of leeway inconsistent with the rigid rule proposed by

Lepsch. See also id. at 1039-40 ("[I]n the case of alternate

juror Pyott, we cannot fault the trial judge for crediting her

earliest testimony, in which she said that she could put her

opinion aside '[i]f [she] had to,' rather than the later

testimony in which defense counsel persuaded her that logically

she would need evidence to discard any opinion she might

have."); id. at 1039 ("We think that the trial judge's decision

to seat [juror] Hrin, despite early ambiguity in his testimony,

was confirmed after he initially denied the challenge. Defense

counsel sought and obtained permission to resume cross-

examination. In response to a question whether [juror] Hrin

could set his opinion aside before entering the jury box or

would need evidence to change his mind, the juror clearly and

forthrightly stated: 'I think I could enter it [the jury box]
with a very open mind. I think I could . . . very easily. To

20
 No. 2014AP2813-CR

say this is a requirement for some of the things you have to do

every day.'").

¶36 Recent Supreme Court case law supports our

understanding of Yount. In Skilling the Supreme Court explained

that "[n]o hard-and-fast formula dictates the necessary depth or

breadth of voir dire," following that statement with a quotation

from one of its earlier cases: "Impartiality is not a technical

conception. It is a state of mind. For the ascertainment of

this mental attitude of appropriate indifference, the

Constitution lays down no particular tests and procedure is not

chained to any ancient and artificial formula." Skilling, 561

U.S. at 386 (emphasis added) (quoting United States v. Wood, 299

U.S. 123, 145-46 (1936)). Finally, Lepsch does not direct us to

any Supreme Court cases explicitly applying his interpretation

of the putative test from Yount. We agree with Lepsch that a

prospective juror must be able to "set aside any opinion he

might hold and decide the case on the evidence." Yount, 467

U.S. at 1036. But, as a general matter, a circuit court need
not use or obtain any magic words in determining whether this

requirement has been met.

¶37 In sum, Lepsch has not provided sufficient reason to

upset the circuit court's determination that none of the jurors

who sat on Lepsch's case were biased, either subjectively or

objectively. Thus, even assuming that Lepsch's counsel

performed deficiently at voir dire, Lepsch has failed to

demonstrate that he was prejudiced by this performance and his
ineffective assistance of counsel claim must be rejected. C.f.,
21
 No. 2014AP2813-CR

e.g., Peterson v. State, 154 So.3d 275, 282 (Fla. 2014) (per

curiam) ("Peterson cannot demonstrate prejudice because no

biased juror sat on his jury."); State v. Erickson, 227

Wis. 2d 758, 774, 596 N.W.2d 749 (1999) ("more than rank

speculation" is needed "to satisfy the prejudice prong").

¶38 Lepsch also maintains that his right to due process of

law was denied because of "circumstances that create[d] the

'likelihood or the appearance of bias,'" Peters v. Kiff, 407

U.S. 493, 502 (1972) (plurality opinion), and because the

circuit court "fail[ed] to conduct a sufficient inquiry

regarding such circumstances." Lepsch's claim is stated in

broad terms and without adequate legal development, and we

reject it. As the circuit court explained:

The court and both parties were aware that this
case was going to be well-known in the community long
before the trial ever began. For that exact reason,
the court took extra precaution to ensure an impartial
jury, beyond what it would do for most jury trials.
The extensive questionnaire sent out to the jurors was
used to eliminate 24 jurors who exhibited a bias
indicating they could not sit as objective jurors,
before they ever reported for jury duty and by the
agreement of both parties. After those potential
jurors had been eliminated, the potential jurors who
reported were brought into the courtroom one at a
time. They were questioned by the court and both
parties regarding pretrial publicity, their ability to
decide the case only on the evidence presented, and
about any potentially problematic answers on their
questionnaire. More jurors were excused during this
process. Then voir dire began as it normally would.
(Footnote omitted) (citations omitted.) The circuit court's

careful administration of jury selection and the verbal in-
person questioning that took place cured any possibility of the

22
 No. 2014AP2813-CR

"likelihood or the appearance of bias" at least as outlined in

the arguments Lepsch has made.15 We conclude that he was not

denied due process.16

B. Administration of the Oath to the Prospective Jurors

¶39 Next, Lepsch argues that the swearing of prospective

jurors outside of his presence by the La Crosse County Clerk of

Courts violated his rights to be present at all critical stages

of a criminal proceeding, to receive a public trial, and to

receive a trial by an impartial jury. He contends that his

trial attorneys were ineffective in failing "to ensure that the

15
Lepsch makes passing reference to certain answers given
by his alternate jurors. These jurors were excused prior to
deliberation. Lepsch does not explain why these jurors are
relevant to the inquiry, and we will not construct an argument
for him. See Cemetery Servs., Inc., 221 Wis. 2d at 831.
16
It is unclear whether Lepsch means to discuss this claim
in the context of ineffective assistance of counsel. He does not
specifically do so (except for his general statement near the
end of his brief that "all of the issues litigated in this
appeal have been raised via a claim of ineffective assistance of
counsel"). For example, Lepsch states, "[I]rrespective of trial
counsel's performance and obligations, the trial court had an
independent obligation to ensure that the voir dire in the case
was conducted according to 6th Amendment principles . . . ." In
any event, if Lepsch is arguing his lawyers should have objected
and raised the arguments Lepsch raises now, we conclude that,
even assuming deficient performance of some kind, Lepsch was not
prejudiced by it because there was no denial of due process.

23
 No. 2014AP2813-CR

trial court properly administered the oath to the jury venire in

Lepsch's presence."17

¶40 To be clear, Lepsch does not dispute that the jury he

ultimately received was properly sworn by a clerk in Lepsch's

presence in court at the start of his trial. See Wis. Stat.

§ 756.08 (2013-14). Instead, he is asserting alleged

deficiencies with regard to the administration of the oath to

the prospective jurors prior to questioning of the prospective

jurors by the court, the State, and Lepsch's counsel.

¶41 Lepsch's briefing essentially discusses his

constitutional rights at voir dire. We are thus able to

immediately dismiss most of Lepsch's argument because he was, in

fact, present at voir dire. Black's Law Dictionary defines

"voir dire" as "[a] preliminary examination of a prospective

juror by a judge or lawyer to decide whether the prospect is

qualified and suitable to serve on a jury," adding that

"[l]oosely, the term refers to the jury-selection phase of

trial." Voir dire, Black's Law Dictionary 1805 (10th ed. 2014).
We decline to adopt Lepsch's more expansive conception of voir

dire, according to which proceedings involving management of the

17
Other than a cursory reference to his right to be present
"with counsel," Lepsch does not brief a distinct claim that he
was denied the right to counsel when the prospective jurors were
sworn, see, e.g. Iowa v. Tovar, 541 U.S. 77, 80-81 (2004), or
explain how we should analyze such a claim. Instead, he
repeatedly focuses on his own right to be present. Thus, we do
not address the question. See State v. Gracia, 2013 WI 15, ¶28
n.13, 345 Wis. 2d 488, 826 N.W.2d 87 ("[W]e do not usually
address undeveloped arguments.").

