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BENCH BLOG: Judge and juror

By: Jean DiMotto//March 27, 2017//

BENCH BLOG: Judge and juror

By: Jean DiMotto//March 27, 2017//

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

A recent jury summons prompted to me to think about judges being called to jury service.

Clerks of Circuit Court obtain lists from the Department of Transportation identifying Wisconsinites who have a driver license or a Wisconsin ID. Such lists obviously include judges.

The clerks randomly issue summonses from those lists. Summoned jurors who report for duty are then randomly assigned to courts needing a jury. Nothing in these procedures excludes judges.

To some, this is as it should be, since judges have the same civic obligation as others to serve on juries, just as they do to vote. To others, however, it’s a “waste of time.”

“The odds of getting picked are negligible and you have to get someone to cover your calendar on the date of selection,” says Kenosha County Circuit Judge David Bastianelli, who has been summoned and assigned to venire panels three times, but has been struck by peremptory challenges each time.

Being identified as a judge

Some presiding judges “out” the juror-judge by addressing them directly as judge, others by asking a question such as, “Will the fact that you’re my judicial colleague impair your ability to be fair and impartial as a juror?” Or, “You won’t be acting as judge if you’re a juror, will you?”

Other times, the juror-judge self identifies during the portion of voir dire asking about each juror’s occupation.

Still other times, the judge remains anonymous to the other jurors because the judge’s occupation is contained in a written juror questionnaire. Juan Colás, now a Dane County Circuit judge, then a prosecutor, kept it that way when the late Justice Patrick Crooks was assigned to a venire panel.

When Crooks responded affirmatively to the question, “Have any of you heard of Chapter 980 or the phrase ‘sexually violent person,’” Colás adroitly followed with, “and that was through your job, correct?” rather than identify Crooks as a Supreme Court justice. Crooks was struck from the jury panel.

Should judges be jurors?

The big question is whether judges should serve on a jury.

Some attorneys feel so strongly against it that they ask that the juror-judge be struck for cause. They are of the mind that a judge “knows the score” and will “see through” their client’s case. Or they have experienced the judge’s rulings in other cases and view them as tending to lean toward to one side or the other. Still others are intimidated by having a judge on the jury.

Some presiding judges have granted this motion in the belief that the juror-judge should not have to delay cases on their own dockets because they are serving as jurors. Yet, the fact is that busy pediatricians, open-heart surgeons and at-home parents have served as jurors. So can judges.

Others, like Milwaukee County Circuit Judge Joe Donald, who presided over voir dire for the venire panel I was assigned to, deny such a motion in the absence of a showing of bias.

The latter is the better course, since a judge is not objectively biased, as defined in State v. Faucher, by virtue of his or her occupation. If anything, judges’ and jurors’ roles are similar in that they are both neutral and impartial decision-makers.

Foreperson or not

Jurors tend to be intimidated by and deferential to a judge, so the danger in a judge being the foreperson is that these tendencies are accentuated. Jurors may not express their opinions and instead follow those of the judge-foreperson.

Some of the judges who have served as jurors after surviving strikes for cause and peremptory challenges include Milwaukee County Circuit Judges Dennis Cimpl, John DiMotto and Patrick Madden when he was retired. Reserve Judge Virginia Wolfe served in Dane County.

Cimpl, DiMotto and Madden asked not to be forepersons. Wolfe also made this request, but no other juror would step up to the plate.

She reports that one of the jurors wanted to talk about witnesses before the case was submitted to the jury for deliberation. She repeatedly reminded him that this was strictly verboten, but he didn’t stop until she told him she’d report this to the judge. Perhaps that show of authority with a difficult juror sealed the deal for her to be foreperson.

Wolfe reported that “it turned out to be advantageous” for her to be the foreperson, “as I could direct the deliberations to get everyone participating without disclosing much of my opinion until we had a thorough discussion.”

This describes an effective manner for a judge to be a foreperson.

Sitting back and not dominating the discussion is a way for a juror-judge to avoid exerting disproportionate power during deliberations.

Also in the same vein, anonymous written votes may be a better procedure than hand votes as a way to prevent jurors from being unduly influenced by the juror-judge’s vote.

Commentary

Judges meet the threshold requirements to be a juror, and being a juror helps a judge get an inside view of jury service, particularly the amount of waiting time jurors experience.

But it is a matter of attorney preference for judges to actually serve as jurors since many are struck by attorneys’ use of peremptory challenges.

Judges on juries have the opportunity to bring their impartiality and balanced decision-making to bear during deliberations, as long as they guard against an outsized influence on a jury by virtue of their occupation.

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