Former judge proposes 12-person jury bill

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A Milwaukee assemblyman has introduced legislation requiring all criminal juries to have 12 members because of the six-member jury that heard George Zimmerman’s case in Florida.

The bill was introduced Aug. 20 by Democratic Rep. Fred Kessler, an attorney and former judge who served on the Milwaukee County bench in the 1970s and 1980s.

He said the impetus behind the bill was the six-member jury that decided Zimmerman’s fate for shooting and killing Trayvon Martin in 2012.

The all-female jury – with five white members – found Zimmerman not guilty of second-degree murder last month. Kessler wanted to ensure, in part, that juries are diverse, he said, and it is easier to do that with 12 people.

“I just looked at a six-person jury and said it is going to diminish the confidence that people have that they were treated fairly in court,” Kessler said.

But the number of criminal jury trials that go forward with less than 12 people is rare, defense attorneys and court employees said. Kessler and his legislative aide and attorney, Christina Tenuta, admitted that the bill is tailored to address a very narrow sliver of trials that occur in Wisconsin.

“It’s definitely something that probably occurs very seldom in Wisconsin, but Rep. Kessler still wanted to take an additional step to ensure that all juries consisted of 12 people,” Tenuta said.

Besides Florida, the only other state that holds criminal trials with less than 12 jurors is Connecticut, she said.

It’s rare in Milwaukee as well. Jury Services Coordinator Lori Watson Schumann said there have been no felony jury trials that were decided by less than 12 people since 2010.

About 10 traffic court cases a year have smaller juries, she said, while a few civil forfeiture cases also used less than 12 people.

John Barrett, Milwaukee County’s clerk of court, said jury services employees use a system to ensure that a given jury strives for “a full spectrum of our community.”

Overall, it is a random system, he said, though some juries may be more diverse than others.

“You have people who want to ensure that the system is fair and that it includes everybody,” Barrett said. “I don’t necessarily see any harm in the legislation. I don’t think we have many cases in which there are less than 12 that go, particularly in respect with criminal cases in Milwaukee.”

But even though the bill, if passed, would affect relatively few trials, it does raise a few concerns. Michael Witt, a Jefferson County attorney and president of the Wisconsin Association of Criminal Defense Lawyers, said the bill would force a judge to declare a mistrial if a jury, for some reason, was only left with 11 people during a multi-day trial.

This law, as it’s written, would take away a defendant’s ability to waive his or her right to a 12-member jury and proceed, Witt said. A lawyer who feels he or she is successfully arguing their case would not be able to continue under the new law, he said.

“If I have [a trial] with two jurors sick and I want to finish … I’d like to be able to do that,” Witt said, adding that he can only think of one instance during his career where this happened.

Witt also said the right to a 12-member jury is already guaranteed by Wisconsin’s constitution, and was already codified in a 1998 Supreme Court decision.

“[The bill] seems to be concerned with the diversity of the jury that’s impaneled,” Witt said. “It seems like a well-meaning idea that hasn’t been thought through.”

Kessler said he doesn’t see a problem with continuing a trial if that particular situation arose. He stressed that the bill is really designed to ensure that a jury’s makeup is analogous to the diversity in a given community.

The bill has several Democrats signed on as co-sponsors; a Senate version has not been introduced.

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