24
 No. 2014AP2813-CR

jury pool occurring prior to the entry of the prospective jurors

into the courtroom are given constitutional significance.

Lepsch has not sufficiently explained why voir dire encompasses

the administration of the oath to the prospective jurors any

more than it encompasses the completion of the questionnaires by

the prospective jurors prior to the start of trial.

¶42 Similarly, we reject as meritless Lepsch's contention

that the circuit court, not a clerk, was required by statute to

administer the oath. Lepsch cites Wis. Stat. § 805.08(1) (2013-

14), which states that:

The court shall examine on oath each person who is
called as a juror to discover whether the juror is
related by blood, marriage or adoption to any party or
to any attorney appearing in the case, or has any
financial interest in the case, or has expressed or
formed any opinion, or is aware of any bias or
prejudice in the case.
Wis. Stat. § 805.08(1) (2013-14). In response, the State cites

Wis. Stat. § 756.001(5) (2013-14), which states that "[t]he

clerk of circuit court, if delegated by and under the

supervision of the judge responsible for administering the jury

system, may select and manage juries under policies and rules

established by the judges in that circuit court." Lepsch does

not appear to have much of a reply to this argument. Nor does

Lepsch explain how he was harmed by the putative error, other

than to point to his other constitutional claims. We dismiss

Lepsch's argument regarding the identity of the administrator of

the oath as undeveloped. See State v. Gracia, 2013 WI 15, ¶28

25
 No. 2014AP2813-CR

n.13, 345 Wis. 2d 488, 826 N.W.2d 87 ("[W]e do not usually

address undeveloped arguments.").

¶43 More generally, however, Lepsch's line of argument

relating to the administration of the oath to the prospective

jurors "ignores the[] day-to-day realities of courtroom life and

undermines society's interest in the administration of criminal

justice." Rushen v. Spain, 464 U.S. 114, 119 (1983) (per

curiam). Clerks play a critical role in the daily functioning

of our court systems, and the procedures challenged by Lepsch

doubtlessly occur in courthouses throughout the State. Were we

to accept Lepsch's arguments, we would be casting doubt on the

clerks' capacity to act, as clerks routinely do, in the

summoning and preparing of prospective jurors for the circuit

courts of the State. See, e.g., Wis. Stat. § 756.04(9)(a)

(2013-14) ("Prospective juror lists; number; how

compiled. . . . During each year, the clerk of circuit court

shall provide the court with a sufficient number of names of

prospective jurors to meet the needs of the court."); § 756.05
(2013-14) ("Jury summons, when and how issued. At least 12 days

before the first day on which a jury is required to be present,

to create the jury venire, the clerk of circuit court shall

randomly select a sufficient number of prospective jurors from

the jury array created under s. 756.04 (9) who shall be summoned

to appear before the court at an appropriate time for jury

service."); § 756.06(1) (2013-14) ("Jury selection.

(1) Whenever an issue is to be tried before a jury, the clerk of
circuit court shall randomly select names from the jury venire
26
 No. 2014AP2813-CR

until the desired number is obtained to create the jury

panel."); § 756.07 (2013-14) ("Insufficient jurors. When a

sufficient number of jurors cannot be obtained for a trial from

the jury venire supplied by the clerk of circuit court, the

court may order the sheriff to bring before the court persons in

the vicinity for determination by the court of their

qualification and ability to serve as jurors for the particular

trial."). We decline to do so today.

¶44 Even assuming for the sake of argument that error

existed, Lepsch still cannot succeed. We first address Lepsch's

putative right to be present. Although he does not cite any

applicable constitutional provisions, Lepsch includes a pair of

court of appeals decisions in his brief containing the

proposition that "[t]he right to be present at jury selection

is . . . protected by the Sixth and Fourteenth Amendments of the

United States Constitution and Article I, Section 7 of the

Wisconsin Constitution."18 State v. Harris, 229 Wis. 2d 832,

839, 601 N.W.2d 682 (Ct. App. 1999); see State v. Tulley, 2001

18
See supra n.6.

27
 No. 2014AP2813-CR

WI App 236, ¶6, 248 Wis. 2d 505, 635 N.W.2d 807.19 Additionally,

Wis. Stat. § 971.04(1)(c) (2013-14) states that, subject to

certain exceptions, "the defendant shall be present: . . .

During voir dire of the trial jury." Wis. Stat. § 971.04(1)(c)

(2013-14).

¶45 We observe that the parties at times discuss this

claim in terms of harmless error analysis. And indeed, there is

case law supporting such an approach. See, e.g., Tulley, 248

Wis. 2d 505, ¶7 ("[D]eprivation of . . . the defendant's right

to be present . . . during voir dire is reviewed on appeal for

harmless error." (citing Harris, 229 Wis. 2d at 839-40)); Spain,

464 U.S. at 117-18 n.2 ("right to be present during all critical

stages of the proceedings" is "subject to harmless-error

analysis"). Yet, without much explanation, the parties also

address the claim as one of ineffective assistance of counsel.

¶46 We note that under a harmless error analysis, the

State would bear the burden of establishing that any error was

harmless because it stands to benefit from such an error. See,
e.g., State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278, 816

19
The Supreme Court has explained, "The constitutional
right to presence is rooted to a large extent in the
Confrontation Clause of the Sixth Amendment, but we have
recognized that this right is protected by the Due Process
Clause in some situations where the defendant is not actually
confronting witnesses or evidence against him." United States v.
Gagnon, 470 U.S. 522, 526 (1985) (per curiam) (citation
omitted); see also State v. Alexander, 2013 WI 70, ¶26, 349
Wis. 2d 327, 833 N.W.2d 126. The parties do not address this
important distinction, but we need not apply it to the facts of
this case given our holding.

28
 No. 2014AP2813-CR

N.W.2d 270. Conversely, pursuant to an ineffective assistance

of counsel analysis, the burden would be on Lepsch to establish

ineffective assistance of counsel. See Carter, 324 Wis. 2d 640,

¶21. Nevertheless, whether the claim is addressed under

harmless error review or under the rubric of ineffective

assistance of counsel, Lepsch is not entitled to relief.

