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BENCH BLOG: Promise questions and jury nullification

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC. She can be reached at [email protected]

The ferocity of an alcohol addiction is apparent in the case of Frank Zdzieblowski, a 73-year-old Portage County man who was charged with operating a motor vehicle with a prohibited blood alcohol concentration as a sixth offense less than five months after he was charged with fifth offense intoxicated driving.

The case is legally interesting because the defense of jury nullification intersects with a prosecutor’s elicitation of a promise from jurors during voir dire that they would convict Zdzieblowski if he proved the elements of the crime.

Trial court proceedings

Portage County Circuit Judge Thomas Flugaur presided over the trial. The prosecutor spent much of his mere six-minute voir dire asking jurors just one question which he paraphrased a number of times.

“Raise your hand if you can promise that if you are satisfied beyond a reasonable doubt that the defendant drove with a .02 or higher, that you will find the defendant guilty. If you can make that promise, raise your hand.” All the jurors raised their hands.

The evidentiary portion of Zdzieblowski’s jury trial was short. He stipulated to his prior record of five OWI offenses, and after three witnesses testified, he stipulated that he was driving a motor vehicle with a BAC of .035, higher than his legal limit of .02 as a repeat offender.

During rebuttal closing argument, the prosecutor reminded jurors of their promise to convict if the evidence proved the defendant drove with a BAC above .02. The jury convicted. Zdzieblowski appealed.

Court of Appeals decision

In a decision authored by District 4 Court of Appeals Judge Joanne Kloppenburg, the court first addressed the propriety of asking jurors to promise to convict if the State proves the elements of the crime beyond a reasonable doubt. Finding no Wisconsin law on the point, the court searched other jurisdictions for persuasive guidance.

The Texas court of appeals called this type of question a “commitment question.” It reasoned that it was proper because the commitment required was to follow the law. The New Mexico Supreme Court also concluded that such a “conditional question” was permissible.

On the other hand, the Mississippi Supreme Court considered a prosecutor’s question whether jurors would promise not to consider factors that the law “demands” they consider when deciding whether to return the death penalty. The court found this type of question impermissible because in effect it asked jurors to disregard the law.

From these states’ authority, the Wisconsin Court of Appeals was persuaded that questions which demand jurors’ consideration of only what the law requires are proper in that such questions simply ask jurors to fulfill their duty to follow the law.

Error analysis

Zdzieblowski contended that by eliciting this promise to convict if jurors were satisfied that the elements were proved beyond a reasonable doubt, the prosecutor eroded Zdzieblowski’s “full right” to a trial by jury because it “caused the jury to surrender its power to nullify from the outset of the case.” He asserted that this erosion was plain error.

The state conceded that the prosecutor’s questioning “could be seen as unfair” since the defense cannot respond by eliciting a promise to nullify, that is, to acquit even if the elements of the crime are proved. The state actually suggested that such questioning is a “practice to avoid.” It asserted, however, that any error was harmless.

The court agreed with the state that if the prosecutor’s questioning was error, it was harmless, resting its conclusion largely on the strength of the state’s case: “the evidence establishing the elements … was overwhelming.”

The court also explained that a harmless-error analysis does not include consideration of the jury’s power of nullification.

Interest of justice analysis

Zdzieblowski also asked for a new trial in the interest of justice because he maintained that the real controversy had not been tried. In his view, the jury “entered the jury room having given away its nullification power way back at voir dire.”

The court disagreed. It reviewed the trial transcript and found that the parties fully tried the elements of the crimes and that Flugaur properly instructed the jury.

Additionally, the prosecutor’s mention during rebuttal closing argument of the promise jurors made during voir dire did not prevent the controversy from being fully tried. This is because the reference was brief and the focus of both his closing and rebuttal arguments was the evidence that established the elements of the crime beyond a reasonable doubt.

Observations on “promise” questioning

Taking its cue from the state’s suggestion that promise questioning “may be a practice best avoided,” the court observed that the questions actually asked here were carefully worded to focus only on the scenario of the state actually proving elements beyond a reasonable doubt.

The prosecutor did not stray into how the state might prove the elements or how the defense might undermine the state’s evidence.

The court noted other attempts at promise questioning that would be improper. Examples included using hypothetical facts, “eliciting promises to pre-judge based on references to particular forms or modes of proof, or based on different ways of framing legal standards.”

“In other words, questions that might be reasonably interpreted to lead jurors to think they are committing to reaching a particular factual conclusion, or that they are cabining their consideration of relevant factors regarding an element or defense, might rise to the level of a violation of a defendant’s right to a jury trial.”

In all events, the trial judge has wide authority over the conduct of voir dire, and appropriate pretrial motions or objections can be used to curtail improper voir dire questions.

Commentary

Unfortunately, the court’s closing observations about commitment questioning are not particularly clear or elucidative. As such, they are not that beneficial in providing guidance to the bar or bench.

I also found the decision ineffectively organized, leading to a good deal of repetition. Conciseness depends, in part, on logically organized writing.

On a different note, one can see in the face of the stipulated evidence why the defense intended to pursue jury nullification. Since it is improper to actually ask the jury to nullify, my curiosity about the nature of the defendant’s closing argument is unsatisfied as the decision is silent about this.

Zdzieblowski was sentenced to prison, so he will be spending his winter holidays in forced sobriety. It’s a sad reflection on an elder’s life.


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