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unpublished decision of the court of appeals, State v. Lepsch,
No. 2014AP2813-CR, unpublished slip op.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
State v. Jeffrey P. Lepsch
Court: Wisconsin Supreme Court
Date filed: 2017-03-31
Citations: 374 Wis. 2d 98, 2017 WI 27
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