¶47 Even if Lepsch had statutory and constitutional rights

to be present at the swearing of the prospective jurors, any

error stemming from Lepsch's absence was harmless. The

La Crosse County Clerk of Courts swore in an affidavit:

I was present with prospective jurors on July 23, 2013
in the matter of State v. Lepsch . . . in the jury
assembly room for jury selection. . . . Prior to
having the jurors transported to the courtroom via
elevator to be individually questioned, I performed
the oath as required with all prospective jurors.
The circuit court below found that the prospective jurors were

indeed given the oath. Further, as discussed, Lepsch has not

demonstrated that his jury was anything less than impartial. We

agree with the State that any error was harmless, and Lepsch

does not give us reason to conclude otherwise. See, e.g., State

v. Deadwiller, 2013 WI 75, ¶41, 350 Wis. 2d 138, 834 N.W.2d 362

(quoting Martin, 343 Wis. 2d 278, ¶45) ("[A]n error is harmless

if the beneficiary of the error proves beyond a reasonable doubt

29
 No. 2014AP2813-CR

that the error complained of did not contribute to the verdict

obtained.").20

¶48 For similar reasons, under an ineffective assistance

of counsel analysis, we conclude that Lepsch's attorneys'

failure to object to Lepsch's absence at the swearing of the

prospective jurors did not prejudice21 Lepsch even if this

failure constituted deficient performance. Thiel, 264

Wis. 2d 571, ¶20 ("In order to demonstrate that counsel's

deficient performance is constitutionally prejudicial, the

defendant must show that 'there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability

20
With regard to this harmless error analysis, on the last
page of his reply brief Lepsch directs the court to his
discussion of "actual prejudice" on page 43 of his brief-in-
chief. However, page 43 of his brief-in-chief discusses "actual
prejudice" with regard to his public trial argument. As will be
shown, these claims of prejudice fail. They likewise do not
establish that reversal is required under a harmless error
analysis. State v. Deadwiller, 2013 WI 75, ¶41, 350
Wis. 2d 138, 834 N.W.2d 362 (quoting State v. Martin, 2012 WI
96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270).
21
Although Lepsch combines all of his constitutional claims
relating to administration of the oath together for purposes of
his argument pertaining to ineffective assistance of counsel and
argues that "the failure to properly administer the oath to
prospective jurors amounted to structural error," he does not
argue that we should presume prejudice with regard to this
specific error. Instead, we understand Lepsch to argue that
structural error arose with regard to violations of his rights
to an impartial jury and to a public trial. We discuss these
claims elsewhere in this opinion.

30
 No. 2014AP2813-CR

is a probability sufficient to undermine confidence in the

outcome.'" (quoting Strickland, 466 U.S. at 694)).22

¶49 Second, we conclude that, contrary to Lepsch's

contention, Lepsch has forfeited his claim that the swearing of

prospective jurors outside of his presence violated his right to

receive a public trial by failing to raise an objection below.

"The Sixth Amendment to the United States Constitution provides

an accused the right to a public trial . . . . The Supreme Court

has determined that the public trial right is applicable to the

states based on its incorporation into the Fourteenth

Amendment."23 State v. Pinno, 2014 WI 74, ¶40, 356 Wis. 2d 106,

850 N.W.2d 207 (citing Presley v. Georgia, 558 U.S. 209, 211-12

(2010) (per curiam)). In Pinno we "decline[d] to allow

defendants who failed to object to the closure of a courtroom to

raise that issue for the first time after the trial is over,"

and concluded that "the Sixth Amendment right to a public trial

may be forfeited when a defendant knows that the judge has

ordered the public to leave the courtroom but does not object."
Pinno, 356 Wis. 2d 106, ¶63.

¶50 Lepsch argues Pinno is inapposite because "[a]t no

time during the proceedings did the trial court inform Lepsch

that the oath to the prospective jurors would be administered in

22
We decline to address, as undeveloped, Lepsch's aside
that the administration of the oath violated SCR ch. 71
("Required Court Reporting"). See Gracia, 345 Wis. 2d 488, ¶28
n.13.
23
See supra n.6.

31
 No. 2014AP2813-CR

the 'jury assembly room' by the clerk rather than the judge in

open court." We agree with the statement of the court of

appeals: "Clearly, Lepsch was aware at the time of the jury voir

dire that the oath had not been administered to the jury venire

in his presence in open court. Lepsch has not provided any

support for his assertion that he was unaware of the manner in

which the oath had been administered to the jury venire at the

time of voir dire." Lepsch, unpublished slip op., ¶7.24

¶51 Lepsch argues Pinno should not be applied because

"Lepsch can show actual prejudice." Lepsch argues that "[t]o

the extent that the administration of the oath was defective,

which Lepsch maintains it was, it precluded him from receiving a

trial by an impartial jury." It is not clear what Lepsch means

by this line of reasoning given that Pinno's discussion of

prejudice occurred in the ineffective assistance of counsel

context, see Pinno, 356 Wis. 2d 106, ¶¶81-91, and Lepsch

seemingly makes this argument independent of any ineffective

assistance of counsel claim.
¶52 In any event, the argument cannot succeed because the

manner of the administration of the oath did not "preclude[]

[Lepsch] from receiving a trial by an impartial jury." Lepsch

states that "[i]f a juror is not sworn or not sworn properly,

then that juror cannot be deemed to be an 'impartial' juror for

24
In fact, at least before this court, Lepsch does not
appear to specifically assert that he was unaware of the manner
in which the oath had been administered——he simply states he
should have been provided notice.

32
 No. 2014AP2813-CR

the 6th Amendment or Article 1, Section 7 [of the Wisconsin

Constitution]." But this case does not involve prospective

jurors who were not sworn, as the affidavit of the La Crosse

County Clerk of Courts confirms. And Lepsch does not explain

why the two potential defects he identifies——that the oath was

administered by a clerk rather than the circuit court and that

Lepsch was absent at the administration of the oath——means that

the jury was not "sworn properly" for purposes that would be

relevant to the impartiality of his jury. In other words,

Lepsch's statement that the manner of administration of the oath

meant that his jury was not impartial is simply conclusory.25

Without more, we are unable to conclude that Lepsch's jury was

not impartial. Accordingly, we apply Pinno and conclude that

Lepsch's claim is forfeited.26

25
If Lepsch means to suggest that other defects existed, he
does not identify them.
26
Lepsch adds, at the end of his argument, that "[I]n
addition to the prejudice caused immediately to Lepsch by the
public trial violation, prejudice also existed as to the public
at large and the media, both of which had an obvious and
compelling interest in maintaining an open court." This is an
argument that implicates the First Amendment, among other
sources of law, see State v. Pinno, 2014 WI 74, ¶70, 356
Wis. 2d 106, 850 N.W.2d 207, and requires greater development
before we will consider it. It is unclear, for instance, how
Lepsch's statement fits into his general argument and why the
proposition he recites would require us to determine that he had
not forfeited his claim. We do not address it further.
Cemetery Servs., Inc., 221 Wis. 2d at 831 ("Constitutional
claims are very complicated from an analytic perspective, both
to brief and to decide. A one or two paragraph statement that
raises the specter of such claims is insufficient to constitute
a valid appeal of these constitutional issues to this court.").

