3.Reconsideration of Motion to Excuse Seated Juror
8 linesTHE COURT: Before we break, Mr. Strang, I understand you wish to ask the Court to reconsider a previous motion made by the defense concerning the request to excuse a juror.
MR. STRANG: I do. I will not name the juror, but this is the juror we have discussed before, who previously served on a civil jury, in a lawsuit brought by a witness here. And I think I can name the witness without disclosing too much. The witness was Lieutenant -- I'm sorry, Detective David Remiker of the Manitowoc County Sheriff's Office.
As I understand, some years ago, it's a 1999 civil lawsuit, Detective Remiker sought some compensation for injuries he alleged in connection with an automobile accident. And our juror sat as a juror at the trial of that civil action. She was among those who voted for the jury verdict in that case.
And I don't -- I didn't look here to see whether that was a unanimous civil verdict, or a 5/6ths civil verdict. But my recollection is that when she was questioned about it, she acknowledged that she voted either with all the other jurors or with the majority that determined the verdict in the case.
We went back to -- Not -- Not -- I shouldn't say we, that's a royal we. Mr. Buting and I asked our defense investigator, who is not a lawyer, to go look at the file in the earlier civil case, and he did that.
Copied the Summons and Complaint, gave us copies of the minutes from at least some of the days of the trial and the special verdict form. And, then, also copied an excerpt of testimony from one witness. I think she -- a medical doctor who testified for the plaintiff, Detective Remiker.
And that's why I asked the Court yesterday to obtain the entire file in Mr. Remiker's case and bring it here so the parties could look at it. The Court did that, the box is in chambers. It's about the size of a box of 10 girl scout cookie boxes that I got recently in the mail.
And I flipped through it. I don't know whether counsel for the State have availed themselves of that opportunity, but the Court was kind enough to obtain the file and it's in chambers. Here's what appears, at my glance through.
The defense that the insurance company or the other -- the driver, who apparently caused the accident in that case, presented to the jury, was that Detective Remiker was malingering and ought not be compensated, or ought not, at least, obtain the full compensation that he sought. And it looks to me, again, at a cursory glance, like much of the trial was fought over whether Detective Remiker was malingering or not, about the lower back injury that he described.
In that sense, his credibility was critically at issue. And this is -- this is just a real nice tight example of that. And I'm reading from pages 11 and 12 of the testimony of the -- a plaintiff's expert, Dr. Diana Lampsa, L-a-m-p-s-a. This is a partial transcript of proceedings in the civil case. Beginning at line 10 on page 11 of the partial transcript:
Question: Do you understand that Dr. Dahl, D-a-h-l, at one point in his statement of opinions, used the term malingerer to refer to Mr. Remiker?
Answer: Yes.
Question: Would you describe or define, for the jury, what's meant by that term?
Answer: Well, malingering is basically lying. Malingering is basically lying for specific result, like a person might malinger if they are lying to get out of work, or if they are lying to get money in a court settlement, you know, making up symptoms, or exaggerating physical symptoms for a specific gain. It's a specific kind of lying.
Question: Can everyone hear Dr. Lampsa? I think everyone is comfortable with your voice level there.
Answer: Okay.
Question: Do you believe that Mr. Remiker is a malingerer?
Answer: No, the kinds of comments I just made a couple minutes ago, I described somebody who is absolutely opposite of a malingerer. He's, you know, very straight forward, straight shooter, just an honest kind of job, kind of guy, my impression. Likes sports. Likes, you know, to me, the profile -- I can't remember if he was a boy scout or not, but the kind of guy who's in the boy scouts and mom and apple pies, totally a straight character. So nothing like that.
And evidently Dr. Dahl, was the defense medical expert in that case, and that's what I get from the context. So that, it looks to me, is like -- like a large part of the trial issue was Detective Remiker's credibility. Clearly, when the jury returned a verdict of over $170,000, that credibility determination was resolved in Detective Remiker's favor. And this juror was part of that credibility determination. So the argument, again, is that, because of the ritual way in which we instruct jurors to decide the credibility of witnesses here, and we have argued this afternoon, at some length, over Pattern Instruction 300, in criminal cases. And what should be added and what should be considered and what's fair game in determining credibility.
Because of that ritual way in which we instruct jurors, as judges of the fact -- of the facts, to determine credibility, I think this juror, now, is objectively biased. She's gone through that ritual, that process, as a judge of the facts, once, within the last seven years, as to Detective Remiker.
His credibility matters here too. And ought to be considered on the trial record here, just like every other fact ought to be determined on the trial record here, supplemented only by a juror's common sense and experience. Her experience proves this special role that we occasionally ask people to fill, as a judge of the facts, in a lawsuit.
And the determination of Detective Remiker's credibility, on a whole different set of facts, was not apparently an incidental issue in the prior case. It's not incidental here either. He's a fairly important witness. I played a clip of him in the opening statement, my opening statement, a clip of a dispatch discussion, that went right to our theory of investigative bias and tunnel vision.
