Wisconsin, where juries matter

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I often find myself writing about cases where jury trials were messed up, from badly to horribly, and appellate courts forgave — or didn’t see — the problem. “This case must be retried on facts”There’s been a run of exceptions lately, though, right in Deliberations’s backyard. In the last several weeks, different Wisconsin appellate panels have looked at trials where criminal juries saw or heard something they shouldn’t have. In each case, the courts reversed the convictions with striking firmness and clarity. Examples:State v. Stanley on December 12, a drunk driving case where the deliberating jury asked whether it was still “operating” if the defendant got into a car when the motor was already running. Quoting a prior case, State v. Proegler, the trial court told them that “operation” meant “either when a defendant starts the motor and/or leaves it running.” The court of appeals said that facts mattered, and that Mr. Proegler in the prior case had admittedly driven to the place where police found him. Stanley’s case was different: “We do not read the statute or the Proegler case to include as operators passengers who slide into the driver’s seat of a running vehicle and fall asleep.”State v. Champlain on December 5, where the defendant had to sit through trial — and write notes to his lawyer — wearing a visible “armband taser device.” The court held that it was not only ineffective assistance for his lawyer not to object, but that the trial court should have determined whether the armband was necessary even without an objection. State v. Cooper on December 4, where the state used a “show-up” identification that should have been suppressed under the Wisconsin Supreme Court’s 2005 State v. Dubose case. Dubose was decided after Cooper’s trial judge had ruled that the identification would be admitted, but before Cooper’s trial. The court of appeals held that Cooper’s counsel was ineffective for not asking for reconsideration of that ruling after Dubose came down, and that anyway the trial court should have granted postconviction motions based on Dubose. State v. Burton on October 31, where a police “gang expert” testified for the state. The court of appeals was mad: The expert’s testimony insinuated, without any basis, that Burton was a part of the gang culture, if not actually a member of a gang. It recast the case as being about gang retaliation or gang culture, anathema to the reasonable citizen, when there was no evidence that the shootings were gang crimes. Not only that, the testimony also purported to explain away the inconsistencies of witnesses simply because gangs infested the neighborhood in which the witnesses lived. If this had any probative value, which we doubt, it was far outweighed by prejudice. Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. This case must be retried based on facts, rather than insinuation or stereotyping. Another court in another state — or here, on another day — might have steered these cases toward a finding of harmless error, waiver, or some other way to salvage the trial, citing the burden on society when trials have to be done twice. There’s a place for those arguments sometimes, but they’re overused. I can personally report that life is going on as usual in Wisconsin even though these trials will be repeated. And a different burden on society — the one we bear when nobody cares what juries see and hear — is lifted.