33
 No. 2014AP2813-CR

¶53 Having concluded that Lepsch's claim is indeed

forfeited, we proceed to Lepsch's contention that his attorneys'

failure to "ensure that the trial court properly administered

the oath to the jury venire in Lepsch's presence constituted

ineffective assistance of counsel." With regard to the

prejudice prong of the analysis, Lepsch's argument consists of

two sentences. First, "In terms of prejudice, Lepsch suffered

actual prejudice in that an improperly sworn jury did not and

could not constitute an impartial jury." We have already

rejected this argument. Second, "In the alternative, this Court

should presume prejudice given that the failure to properly

administer the oath to prospective jurors amounted to structural

error." We read this vague argument to refer back to Lepsch's

earlier argument: "[T]he improper administration of the oath

created two different structural errors. The first directly

pertained to Lepsch's right to a public trial and the second

pertained to Lepsch's right to an impartial jury." Because we

have concluded that Lepsch's right to an impartial jury was not
violated by the administration of the oath by the clerk outside

of his presence, we need only address ineffective assistance as

it pertains to Lepsch's first claim related to his right to a

public trial.

¶54 In Pinno we concluded that a presumption of prejudice

was not appropriate in cases involving "the denial of the right

to a public voir dire." Pinno, 356 Wis. 2d 106, ¶85. Below,

the court of appeals remarked that Lepsch had "not developed an
argument distinguishing the claimed structural errors in this
34
 No. 2014AP2813-CR

case from the errors in Pinno, id., ¶¶83–86, which were deemed

not to give rise to a presumption of prejudice." Lepsch,

unpublished slip op., ¶8. Lepsch has not altered his approach

before this court. Therefore, we reject his argument. Finally,

we note that Lepsch has not demonstrated that he was prejudiced

in any other way by his attorneys' failure to object to the

manner of the administration of the oath. We conclude that he

was not denied the effective assistance of counsel with regard

to this claim.27

C. Peremptory Strikes

¶55 Finally, Lepsch argues that the circuit court's

failure to award him the proper number of peremptory strikes,

along with its failure to strike certain jurors for cause,

violated his rights to due process of law and to an impartial

jury. Lepsch argues that he was given six peremptory strikes

rather than the seven to which he was entitled, and that he was

forced to exhaust his strikes on jurors who should have been

dismissed for cause, such that he was unable to dismiss the
jurors who actually sat on his jury. He contends that his

attorneys were ineffective in failing to object to receiving an

27
Additionally, we reiterate our earlier rejection of
Lepsch's argument that voir dire encompasses the administration
of the oath to the prospective jurors in the first place. He
has not adequately explained why the administration of the oath
to the prospective jurors in the jury assembly room, if not part
of voir dire, would nevertheless violate his right to a public
trial.

35
 No. 2014AP2813-CR

incorrect number of peremptory strikes and in failing to

challenge certain jurors for cause.

¶56 There seems to be no dispute that both Lepsch and the

State were entitled to seven peremptory strikes under the law

but were only given six each. See Wis. Stat. § 972.03 (2013-

14). Nevertheless, we conclude, again, that even if Lepsch's

attorneys performed deficiently in not raising the appropriate

objections and challenges, Lepsch was not prejudiced by the

performance.

¶57 As has been stated, Lepsch has not shown that any of

his jurors were biased. With regard to Lepsch's complaint that

he was entitled to an additional peremptory strike, this case is

therefore not unlike Erickson, where both the State and the

defendant were granted four peremptory strikes rather than the

seven to which they were entitled. Erickson, 227 Wis. 2d at

762. Analyzing the defendant's ineffective assistance of

counsel claim, we "decline[d] to presume prejudice every time

there [was] a denial of an equal number of peremptory strikes to
both the defense and the prosecution" and where "[t]here [was]

little doubt that [the defendant] was judged by an impartial

jury." Id. at 761, 777. We then concluded that a determination

that actual prejudice existed was inappropriate: "In the end, we

can do no better than speculate on what would have been the

result of [the defendant's] trial had the circuit court not

erred, which is also the best that Erickson can offer." Id at

774. The same analysis applies in this case.

36
 No. 2014AP2813-CR

¶58 Second, assuming Lepsch was forced to use peremptory

strikes on jurors who should have been challenged for cause, the

error did not in fact result in a biased juror sitting on

Lepsch's jury. Consequently, the ineffective assistance claim

Lepsch has made28 fails. See State v. Traylor, 170 Wis. 2d 393,

28
For the most part, Lepsch's argument hinges on his belief
that biased jurors sat on his jury. However, Lepsch summarily
remarks, citing State v. Sellhausen, 2012 WI 5, 338 Wis. 2d 286,
809 N.W.2d 14, that "[w]here a defendant is forced to use most
or all of his peremptory strikes to strike jurors who should
have been properly excused by the trial court for cause, the
error is harmful." Sellhausen's discussion of this point in
turn cited to State v. Lindell, 2001 WI 108, 245 Wis. 2d 689,
629 N.W.2d 223. See Sellhausen, 338 Wis. 2d 286, ¶¶17-18.
However, Lepsch fails to note that Lindell examined whether
"[t]he substantial rights of a party are . . . affected or
impaired when a defendant chooses to exercise a single
peremptory strike to correct a circuit court error," and stated
it was "not called upon here to evaluate other situations."
Lindell, 245 Wis. 2d 689, ¶113 (emphasis added); see also id.,
¶119 (noting the State's concession that "reversal might be
appropriate when a circuit court judge . . . makes errors that
force a defendant to use most or all of his or her peremptory
strikes" (emphasis added)). In other words, the extent to which
the proposition of law cited by Lepsch is settled is not at all
clear.

(continued)
37
 No. 2014AP2813-CR

400, 489 N.W.2d 626 (Ct. App. 1992) ("Traylor cannot prove

prejudice unless he can show that the exhaustion of peremptory

challenges left him with a jury that included an objectionable

or incompetent member. Wisconsin's longstanding rule is that

where a fair and impartial jury is impaneled, there is no basis

for concluding that a defendant was wrongly required to use

peremptory challenges." (citation omitted)).

IV. CONCLUSION

¶59 We conclude that each of Lepsch's claims fails, and

that he is not entitled to a new trial. Consequently, we affirm

the decision of the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

Despite this fact, Lepsch does not develop an argument
discussing the application of this proposition to his case at
all or the appropriateness of doing so, whether as an
independent claim or within the ineffective assistance of
counsel framework. As stated, most of Lepsch's argument depends
on his assumption——which we have rejected——that biased jurors
sat on his jury. Moreover, were we to examine a claim that
reversal is warranted regardless of whether Lepsch's jury was
impartial or not, we would need to determine whether the circuit
court had indeed improperly failed to strike for cause the five
jurors Lepsch identifies. Yet Lepsch's discussion of the
circuit court's putative errors in this regard is cursory. We
decline to construct an argument for him and delve into this
area of law on the basis of an inadequately-developed argument.
Thus, we do not address this claim further. Cemetery Servs.,
Inc., 221 Wis. 2d at 831.

