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And Now, The Rest Of The Judge's-Mother-On-The-Jury Story

About a year ago I wrote a post about a Wisconsin court of appeals opinion affirming a small-town trial judge who refused to strike his own mother from the jury for cause. The post was fun to write, and I remember it fondly because other than my Blawg Review post, it's the only post here that Above The Law ever linked to, so I got all kinds of visitors from it.

To be honest, the opinion itself — like many unpublished opinions — wasn't all that interesting. But today the Wisconsin Supreme Court reversed it, and that opinion is a good read.

There are three opinions, actually. The three concurring justices (in two opinions) wanted simply to correct the trial judge's mistaken belief that there was not "any legal basis for excusing" his mom, without binding future judges to rule one way or the other on their own mothers if the occasion arises. The three majority justices1 went much further, holding that a judge's-mother-juror is always unconstitutional:

[W]e conclude that the defendant was deprived of his right under the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution to be tried by an impartial jury and accordingly reverse the conviction and order a new trial. A presiding judge's mother serving as a juror is a special circumstance so fraught with the possibility of bias that we must find objective bias regardless of the particular juror's assurances of impartiality.

Together, the opinions are a thought-provoking illustration of two viewpoints on the trial judge's task in jury selection. If you live in Wisconsin, they're also a little handbook, since they're the most current synopsis of the "objective bias" and "subjective bias" framework Wisconsin courts use to analyze jury selection issues.

Your move

There's a strategy component to the case that's interesting too. After Judge Eaton (that was his name) denied the motion to strike his mom, defense counsel decided not to use a peremptory strike on her, and left her on the jury. Under current Wisconsin law, that was the only way to preserve the issue on appeal. The case that says so is State v. Lindell, which sets out the chess game clearly: "If the circuit court erroneously fails to exclude a prospective juror who should be struck for cause, the defendant may take his or her chances and refuse to exercise a peremptory challenge, wait until the jury renders its verdict, appeal if he or she does not like the result, and then receive a new trial." The prosecutor is a player too:

Anticipating the defendant's possible strategy, the State has three courses of action: (1) It can join the defendant in urging the court to remove a juror for cause; (2) it can exercise one of its own limited peremptory strikes to remove a juror who should have been struck for cause; or (3) it can do nothing and risk a new trial if an appellate court finds that a biased juror sat on the jury.

That quote is from Lindell. The Supreme Court's opinion today is State v. Tody.


1 If you're counting, you got six justices, all concurring in the result but split on the precedent they wanted to create. That's because one of the seven justices didn't participate. I'm not enough of an appellate guru to figure out why the majority opinion is a majority opinion under those circumstances, but it sure sounds like one. If you know, please comment below.


  1. all six justices would have voted to reverse. abrahamson was randomly selected to author the opinion, but once it was written only two other justices joined it. nevertheless, it remains the “lead opinion” as the concurrences refer to it, even if it does not constitute a “majority opinion.”

  2. The most interesting part of this set f three opinions is Prosser’s . He goes to almost ridiculous lengths to emphasize the need to make this a narrow ruling on one judge’s “inappropriate”decision. He seems almost frigtened of referring to the Constitutional issue of jury bias because we wants to avoid pecedent at any cost.

  3. Didn’t anyone notice the irony in Justice Ziegler pointing out what a court should to when faced with conflicts? Took a lot of cajones to put that in writing given her recent ethical lapses in the past.

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