Argument VI and VII

Argument VI
THE TRIAL RECORD ASCERTAINS THAT JUROR GRETCHEN L. WAHL, NO. 276, POSSESSED SUBJECTIVE BIAS SENTIMENTS IN VOIR DIRE BASED ON AN INTERRACIAL INCIDENT TRANSPIRING IN 1983, WHEREIN, HER BROTHER-IN-LAW'S SISTER WAS KILLED BY A FIREARM IN A DRIVE-BY SHOOTING, ADMITTING ON THE RECORD A BIASNESS AFFECTING HER IMPARTIALITY AT TRIAL.

DURING VOIR DIRE, JUROR NO. 276, GRETCHEN WAHL (A:176-178), WAS TAKEN INTO THE JUDICIAL CHAMBERS AND WAS QUESTIONED ABOUT HER IMPARTIALITY, BECAUSE OF AN EXPERIENCE THAT WAS TRAGIC IN HER FAMILY IN 1983, WHEN HER BROTHER-IN-LAW'S SISTER WAS KILLED IN A DRIVE-BY SHOOTING. (A:179: 1-14) .

DUE TO THE TRAGIC EXPERIENCE, SHE STATED THAT HER JUDGMENT WOULD BE INFLUENCED (A:179: 1). THE COURT INQUIRED IN WHAT WAY SHE WOULD BE INFLUENCED (A:179: 7-8), WHEREAS, GRETCHEN WAHL RESPONDED, "I'VE SEEN THE IMPACT THAT THESE THINGS HAVE ON FAM­ILIES." (A:179: 9-10)

THE TRIAL COURT EXPLAINED TO GRETCHEN WAHL THAT HER TRAGEDY HAD NOTHING TO DO WITH THE PARTICULAR INSTANT CASE '(A: 179: 15-22), BUT THE TRIAL COURT NEVER ON THE RECORD DEFINED HOW SHE WOULD BE INFLUENCED IN THE CASE BY THE EVIDENCE PRESENTED NOR IF THE EVIDENCE AS PRESENTED WOULD EVIDENCE PASSION TOWARDS THE VICTIM UNDER THE SUBJECTIVE STANDARD.

SUBJECTIVE BIAS IS REVEALED THROUGH THE WORDS AND THE DE­MEANOR OF THE PROSPECTIVE JUROR. STATE V. CARTER, 250 WIS. 2D. 851, 641 N.W. 2D. 517 (2002).

GRETCHEN WAHL ADMITTED THAT SHE WOULD BE INFLUENCED BY THE STATE'S EVIDENCE, WHICH IS A PREJUDICE, AND WHEN A JUROR EXPLICITLY ADMITS TO A PREJUDICE OR THE INABILITY TO SET ASIDE A PREJUDICE MOST FREQUENTLY THE SUBJECTIVE BIAS WILL BE REVEALED THROUGH THE JUROR'S DEMEANER WHICH THE RECORD DOES NOT REFLECT CARTER ID. AT 520 [9].

GRETCHEN WAHL STATED THAT SHE WOULD BE INFLUENCED IN THE CASE, WHICH CONCEIVABLY CONCLUDES THAT SHE HAD AN ADVERSE REAC­TION TO THE EVIDENCE THAT WOULD BE CHALLENGABLE FOR CAUSE, LEAD­ING TO HER REMOVAL IN THE CASE.

THE CIRCUIT COURT IN THE INSTANT CASE MADE NO REFERENCE IN ITS OBSERVATIONS OF WAHL'S DEMEANOR TO SUPPORT ITS CONCLUSIONS, NOR DID THE STATE OFFER ANYTHING ON THE RECORD TO INFER WAHL'S IMPARTIALITY AFTER SHE ADMITTED SHE WOULD BE INFLUENCED BY THE EVIDENCE (A:179: 1-14) ID. AT 520[13] .

IN THE INSTANT CASE, DEFENSE COUNSEL FAILED TO FURTHER QUESTION WAHL'S STATEMENT OF ADMITTED INFLUENCE OR BIAS. DEFENSE COUNSEL FAILED TO MOVE TO STRIKE WAHL FOR CAUSE AND FAILED TO USE A PEREMPTORY CHALLENGE TO REMOVE WAHL FROM THE JURY PANEL. A GUILTY VERDICT WITHOUT TWELVE IMPARTIAL JURORS RENDERS THE OUTCOME UNRELIABLE AND FUNDAMENTALLY UNFAIR. DEFENSE COUNSEL'S FAILURE TO ACT TO REMOVE AN INFLUENCED WAHL WHO ULTIMATELY SAT ON THE JURY CONSTITUTES DEFICIENT PERFORMANCE RESULTING IN PRE­JUDICE TO THE DEFENDANT, REQUIRING REVERSAL OF THE CONVICTION AND REMAND THE MATTER FOR A NEW TRIAL. CARTER ID. 521 [15].

Argument VII
AN UNNAMED JUROR PROVIDED INCOMPETENT RE­SPONSES ON VOIR DIRE TO MATERIAL QUESTIONS ALERTING THE TRIAL COURT AFTER TWO (2) DAYS OF TRIAL THAT SHE KNEW STATE WITNESSES, IODIUS BARKER- AND SUSAN FOSTER, SHOWCASING SUBJECTIVE BIAS TOWARDS THE DEFENDANT.