38
 No. 2014AP2813.ssa

¶60 SHIRLEY S. ABRAHAMSON, J. (concurring). In the

instant case, prospective jurors made statements either in their

responses to the jury questionnaire or at voir dire or both that

indicated they might not be impartial or that they might not be

able to apply legal principles. The circuit court and the

attorneys questioned the prospective jurors to "rehabilitate"

them to enable them to serve on the jury. The question

presented in the instant case is whether one or more jurors were

biased notwithstanding the attempts at rehabilitation.1

¶61 Lepsch's challenge to the jury is grounded on the

ineffective assistance of his trial counsel to challenge

prospective members of the jury. Ineffective assistance of

trial counsel is a two-part inquiry under Strickland v.

Washington, 466 U.S. 668 (1984). The burden of proof in the

instant case is on Lepsch. He must show (1) that his trial

counsel performed deficiently; and (2) that the deficient

performance prejudiced him. Because I conclude that the jury

was not biased, I conclude that trial counsel's performance was
not deficient in jury selection. I therefore do not need to

reach the prejudicial prong of the Strickland analysis.2

1
Wisconsin employs a tripartite classification of juror
bias: statutory, subjective, and objective. See State v.
Faucher, 227 Wis. 2d 700, 717-19, 596 N.W.2d 770 (1999).

The federal courts do not use this terminology but use
analogous principles to discuss jury bias.
2
Jury bias is a structural error:

When concluding in our previous cases that a juror was
biased and was erroneously impaneled, the court has
reversed the defendant's conviction and ordered a new
(continued)
1
 No. 2014AP2813.ssa

¶62 The right to an impartial jury is guaranteed by

statute and the federal and state constitutions. I begin with

Wis. Stat. § 805.08(1) (2015-16),3 which requires a court to

examine on oath each person who is called as a juror to discover

whether the juror has expressed or formed any opinion, or is

aware of any personal bias or prejudice in the case. The

statute enables any party to challenge a juror for cause and

trial without inquiry into harmless error. These
cases reflect the rule that juror bias taints the
entire proceeding and requires automatic reversal.
Juror bias is a defect affecting the framework within
which the trial proceeds, rather than simply an error
in the trial process itself. Juror bias seriously
affects the fairness, integrity, or public reputation
of judicial proceedings and is per se prejudicial.

State v. Tody, 2009 WI 31, ¶44, 316 Wis. 2d 689, 764 N.W.2d 737
(footnote omitted), abrogated on other grounds by State v.
Sellhausen, 2012 WI 5, 338 Wis. 2d 286, 809 N.W.2d 14.
3
Wisconsin Stat. § 805.08(1) provides:

Qualifications, examination. The court shall examine
on oath each person who is called as a juror to
discover whether the juror is related by blood,
marriage or adoption to any party or to any attorney
appearing in the case, or has any financial interest
in the case, or has expressed or formed any opinion,
or is aware of any bias or prejudice in the case. If
a juror is not indifferent in the case, the juror
shall be excused. Any party objecting for cause to a
juror may introduce evidence in support of the
objection. This section shall not be construed as
abridging in any manner the right of either party to
supplement the court's examination of any person as to
qualifications, but such examination shall not be
repetitious or based upon hypothetical questions
(emphasis added).

All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

2
 No. 2014AP2813.ssa

introduce evidence in support of an objection. It sets the

standard for excusing a prospective juror: "If a juror is not

indifferent in the case, the juror shall be excused." Several

Wisconsin cases interpret and apply the statutory standard of

"indifferent."4

¶63 The court took this case to determine whether

Wisconsin case law relating to juror bias is consistent with or

in tension with the United States Supreme Court's and the

4
See, e.g., Tody, 316 Wis. 2d 689, ¶36. Tody addresses the
statute as follows:

"To be impartial, a juror must be indifferent and
capable of basing his or her verdict upon the evidence
developed at trial." A juror therefore should be
viewed as objectively biased if a reasonable person in
the juror's position could not avoid basing his or her
verdict upon considerations extraneous to evidence put
before the jury at trial.

(Quoting Faucher, 227 Wis. 2d at 715.)

Faucher, 227 Wis. 2d at 715, addresses the statute as
follows:

To be impartial, a juror must be indifferent and
capable of basing his or her verdict upon the evidence
developed at trial. Irvin v. Dowd, 366 U.S. 717, 722,
81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). The
requirement that a juror be indifferent is codified in
Wis. Stat. § 805.08(1) (1995–96). That statute
requires the circuit court to examine on oath each
person who is called as a juror to discover if he or
she "has expressed or formed any opinion or is aware
of any bias or prejudice in the case." Wis. Stat.
§ 805.08(1). The statute directs that "[I]f a juror
is not indifferent in the case, the juror shall be
excused." Id. We have stated that even the
appearance of bias should be avoided. [State v.]
Louis, 156 Wis. 2d [470,] 478, 457 N.W.2d 484
[(1990)]. (Footnote omitted.)

3
 No. 2014AP2813.ssa

Seventh Circuit Court of Appeals' interpretations of the Sixth

Amendment right to trial by "an impartial jury." Lepsch and the

Office of the State Public Defender (which filed a non-party

brief) request this court to clarify Wisconsin's juror bias law

to resolve the perceived tension.5

¶64 The majority opinion fails to address this perceived

tension. Instead, it merely explains in a footnote that

Lepsch's citations to "lower federal court" decisions are

unavailing and that this court is not bound by "lower federal

court" decisions. Majority op., ¶35 n.14 (citing Madison

Teachers, Inc. v. Walker, 2014 WI 99, ¶68, 358 Wis. 2d 1, 851

N.W.2d 337).

¶65 I address the issue of perceived tension and conclude

that any perceived tension arises because Wisconsin cases on

jury bias have apparently not considered Patton v. Yount, 467

U.S. 1025 (1984), and need to be harmonized.6

5
In Oswald v. Bertrand, 249 F. Supp. 2d 1078 (E.D. Wis.
2003), the federal district court granted habeas corpus to a
defendant convicted in a Wisconsin circuit court. The district
court ruled that the Wisconsin circuit court had failed to
comply with the Seventh Circuit requirement of an "unequivocal"
declaration by a juror. In contrast, the federal court of
appeals affirmed the district court but concluded that the
inquiry the Wisconsin circuit court conducted "flunked the
constitutional test that 'the investigation be reasonably
calculated to resolve the doubts raised about the juror's
impartiality.'" Oswald v. Bertrand, 374 F.3d 475 (7th Cir.
2004) (quoted source omitted).
6
For a discussion of the development of Wisconsin's juror
bias case law and the challenges that the case law has created
for the bench and bar, see Kurt F. Ellison, Getting Out of the
Funk: How Wisconsin Courts Can Protect Against the Threat to
Impartial Jury Trials, 96 Marq. L. Rev. 953 (2013).

