EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, May 2, 2009

Mommie Dearest: Supreme Court Of Wisconsin Gives Appellant New Trial After Judge Failed To Grant Motion to Strike Judge's Mother From The Jury Pool

You are a judge, and your mother is a prospective juror. Based upon the relationship, defense counsel moves to strike the mother for cause. The prosecution opposes the motion. What do you do? Well, according to a circuit court judge in Wisconsin, you deny the motion. And according to the recent opinion of the Supreme Court of Wisconsin in State v. Tody, 2009 WL 1151985 (Wis. 2009), that was the wrong decision.

In Tody, Mark H. Tody, Jr. was charged with taking and driving a vehicle without the owner's consent, as a party to a crime. During the jury selection process, it was revealed the a prospective juror was the judge's mother, leading defense counsel to move to strike her for cause, claiming “we have a Ceaser's [sic] wife situation here where even the very fact of the close relationship I think, it's per seprejudicial matter."   

Defense counsel seemed concerned that the circuit court judge would misinterpret defense counsel's motion as implying criticism of the judge's mother. Defense counsel asked that the judge's mother be excused for cause from the jury pool “with all due respect” and stated that he “certainly [was] not in any way implying that [the judge's mother] cannot be a fair and impartial juror....” Defense counsel also stated that the situation regarding the judge's mother was a "very sensitive matter." 

Meanwhile, the prosecutor opposed the motion, opining that the judge's mother had "raised an individual who looks at facts and tries to find the truth" and that the judge's mother presumably would do the same as a juror." The judge suggested a preference for granting defense counsel's motion, stating that he was "not necessarily excited about having [his mother] on the panel" and acknowledging that he “[could] see the possibility of questions arising” and particularly worrying that he might “be called into a position where I would have to rule on some type of juror misconduct involving my mother[.]" Nonetheless, the judge reluctantly denied the motion, concluding, “I don't think I have any legal basis for excusing her." 

Subsequently, neither side used a peremptory challenge on the mother, and she served on the jury that convicted the Tody. Thereafter, Tody appealed, claiming, inter alia, that the judge's (in)action violated his right to an impartial jury under the Sixth Amendment of the U.S. Constitution and Article I, Section VII of the Wisconsin Constitution. And the Supreme Court of Wisconsin agreed, concluding that

[t]he circuit court judge erroneously concluded that although there were practical reasons for striking his mother from the jury, he had no legal basis for doing so. The correct principle of law that should have guided the circuit court judge is that a circuit court judge should err on the side of dismissing a challenged juror when the challenged juror's presence may create bias or an appearance of bias.  

And the court found such bias, noting that

[t]he judge's mother has an interest in the case, namely her familial relationship with the judge, that is extraneous to the evidence on which the jury is to base its decision. A reasonable person in the position of the judge's mother would not have been able to set aside her relationship to the presiding judge when discharging her duties as a juror.

Indeed, the court was able to reach this conclusion without a finding of actual bias by the mother because "[a] presiding judge's mother as a juror is a special circumstance so fraught with the possibility of bias that objective bias must be found regardless of the particular juror's assurances of impartiality." Furthermore, because the presence of a biased juror is a structural error not subject to a harmless error analysis, the court was automatically able to award Tody a new trial.

(Hat tip to my colleague Dave Schwartz for the link)



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