99-0743 State v. Franklin

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“We find nothing in Hansford to support the conclusion that the difference between a six-person jury trial and a twelve-person jury trial is so fundamental that a six-person jury trial, which was conducted without objection under the express authority of a statute, is automatically invalid. … While it is conceivable that the chances for acquittal or a hung jury would be greater in juries of 12 than in juries of six, this conclusion alone is insufficient to provide a basis for finding that there was a reasonable probability for a different result. We do not find any reason why six-person juries would undermine the confidence of an otherwise fair and error-free trial. Thus, beyond mere speculation, we cannot conclude that the six-person juries had an actual adverse effect on the defense in the defendants’ cases, and therefore, the defendants are not entitled to a reversal of their convictions.”

DISSENTING OPINION: Abrahamson, Ch. J., with whom Bradley and Sykes, JJ., join. “Because the defendants in the present cases did not waive their right to a 12-person jury in the manner set forth in sec. 972.02(1), the defendants are entitled to a new trial even when they did not preserve the error by objecting in the circuit court.”

Court of Appeals, Bablitch, J.

Attorneys:

For Appellant: Richard D. Martin, Madison

For Respondent: Gregory M. Posner-Weber, James E. Doyle, Madison