2010AP445-CR State v. Sellhausen

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Criminal Procedure
Impartial jury

Where the judge failed to remove his daughter-in-law from the jury panel, the defendant is entitled to a new trial.

“Sharon Sellhausen appeals her jury conviction based on the presence of the presiding judge’s daughter-in-law on the panel of potential jurors. The daughter-in-law was not seated on the jury because Sellhausen’s trial counsel used a peremptory challenge to remove her. Sellhausen argues on appeal that she is entitled to a new trial because the presiding judge should have removed his daughter-in-law sua sponte instead of forcing her trial attorney to either move to strike for cause or exercise a peremptory strike. The State does not dispute that the best practice would have been for the presiding judge to remove his daughter-in-law sua sponte, but argues that there is no prejudice here because the daughter-in-law did not actually sit on the jury. We disagree with the State. The problem here is that it is difficult to measure the precise effect on trial counsel’s conduct during voir dire when a presiding judge’s family member is part of the panel of potential jurors. There is too much of a risk that the situation creates a chilling effect on robust inquiry, inquiry that is oftentimes critical to the selection of an impartial jury. This was the concern of both the lead opinion and the concurring opinion in State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, and although the fact situation is different, that concern continues to percolate here.”

Reversed and Remanded.

Recommended for publication in the official reports.

2010AP445-CR State v. Sellhausen

Dist. II, Sheboygan County, Stengel, J., Brown, J.

Attorneys: For Appellant: Lichstein, Byron C., Madison; For Respondent: Kassel, Jeffrey J., Madison; DeCecco, Joseph R., Sheboygan

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