The right to exercise peremptory challenges in state court is determined by state law. The U.S. Supreme Court has long recognized that peremptory challenges are not of federal constitutional dimension. States may withhold peremptory challenges altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009). When a juror makes a clear statement that indicates the juror relied on racial stereotypes or animus to convict a criminal defendant, the 6th amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Pena-Rodriguez v. Colorado, 580 U.S. 206, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017). The constitution forbids striking even a single prospective juror for a discriminatory purpose. When all of the relevant facts and circumstances taken together establish that a peremptory strike of a prospective juror was motivated in substantial part by discriminatory intent, a Batson, 476 U.S. 79 (1986), violation has occurred. Flowers v. Mississippi, 588 U.S. ___, 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019). If the issue of jury bias surfaces during or before trial, it is the trial judge’s responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. The question is whether, given the indications of jury bias, the judge’s inquiry was adequate. Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. Oswald v. Bertrand, 374 F.3d 475 (2004). The 6th amendment to the U.S. Constitution doesn’t apply to fact finding that doesn’t increase a prisoner’s original sentence. A denial of parole doesn’t increase a sentence; it’s a decision not to shorten the portion of the sentence that is served in prison. Heredia v. Blythe, 638 F. Supp. 3d 984 (2022). Criminal Law—Jury—Unanimous Jury Verdict Is Not Constitutionally Required in State Criminal Cases. Johnson. 1973 WLR 926.
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Trials. Anderson. 1992 WLR 751.
speedy and public trial
A defendant must demand a trial before requesting dismissal for lack of a speedy trial. When delay is caused by numerous proceedings in federal court, dismissal will be denied in the absence of any showing of prejudice. State v. Kwitek, 53 Wis. 2d 563, 193 N.W.2d 682 (1972). A delay of five weeks because witnesses were hospitalized, when the defendant was out on bail, did not amount to a failure to receive a speedy trial. Taylor v. State, 55 Wis. 2d 168, 197 N.W.2d 805 (1972). Failure to demand a speedy trial weighs less heavily against a defendant unrepresented by counsel. Because the defendant believed the charge had been dropped, it could not be said that a speedier trial would have prevented anxiety and concern about the pending charges. Hipp v. State, 75 Wis. 2d 621, 250 N.W.2d 299 (1977). The speedy trial provisions of the constitution are designed to prevent oppressive pretrial incarceration, anxiety and concern by the accused, impairment of defenses, and the elimination of the possibility that concurrent sentences will be imposed. Green v. State, 75 Wis. 2d 631, 250 N.W.2d 305 (1977). The controlling case concerning the right to a speedy trial is Barker, 407 U.S. 514 (1972). A 15 month delay was not prejudicial under the facts of the case. Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d 354 (1977). A delay of 84 days between the defendant’s first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise a presumption of prejudice. State v. Mullis, 81 Wis. 2d 454, 260 N.W.2d 696 (1978). Mandatory closure of a hearing solely at the request of the complaining witness over the objection of the defendant violates the right to a public trial. State ex rel. Stevens v. Circuit Court, 141 Wis. 2d 239, 414 N.W.2d 832 (1987). The speedy trial right attaches when the complaint and warrant are issued. A pretrial determination that the right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay, 155 Wis. 2d 202, 455 N.W.2d 233 (1990). The right to a speedy trial extends from the time of arrest or criminal charging up through the sentencing phase of prosecution. A defendant must show substantial and demonstrable prejudice for a postconviction violation of this right to be found. State v. Allen, 179 Wis. 2d 67, 505 N.W.2d 801 (Ct. App. 1993). Whether there has been a violation of the right to a speedy trial depends on a balancing test considering: 1) the length of delay; 2) the reason for the delay; 3) the defendant’s assertion of the right; and 4) prejudice to the defendant. State v. Borhegyi, 222 Wis. 2d 506, 588 N.W.2d 89 (Ct. App. 1998), 98-0567. The speedy trial clause does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. The statute of limitations is the primary protection against stale charges. A delay between the commission of a crime and the subsequent arrest of a defendant may violate due process if actual prejudice has been suffered as a result of the delay and the government caused the delay for an improper purpose. State v. Blanck, 2001 WI App 288, 249 Wis. 2d 364, 638 N.W.2d 910, 01-0282. The length of delay is to some extent a triggering mechanism to a speedy trial determination. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry. In determining the reasons for a delay, the initial inquiry is who caused the delay. Delay reasonably attributed to the ordinary demands of the judicial system is neither chargeable to the state or defendant. A missing witness presents a valid reason for delay. The state is charged with institutional delay such as when the trial court took responsibility for a delay because it had taken a motion for access to the records off its calendar. State v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03-0603. When filed charges are dismissed without prejudice and a second complaint subsequently filed, the time period between the dismissal and the filing of the second complaint is not included in determining whether the constitutional right to a speedy trial is violated. The right to a speedy trial is not primarily intended to prevent prejudice to the defense caused by passage of time. That interest is protected primarily by the due process clause and by statutes of limitation. The right is to minimize the possibility of lengthy incarceration prior to trial, to reduce the impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. Once charges are dismissed, the speedy trial guarantee is no longer applicable. State v. Urdahl, 2005 WI App 191, 286 Wis. 2d 476, 704 N.W.2d 324, 04-3014. The defendant’s right to a public trial was violated when the courthouse doors were locked at 4:30 P.M., pursuant to county policy, and the public was denied access to the courtroom while the defendant presented the defendant’s case and the state presented its rebuttal. State v. Vanness, 2007 WI App 195, 304 Wis. 2d 692, 738 N.W.2d 154, 06-2535. Although a presumption of openness exists, the right to a public trial is not absolute. The closure of a trial is trivial and does not implicate the 6th amendment if the closure does not implicate the values served by the 6th amendment: 1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury. A circuit court’s exclusion of every family member except the defendant’s mother, who did not understand English, plainly implicated the values served by the right to a public trial. State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07-0005. Closure of a criminal trial is justified when four conditions are met: 1) the party who wishes to close the proceedings must show an overriding interest that is likely to be prejudiced by a public trial; 2) the closure must be narrowly tailored to protect that interest; 3) alternatives to closure must be considered by the trial court; and 4) the court must make findings sufficient to support the closure. Generally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure, but it was not necessary under the facts of this case. State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07-0005. Although a 14-month delay was presumptively prejudicial, that did not end the court’s analysis. The defendant in this case was not actually prejudiced by the delay because the defendant was already serving more than two life sentences for a conviction in a homicide case. The delay did not cause the defendant’s pretrial incarceration; the defendant’s homicide sentence would have kept the defendant in prison anyway. State v. Lock, 2013 WI App 80, 348 Wis. 2d 334, 833 N.W.2d 189, 12-1514. There was no violation of the right to a speedy trial when the entirety of the delay in bringing the defendant to trial occurred to accommodate the defendant and the defense. State v. Provost, 2020 WI App 21, 392 Wis. 2d 262, 944 N.W.2d 23, 18-1268. A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. In determining whether a particular defendant has been deprived of the defendant’s right, courts should consider four factors: 1) the length of delay; 2) the reason for the delay; 3) the defendant’s assertion of the right; and 4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).