4
 No. 2014AP2813.ssa

¶66 I begin with the test set forth by the United States

Supreme Court, the supreme law of the land, which this court is

obliged to follow. In Patton, 467 U.S. at 1036, 1038, 1040, the

United States Supreme Court stated the applicable test to

determine whether a prospective juror can suspend a belief or

opinion calling his or her impartiality into question. The

Court also set forth the standard for appellate review of a

trial court's determination of the prospective juror's

impartiality. This two-part test is as follows:

Did a juror swear that he could set aside any opinion
he might hold and decide the case on the evidence, and
should the juror's protestation of impartiality [be]
believed. . . . [T]he determination is essentially one
of credibility, and therefore largely one of
demeanor. . . . It is here that the federal court's
deference must operate, for while the cold record
arouses some concern, only the trial judge could tell
which of these answers was said with the greatest
comprehension and certainty.
Patton, 467 U.S. at 1036, 1038, 1040.

¶67 The Seventh Circuit Court of Appeals, also obliged to

follow the decisions of the United States Supreme Court, has
stated its own construction of the applicable test to determine

whether a prospective juror can suspend a belief calling his or

her impartiality into question. The Seventh Circuit has also

set forth the standard for appellate review of a trial court's

determination of the prospective juror's impartiality. The

Seventh Circuit's two-part test has been stated in the following

formulations:

• Marshall v. City of Chicago, 762 F.3d 573 (7th Cir.
2014) (citing United States v. Allen, 605 F.3d 461,
464-65 (7th Cir. 2010):

5
 No. 2014AP2813.ssa

The judge looks for an unwavering affirmation of
impartiality, without which the juror should be
excused. The requirement is satisfied by a juror's
affirmation, for example, that she can set aside any
opinion she might hold, relinquish her prior beliefs,
or lay aside her biases or her prejudicial personal
experiences. United States v. Allen, 605 F.3d 461,
464-65 (7th Cir. 2010) (internal citations omitted).
Ultimately, the decision whether to excuse a juror for
cause rests firmly within the discretion of the
district judge, and we will reverse only where we find
an abuse of such. . . . (abuse of discretion occurs
only where "no reasonable person would agree with the
trial court's ruling").

• United States v. Allen, 605 F.3d 461, 464-65 (7th Cir.
2010):

[The mandates of due process and an impartial jury]
are satisfied, when seating a prospective juror
despite a party's for-cause challenge, if the
prospective juror has given final, unequivocal
assurances, deemed credible by the judge, that for
purposes of deciding the case, she can "set aside any
opinion [she] might hold," Patton v. Yount, 467 U.S.
1025, 1036 . . . (1984), "relinquish her prior
beliefs, [Thompson v. Altheimer & Gray, 248 F.3d 621,
626], or "lay aside her biases or her prejudicial
personal experiences, United States v. Gonzalez, 214
F.3d 1109, 1114 (9th Cir. 2000). See Thompson, 248
F.3d at 626 (collecting cases).

The district court was within its discretion to find
that the prospective juror gave final, unequivocal,
and credible assurances that she could set aside any
bias . . . and decide the case on the evidence . . . .

Prior equivocating or wavering is hardly dispositive
in assessing credibility, as "[j]urors . . . cannot be
expected invariably to express
themselves . . . consistently." . . . Because
appellate judges are absent from voir dire, when a
prospective juror fails to express herself "carefully
or even consistently . . . it is [the trial] judge who

6
 No. 2014AP2813.ssa

is best situated to determine competency to serve
impartially." Patton, 467 U.S. at 1039 . . . .7
¶68 Examining Marshall and Allen, two Seventh Circuit

Cases, side-by-side, it becomes clear that Allen uses slightly

different language than Marshall. Lepsch and the SPD's office

cite Allen as illustrating the tension among Patton, the Seventh

Circuit cases, and the Wisconsin cases on jury bias.

¶69 Language in some Wisconsin cases is similar to the

language in Patton and to the cases from the Seventh Circuit

Court of Appeals. For example, this court stated in State v.

Kiernan, 227 Wis. 2d 736, 745, 596 N.W.2d 760 (1999), that an

acceptable juror is

7
In United States v. Taylor, 777 F.3d 434, 441 (7th Cir.
2015), the Seventh Circuit Court of Appeals stated the
applicable test as follows:

The requirement of an impartial jury is met when "the
prospective juror has given final, unequivocal
assurances, deemed credible by the judge, that for
purposes of deciding the case, she can set aside any
opinion [she] might hold, relinquish her prior
beliefs, or lay aside her biases or her prejudicial
personal experiences." Allen . . . .

A prospective juror does not come to the courtroom as
a tabula rasa. The important question is whether the
juror can put aside the experiences and beliefs that
may prejudice his view of the case and render a
verdict based on the evidence and the law. Although
R.W. was initially equivocal . . . the judge's follow-
up examination cleared up the ambiguity. The judge
asked him if he "could be fair and impartial to both
sides and decide this case only on the evidence
introduced during this trial and the law that I am
giving you." To this question R.W. answered "yes"
without qualification. This unequivocal assurance——
deemed credible by the trial judge——is sufficient.

7
 No. 2014AP2813.ssa

a reasonable person who is sincerely willing to set
aside any opinion or prior knowledge that the juror
might have. Discerning whether a juror exhibits this
type of bias depends upon that juror's verbal
responses to questions at voir dire, as well as that
juror's demeanor in giving those responses. These
observations are best within the province of the
circuit court (citation omitted).8
¶70 The United States Supreme Court cases, the Seventh

Circuit cases, and the Kiernan case are similar in three

important respects: (1) An individual can be seated as a juror

if he or she can set aside an opinion or bias; (2) the trial
judge must believe the prospective juror's statement of

impartiality; and (3) appellate review is deferential because

the trial judge is best situated to determine a prospective

juror's ability to serve impartially.

¶71 The difference among the three courts, according to

Lepsch and the Public Defender, is the language in the Seventh

Circuit cases demanding that the prospective juror give "final,

unequivocal assurances" that he or she will set aside any bias

and decide the case on the evidence. This phrase, "final,

unequivocal assurances," does not appear in Patton. Patton

seems to leave more room for trial court discretion in assessing

the juror's impartiality than does the "final, unequivocal

assurances" language.