AN UNNAMED JUROR AFTER TRIAL PROCEEDINGS OF TWO (2) DAYS, SUA SPONTE, STATED SHE KNEW STATE WITNESSES, IODIOUS BARKER AND SUSAN FOSTER (A:180: 4-16). THE TRIAL COURT ASKED A BROAD QUES­TION TO THE JUROR "IF THESE WITNESSES HAVE ANY ROLE IN THIS MATTER,' WHO THEN REPLIED, "NO." (A:180: 17-20) SUSAN FOSTER AND IODIUS BARKER BOTH TESTIFIED AT THE TRIAL. (A:181-183) THE COURT, THE STATE AND DEFENSE COUNSEL ASKED OF THE JURORS ON VOIR DIRE, IF THEY KNEW ANY OF THE WITNESSES THAT THEY HAD NAMED THAT WOULD BE CALLED TO TESTIFY AT THE TRIAL, WHEREAS, THE UNNAMED JUROR DID NOT ANSWER TRUTHFULLY ON VOIR DIRE THAT SHE WAS ACQUAINTED WITH SUSAN FOSTER AND IDOIUS BARKER FOR SEVERAL YEARS. (A:180: 4-16)

IN ORDER TO BE AWARDED A NEW TRIAL FOR A JUROR'S FAILURE TO REVEAL INFORMATION ON VOIR DIRE, THE DEFENDANT MUST DEMOSTRATE THAT THE JUROR INCORRECTLY OR INCOMPLETELY RESPONDED TO QUESTIONS OF MATERIALITY ON VOIR DIRE AND IT'S MORE SUBSTANTIVE THAN NOT THAT UNDER THE FACTS AND CIRCUMSTANCES SURROUNDING -THE CASE, THE JUROR WAS BIASED AGAINST THE DEFENDANT. SEE STATE V. MESSETT, 185, WIS. 2D. 254, 518 N.W. 2D. 232 (1994).

THE PROPER TIME TO DETERMINE WHETHER A JUROR IS IMPARTIAL IS ON VOIR DIRE EXAMINATION. NOT ONLY DOES THE EFFECTIVE USE OF VOIR DIRE HELP ENSURE THAT THE PARTIES RECEIVE A FAIR TRIAL. IT'S A PRACTICAL NECESSITY GIVEN THE COSTS WHICH RESULT WHEN JURY VERDICTS ARE CHALLENGED DUE TO ALLEGED SUBJECTIVE BIAS WHICH SHOULD'VE BEEN REVEALED ON VOIR DIRE. THE VOIR DIRE PRO­CESSES RELIES ON THE ACCURACY OF THE RESPONSES PROVIDED BY PRO­SPECTIVE JURORS. OBVIOUSLY, THERE'S NO WAY TO GUARENTEE THAT JURORS WILL RESPOND HONESTLY AS IN THE CASE OF THE UNNAMED JUROR HAVING A LENGTHY ACQUAINTANCE WITH IODIUS BARKER AND SUSAN FOSTER (A:180: 1-14).

THE BIASNESS OF A JUROR CAN BE SUBJECTIVE OR OBJECTIVE. THE QUESTION OF WHETHER A PROSPECTIVE JUROR IS BIASED AND SHOULD BE DISMISSED FOR CAUSE IS A MATTER OF THE CIRCUIT COURT'S DIS­CRETION. THE CIRCUIT COURT DID NOT PROPERLY EXERCISE ITS DISCRE­TION IN ITS DETERMINATION OF JUROR IMPARTIALITY, SIMPLY. BY PLAC­ING on the record' the statement, "if these witnesses have any ROLE IN THIS MATTER." (A : 180 :1 7-20 ) THE QUESTIONS.SHOULD .HAVE BEEN PLACED ON THE RECORD TO THE UNNAMED JUROR: .

1. WHY DIDN'T YOU ANSWER THE MATERIAL QUESTION ON VOIR .DIRE THAT YOU KNEW IODIUS BARKER AND SUSAN FOSTER WHEN ASKED IF YOU KNEW ANY OF THE STATE'S WITNESSES?

2. WHY DID YOU WAIT UNTIL TWO (2) DAYS INTO THE TRIAL TO APPRISE THE COURT THAT YOU WERE ACQUAINTED WITH THESE TWO WIT­NESSES?

3. SINCE THESE WITNESSES HAVE GIVEN TESTIMONIES, DOES IT EFFECT YOUR ABILITY TO WEIGH AND GIVE CREEDANCE TO THE EVIDENCE FAIRLY?

IF THESE QUESTIONS WERE ON THE RECORD, THEN THE ISSUE OF WITHHOLDING MATERIAL INFORMATION WOULD NOT BE AT ISSUE. THE UNNAMED JUROR ACQUAINTANCE WITH THE TWO WITNESSES WAS NOT AN OVERSIGHT OR A PRODUCT OF CONFUSION, BUT RATHER, A CONSCIOUS ATTEMPT TO MISLEAD ALL PARTIES. THE RECORD DOES ASCERTAIN THAT THE UNNAMED JUROR'S ACQUAINTANCE WITH THE TWO STATE WITNESSES.

THE RECORD DOES NOT ASCERTAIN, CONVINCINGLY OR SATISFACTORITY, THAT THE CIRCUIT COURT MADE THE CORRECT LEGAL DETER­MINATION OF WHETHER THE UNNAMED JUROR'S ACQUAINTANCE WITH IODIUS BARKER AND SUSAN FOSTER OVERCOMES THE PREJUDICIAL ERROR REQUIRING REVERSAL OF THE VERDICT. SEE AFTER HOUR WELDING, 108 WIS. 2D. 734, 741, 324 N.W. 2D. 686 (1982).