A question raised by the case is what constitutes harmless error, and whether, as the dissent suggests, the majority opinion implicitly makes error grounds for reversal per se.
The comments by both the concurrence and dissent that the majority opinions harmless error analysis is wholly conclusory are absolutely correct. The two opinions are also correct that the harmless error standard set forth in Harvey and Tomlinson should be inapplicable to an error of this sort.
In Harvey, the trial court instructed the jury that a drug deal occurred within 1,000 feet of a park; in Tomlinson, the trial court instructed the jury that a baseball bat used to kill a man qualified as a dangerous weapon.
In both cases, the Supreme Court concluded it was improper to instruct the jury that an element of the respective crimes had been satisfied as a matter of law, but found the errors harmless, because the evidence was so overwhelming on these points that no rational jury could find otherwise. Harvey, 254 Wis.2d, at 466-467; Tomlinson, 124 Wis.2d, at 536.
As the dissent and concurrence noted, the majority does not even attempt to actually apply the test promulgated in Harvey and Tomlinson. Any attempt would indeed have been futile, as those opinions recognized, because the harm in this case affected the structural framework of the trial, rather than an error in the trial itself.
Regardless of whether the evidence of guilt is overwhelming or marginal, if one of the jurors could not understand English, the conviction must be deemed infirm.
The root problem, however, is neither the majority opinions insupportable contention that Harvey and Tomlinson apply, nor its failure to actually review the trial courts findings of fact under the clearly erroneous standard.
Instead, the root problem is the statute itself, which, on its face, provides that anyone who checks the box saying that he cant understand English shall be struck. A rationally written statute would instead impose a duty on the court to inquire into the potential jurors abilities.
The statute, as written, gives a free pass from jury duty to anyone who checks a box saying either that he cant understand English, is a convicted felon, is not 18 years of age, or is not a U.S. citizen. The statute makes no distinction whether the statement is truth, an inadvertent mistake, or an outright lie by an English professor who simply does not want to serve.
Nevertheless, attorneys and trial judges must find some way to work within the structure of the legislatures poorly drafted statute, and the majoritys interpretation.
Ultimately, there is one point on which all seven justices implicitly agree if a person who cannot understand English sits on a jury, the verdict is infirm.
If one classifies the error as the clerk of courts failure to strike a juror who checked the box saying he cant understand English as the majority and concurrence did then the error is not harmless per se, but the subsequent seating of the juror requires reversal. If one classifies the (claimed) error as the trial courts permitting a juror who cannot understand English to sit on the jury, then the error is per se grounds for reversal as the dissent suggested.
Another question raised by the decision is what it will take for the majority to realize its approach is unworkable. The answer to this is simple a case involving a juror who says on the questionnaire that he can understand English, but arguably cannot.
Confronted with those facts, and thus unable to impute the error of the clerk to the trial judge, the Court will have no choice but to deal solely with the actual claimed error the empanelment of a jur
or whose understanding of English is questionable.
When that case comes, if the court finds that the juror could not understand English, it will have no choice but to hold the error grounds for reversal per se.
As a final note to prosecutors, the majoritys statements that there is nothing in the record about the difficulty of the citizenship exam, and that Vera called it very easy, cannot be ignored.
Having no doubts whatsoever that a significant percentage of native-born high school graduates would fail it, a five minute search on Google revealed the following: according to a study performed by The Center for Excellence in Higher Education, 60 percent of students at the City University of New York, and 45 percent of students at the State University of New York, would fail the exam if tested. http://www.efpr.org/cehe/cuny_history. htm; http://www.efpr.org/cehe/suny_history.htm. In future cases, prosecutors would be wise to introduce such studies at the postconviction hearing.
– David Ziemer
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David Ziemer can be reached by email.