¶72 It is not surprising, then, that a careful reading of

the Seventh Circuit cases shows that the "final, unequivocal

assurances" language also leaves room for various types of

8
See also State v. Oswald, 2000 WI App 2, ¶19, 232
Wis. 2d 62, 606 N.W.2d 207.

8
 No. 2014AP2813.ssa

responses by a prospective juror and for trial court discretion

to evaluate those responses. A study of the Seventh Circuit's

applications of the "final, unequivocal assurances" language

demonstrates that the Seventh Circuit requires the bare minimum

of assurances.

¶73 For example, in United States v. Allen, 605 F.3d 461,

464–65 (7th Cir. 2010), the Seventh Circuit reviewed a district

court's finding that a juror was not biased. That juror

initially submitted a juror questionnaire stating that she would

have a hard time being fair because of a prior incident. Upon

questioning by the trial judge, the juror's answers reaffirmed

this belief. But, upon further questioning (this kind of more

rigorous, "digging down" type of questioning is sometimes

referred to as "rehabilitating" the prospective juror) the judge

instructed her that "both sides are entitled to fairness" and

asked her whether she could keep an open mind. The juror

replied that she could. Upon even further questioning, the

juror stated that she "would give [the defendant] the benefit of
the doubt until evidence was presented." The district court

judge decided that this juror was not biased.

¶74 The Seventh Circuit affirmed the decision of the

district court. The Seventh Circuit first set forth the

applicable "final, unequivocal assurances" test as follows: The

requirement of an impartial jury is met when

the prospective juror has given final, unequivocal
assurances, deemed credible by the judge, that for
purposes of deciding the case, she can set aside any
opinion [she] might hold, relinquish her prior

9
 No. 2014AP2813.ssa

beliefs, or lay aside her biases or her prejudicial
personal experiences.
Allen, 605 F.3d at 464-65 (internal quotation marks and

citations omitted).

¶75 After setting forth this test, the Allen court

emphasized that "[p]rior equivocating or wavering is hardly

dispositive in assessing credibility, as '[j]urors . . . cannot

be expected invariably to express

themselves . . . consistently.'" Allen, 605 F.3d at 466

(quoting Patton, 467 U.S. at 1039).

¶76 The Allen court also emphasized that "[b]ecause

appellate judges are absent from voir dire, when a prospective

juror fails to express herself 'carefully or even

consistently . . . it is [the trial] judge who is best situated

to determine competency to serve impartially.'" Allen, 605 F.3d

at 466 (quoting Patton, 467 U.S. at 1039).

¶77 Although the Allen court of appeals suggested that the

trial court could have engaged in more rigorous, explicit

questioning of the juror, the court of appeals accepted, as an

unequivocal statement, the juror's statement that she would give

the defendant "the benefit of the doubt." Allen, 605 F.3d at

466.9

9
In United States v. Allen, 605 F.3d 461, 466 (7th Cir.
2010), the Seventh Circuit Court of Appeals upheld the district
court's seating a juror despite her multiple equivocal and
unequivocal comments as follows:

We do not doubt that the trial judge's questioning of
the prospective juror could have been more explicit in
determining whether she would be able to "set aside
any opinion [she] might hold," Patton, 467 U.S. at
(continued)
10
 No. 2014AP2813.ssa

¶78 Thus, although the literal language in the Seventh

Circuit cases requires "final, unequivocal assurances" that a

juror is impartial, that assurance can be as minimal as an

affirmative response to a judge's question whether the juror can

be impartial. And, whatever the trial court's determination may

be, it is accorded substantial deference by an appellate court

because the trial court is in a position to judge the juror's

credibility.

¶79 Furthermore, cases from other federal courts of

appeals are cited by the Seventh Circuit. These other federal

courts do not use the same "unequivocal" language as the Seventh

Circuit. These cases ask whether the prospective juror swore to

set aside any opinion or bias and decide the case on the

1036 . . . "relinquish her prior beliefs," Thompson,
248 F.3d at 626, or "lay aside her biases or her
prejudicial personal experiences," Gonzalez, 214 F.3d
at 1114. Nevertheless——given the relatively minimal
bias the prospective juror must have had toward
finding this particular defendant guilty, her final
and unequivocal statement that she would give Allen
the benefit of the doubt until the close of trial, and
her demonstrated ability to follow the judge's
instructions——we hold that the district court was
within its discretion to find that the prospective
juror' prior experience would not impede her ability
to decide the case fairly. So we find no violation of
Allen's rights to due process and to an impartial
jury.

11
 No. 2014AP2813.ssa

evidence and whether the juror's protestation of impartiality

can be believed by the trial court.10

¶80 After considering Patton and the Seventh Circuit

cases, I turn to the Wisconsin jury bias decisions.

¶81 Although several of Wisconsin's jury cases were

decided after Patton, few cite Patton.

¶82 Reference to Patton appears in State v. Ferron, 219

Wis. 2d 481, 579 N.W.2d 654 (1998), abrogated on other grounds

by State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629

N.W.2d 223, in which the court cited Patton for the proposition

that "[i]t is a well-settled principle of law in this state that

a determination by a circuit court that a prospective juror can

be impartial should be overturned only where the prospective

10
See, e.g., United States v. Jones, 716 F.3d 851, 857 (4th
Cir. 2013) ("Although a juror's avowal of impartiality is not
dispositive, if a district court views juror assurances of
continued impartiality to be credible, the court may rely upon
such assurances in deciding whether a defendant has satisfied
the burden of proving actual prejudice." (citation omitted))
(citing Murphy v. Florida, 421 U.S. 794, 800 (1975)); Montgomery
v. Bobby, 654 F.3d 668, 684 (6th Cir. 2011) ("When presented
with an allegation of bias, the question is 'did a juror swear
that [s]he could set aside any opinion [s]he might hold and
decide the case on the evidence, and should the juror's
protestation of impartiality have been believed.'" (quoted
source omitted); finding no juror bias when judge asked whether
juror's self-reported bias would "have any effect on your
consideration of the matter that is before the jury now?" with
the juror responding, "No, no"); United States v. Rowe, 144 F.3d
15 (1st Cir. 1998) (explaining that the trial court finding of
no juror bias will be upheld unless clearly erroneous; finding
no bias where the trial court "asked Juror A whether his concern
would 'in any way impede or impair [his] impartial consideration
of the case,' and the juror assured the court that his
evaluation of the case would be impartial.") (juror's exact
response not provided in opinion).

12
 No. 2014AP2813.ssa

juror's bias is 'manifest.' . . . The United States Supreme

Court has frequently ruled to the same effect. See, e.g.,

Patton v. Yount, 467 U.S. 1025, 1031-32 . . . ."

