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Judge should not have seated his mother on jury

A judge’s mother should not sit on the jury while her son presides over the case.

However, while all six justices of the Wisconsin Supreme Court who heard the case agreed on that point, no majority agreed on a rationale.

In Wisconsin, “when the [c]ourt issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the [c]ourt’s ultimate holding.” Lounge Management, Ltd. v. Town of Trenton, 219 Wis.2d 13, 580 N.W.2d 156, 160 (1998).

As a result, the opinion stands for the mere proposition that no immediate family member of the judge should sit on a jury, without providing any precedential value beyond that.

Mark H. Tody Jr. was charged in Ashland County with taking and driving a motor vehicle without the owner’s consent, as a party to a crime.

Mother Hears Case

Judge Robert E. Eaton was the presiding judge; among the prospective jurors was Judge Eaton’s mother.

Counsel for Tody moved to strike the judge’s mother for cause, but Judge Eaton denied the motion, stating that he had no authority to do so. Neither the prosecutor, nor counsel for Tody, used a peremptory challenge against Ms. Eaton. She was empanelled on the jury, which found Tody guilty.

Tody appealed, but the state Court of Appeals affirmed in an unpublished opinion. The Supreme Court granted review and reversed, but no rationale garnered a majority.
Chief Justice Shirley S. Abrahamson wrote the lead opinion, joined by Justices Ann Walsh Bradley and N. Patrick Crooks. Justice Annette Kingsland Ziegler wrote a concurring opinion, joined by Justices David T. Prosser and Patience Drake Roggensack.

Justice Prosser also wrote a separate concurrence, and Justice Michael J. Gableman did not participate.

The lead opinion applied the law regarding juror bias, which recognizes three categories of bias: statutory bias; subjective bias; and objective bias. No statute applied, and there was nothing to suggest Ms. Eaton was subjectively biased, so the lead opinion looked solely to objective bias.

A juror is objectively biased if a reasonable person in the juror’s position could not be impartial.

Differing Opinions

The lead opinion acknowledged that, normally, it is a juror’s relationship to a party or to an attorney that gives rise to a finding of bias.

Nevertheless, Abrahamson concluded that a finding of bias could apply based on a juror’s relation to the judge as well.

“The judge’s mother has an interest in the case, namely her familial relationship with the judge, that is extraneous to the evidence on which the jury is to base its decision,” Abrahamson wrote. “A reasonable person in the position of the judge’s mother would not have been able to set aside her relationship to the presiding judge when discharging her duties as a juror.”

Abrahamson added that counsel may be reluctant to challenge a judge’s holdings with ordinary zeal if the judge’s mother is a juror, and that the other jurors may give improper deference to the judge’s mother.

Finally, the lead opinion noted, “The presence of a member of the judge’s immediate family on the jury seems conspicuously inconsistent with the jury’s function as, in part, a check upon the power of the judge.”

The lead opinion then concluded that the error was per se prejudicial, and Tody was not required to show prejudice.

Justice Ziegler wrote separately, maintaining that juror bias was an improper means of analyzing the issue, and the court should have looked instead to the trial court’s inherent authority.

“Under his inherent authority, the judge should have either stricken his mother from the jury or recused himself from the case,” Ziegler wrote. “Consequently, it is unnecessary for this court to manipulate this case to fit the law of objective bias. Because I do not agree that this case involves juror bias, I respectfully concur in the lead opinion’s decision to grant a new trial.”

Justice Prosser also wrote separately, arguing, “There has to be a reasonable middle ground between a precedent-setting opinion that would approve over the objection of the defendant, a judge’s family member sitting on a criminal jury in a trial in which the judge presides, and a precedent-setting opinion that would categorize every future case of objective bias a constitutional violation requiring a new trial. Justice Ziegler’s concurrence represents that middle ground.”


The case produces no precedent for future cases, other than that a member of the judge’s immediate family should not be seated as a juror in a trial over which the judge presides.

The lead opinion’s conclusion – that the judge’s mother was objectively biased – is not the narrowest grounds for the opinion, and neither is the conclusion that the error is per se prejudicial.

However, the opinion leaves attorneys and appellate judges in the dark if a trial judge were to refuse to remove for cause someone close to him, but not a member of his immediate family.

Justice Ziegler’s opinion warns, “We should acknowledge that a circuit court judge has the discretion to employ any number of tools to address the unexpected situations that may arise during selection of a jury and subsequent trial. A judge should make every attempt to avoid foreseeable problems.”

Any prospective juror who is closer to the judge than an acquaintance could present a foreseeable problem.

Earlier, Justice Ziegler refers to seating the judge’s mother as presenting “obvious problems.”

Unfortunately, the three-three split of the court will be problematic should a judge seat a juror, such as a personal friend, who presents “foreseeable problems,” but not “obvious problems.”

Under the “narrowest grounds,” as put forth in Justice Prosser’s dissent, an appellate court could hold that it was error for a trial court to seat a juror because of his relationship to the judge, but conclude that the error is not necessarily a structural error that requires automatic reversal.

Attorney Byron C. Lichstein, who represented Tody before the Supreme Court, agreed that the opinion doesn’t speak directly to lesser relationships between judges and potential jurors.

“The overriding principle is that what happened here should not have happened. The overall message is ‘be careful about this; err on the side of caution,’” Lichstein said.

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