¶83 Ferron's reliance on this "manifest error" language is

of dubious value. Patton discussed jury bias resulting from

pretrial publicity and explained that an amended habeas statute

may have replaced this "manifest error" standard. Patton, 467

U.S. at 1032 n.7.11

¶84 But, more importantly, as I read Wisconsin decisions

in which I joined almost twenty years ago, I see a problem: The

Wisconsin cases include language that is internally and

externally inconsistent; language that is hard to understand and

apply; and language that does not conform to the Patton test.

¶85 In State v. Faucher, 227 Wis. 2d 700, 731 n.8, 596

N.W.2d 70 (1999), for instance, the court stated: "We remain

committed to our view that a prospective juror need not

unambiguously state his or her ability to set aside a bias."

¶86 Likewise, in State v. Erickson, 227 Wis. 2d 758, 776,
596 N.W.2d 749 (1999), the court stated: "[A] prospective juror

need not respond to voir dire questions with unequivocal

declarations of impartiality. Indeed, we . . . fully expect a

juror's honest answers at times to be less than unequivocal."

11
I do not address the question whether pretrial media
coverage of Lepsch's case contributed to a biased jury. The
parties did not raise it. Pretrial publicity cases seem to be
analyzed somewhat differently than the question of the bias
exhibited by an individual prospective juror. See Skilling v.
United States, 561 U.S. 358 (2010) (a pretrial publicity case).

13
 No. 2014AP2813.ssa

¶87 That said, a prospective juror who equivocates and

says, for example, that she can "probably" be fair, was declared

biased under Wisconsin law. This court explained in Ferron, 219

Wis. 2d at 501, that equivocation bars a prospective juror from

serving because equivocation is insufficient to demonstrate a

sincere willingness to set aside a bias:

There are no magical words that need be spoken by the
prospective juror, and the juror need not
affirmatively state that he or she can "definitely"
set the bias aside. Suffice it to say that without
the appropriate follow-up questions by the circuit
court, a juror's final word of "probably" is
insufficient to indicate a sincere willingness to set
aside his or her bias against parties who choose to
exercise their constitutional rights. (Emphasis
added).
¶88 As I read these decisions, they are somewhat

contradictory and fail to provide sufficient guidance to circuit

courts, the court of appeals, and this court.

¶89 I conclude, however, that the Wisconsin cases can be

harmonized and stated in conformity with United States Supreme

Court and Seventh Circuit Court of Appeals cases as follows:
• An impartial juror is a "reasonable person who is

sincerely willing to put aside an opinion or prior

knowledge." Faucher, 227 Wis. 2d at 724.

• Although a prospective juror need not say any "magic

words," the record must demonstrate that the

prospective juror (who is sworn under oath)12 has

committed or assured that he or she can set aside any

12
See Wis. Stat. § 805.08(1); majority op., ¶¶40-43.

14
 No. 2014AP2813.ssa

opinion or bias held and decide the case on the

evidence.

• Evaluating the subjective sincerity of these

expressions of impartiality of a prospective juror is

a matter for the circuit court. The determination is

essentially one of credibility. The expressions of

the prospective juror regarding his or her

impartiality are not conclusive.

• An appellate court "defers to a large extent to the

decision of the circuit court about subjective [juror]

bias because the circuit court is in a superior

position to assess the demeanor and disposition of

prospective jurors," State v. Funk, 2011 WI 62, ¶76,

335 Wis. 2d 369, 799 N.W.2d 421, and an appellate

court will reverse a circuit court's decision that a

juror was subjectively biased only if the decision is

"clearly erroneous." Faucher, 227 Wis. 2d at 718.

• The standard of an appellate court's review of a
circuit court's determination of objective juror bias

is set forth in Faucher, 227 Wis. 2d at 720: An

appellate court will reverse the circuit court's

decision that a juror was objectively biased "only if

15
 No. 2014AP2813.ssa

as a matter of law a reasonable judge could not have

reached such a conclusion."13

• Finally, an important guiding principle to be followed

in every case is that the circuit court should err on

the side of striking prospective jurors when it is

reasonable to suspect that bias is present.14

¶90 This is a close case for me.15 In this concurrence, I

focus on two jurors, J.A. and D.M. Each expressed the belief,

in answers to the questionnaire, that police officers were more

credible than other witnesses. Neither the circuit court nor

either side's trial counsel sufficiently followed up with J.A.

or D.M. regarding their bias. See majority op., ¶¶29-31.

13
The prospective juror in Faucher, 227 Wis. 2d at 731-32,
was unequivocal and unambiguous in stating he would follow the
law; the circuit court seated the juror. Nevertheless, this
court concluded that the circuit court erred as a matter of law
in seating the juror. The court reversed the circuit court,
concluding that under the circumstances of that case a
reasonable judge could not have believed that the prospective
juror could truly set aside his strongly held belief.
14
See, e.g., State v. Sellhausen, 2012 WI 5, ¶29, 338
Wis. 2d 286, 809 N.W.2d 14; State v. Lindell, 2001 WI 108, ¶49,
245 Wis. 2d 689, 629 N.W.2d 223; Kanzenbach v. S.C. Johnson &
Son, Inc., 273 Wis. 621, 627, 79 N.W.2d 249 (1956).

This guiding principle rings true now more than ever. The
Sixth Amendment guarantee of an impartial jury and concern over
systemic loss of confidence in jury verdicts have moved the
United States Supreme Court to recently re-examine Batson claims
and the jury "no-impeachment rule" to eliminate racial bias in
the jury system. See Foster v. Chatman, 136 S. Ct. 1737 (2016);
Pena-Rodriguez v. Colorado, No. 15-606, 2017WL855760 (U.S. Mar.
6, 2017).
15
Justice Ann Walsh Bradley does not join this sentence.

16
 No. 2014AP2813.ssa

¶91 That said, both answered "No" on their questionnaires

when asked whether there was any reason why they could not be

impartial. Additionally, both J.A. and D.M. were present during

questioning of the jurors as a group, where questions regarding

police credibility arose and neither restated his or her bias.

And, finally, the State asked the group whether any prospective

jurors could not be fair; neither J.A. nor D.M. responded.

¶92 The circuit court and trial counsel in the instant

case could have (and should have) asked these two jurors more

rigorous, explicit questions to rebut their responses that

indicated bias and to firm up their ability to set aside their

opinions and biases and base their decision on the evidence.

Nevertheless, the record is minimally good enough to demonstrate

that each juror was a reasonable person who was sincerely

willing to put aside an opinion. Majority op., ¶¶29-31. I

conclude that the circuit court judge was in the best position

to determine whether these prospective jurors were subjectively

biased. The circuit court's decision was not clearly erroneous.
With regard to objective bias, I conclude that I cannot reverse

the circuit court's conclusion, as a matter of law, on the

ground that a reasonable judge could not have reached such a

conclusion.

¶93 For the reasons set forth, I write separately.

¶94 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion, except for the first sentence of

¶90.

17
 No. 2014AP2813.ssa

1