He testified here. He offered a statement of the defendant, of which neither the State nor the defense had prior notice. He is one of the people who met with Mr. Avery on November 4. He's with the sheriff's department that we accused as being the source -- of the original source of the bias against Mr. Avery. He was involved actively in the identification and collection of evidence, not just for a week in November, 2005, but again, on March 1 and March 2 of 2006.
In fact, I think on this record, he's the only Manitowoc County Sheriff's employee who was actively involved in collecting or identifying evidence in March, 2006, in the search of Mr. Avery's garage. I don't think he was involved at all in the search on the same days in March, 2006, in Mr. Avery's home; that's my recollection of the testimony. But I think he did play a role in the garage. May have been the only Manitowoc officer inside the evidence tape, so to speak, in March of 2006.
So the juror did the right thing by bringing the issue to the Court's attention. I will accept, because it's for the Court to decide, from her demeanor and her answers, whether she's subjectively biased and the basis of her prior role with Detective Remiker and knowledge of him.
But I think there is objective bias here. This isn't like a casual acquaintance. It isn't like somebody we might size up because we run into them at the grocery store. This is a judgment the juror once has made and I think is unlikely to reconsider.
As I noted by a loose analogy the first time I argued this, even with professional judges, judges of the law, when they are wrong in their judgment and a higher court reverses them in this state and sends the case back down, there's enough of a presumption that the judge will be reluctant to reconsider his or her earlier judgments in the role of judge of the law, that the parties are entitled to a substitution, without a showing of prejudice again, on remand, under Wisconsin law.
There are in, again, a loosely analogous context, there are United States Supreme Court decisions that consider the question, for example, of vindictive resentencing, after a reversal on appeal and a remand and the defendant gets a higher sentence. There's constitutional law on that, because the Supreme Court recognizes the institutional bias that all of us acquire, in favor of our earlier judgments once thoughtfully rendered.
And it's asking a lot to expect a lay person in -- in the special role of judge of the facts, to decide credibility this time, without considering the judgment she made about credibility the last time she was a juror in a case involving Detective Remiker. So I think that's asking too much. It's not reasonable to expect her to be able to do that. I think she's objectively biased here, without casting aspersions on her character, I don't. To the contrary, she was right to raise the issue. She was conscientious to raise the issue. But now that it's out, and now that we know something more about the 1999 civil case involving Detective Remiker, I think she should be relieved of further duties on the grounds of objective bias.
THE COURT: Does the State wish to be heard?
MR. FALLON: Yes, thank you. We would oppose the excuse -- the striking for cause or the excuse of this juror. We're going to begin with our presentation with the law. A prospective juror is objectively biased if a reasonable person in the prospective juror's position, objectively, could not judge the case in a fair and impartial manner. That's a citation from State vs. Mendoza, 227 Wis. 2d, 838, with a citation to State vs. Erickson, E-r-i-c-k-s-o-n, at 227 Wis. 2d, 758.
In State vs. Faucher, at 227 Wis. 2d, 700, Supreme Court noted, quote, The circuit court is particularly well-positioned to make a determination of objective bias and it has special competence in this area. It is intimately familiar with the voir dire proceeding and is best situated to reflect upon the prospective juror's subjective state of mind, which is relevant, as well as to the determination of objective bias.
Finally, as a backdrop, we ask the Court to once again consider State vs. Kiernan, K-i-e-r-n-a-n, at 227 Wis. 2d, 736. And that case was -- dealt with the concept of whether a veteran juror, as it was known at that time, could set aside prior opinions or knowledge in Judge Kiernan's case, solely on the evidence presented at her trial.
I think those are the appropriate legal standards. The most recent case on objective bias is State vs. Dale Smith, 2006 Wisconsin 74. And that was, I believe, the case of the administrative employee of the District Attorney's Office out in juvenile court sitting as a juror in a felony case in downtown Milwaukee.
Those are our legal standards upon which the Court must make a determination of objective bias. Now, let's look at the facts and apply them to the law here. First and foremost, the juror sent a note. The juror is the one who called this matter to the attention of the parties, having recognized Detective Remiker after seeing him testify, and not beforehand.
The Court, at the request of the parties, conducted a voir dire of the juror. The juror reported no recollection of that case whatsoever. But when pressed, all that the juror could recall is something about the left lumbar being the focal point of the trial. All that could be recalled was the nature of the injury.
The juror could not recall whether Detective Remiker even testified. Could not recall the amount of damages awarded to Detective Remiker. Did recall that he did prevail and that he was awarded some money and she thought perhaps $100,000. But she could not recall any of the circumstances. She could not recall the length of the trial, or as I already said, the focus of the trial, a trial that occurred six, to possibly seven years before this trial.
I think it's apparent and a reasoned inference could be drawn that there have been no contact whatsoever between the juror and Detective Remiker in the intervening years. So applying the standards, then --
Oh, there's one other distinction. While we do not diminish the significance, as it were, of Detective Remiker's role in this case, the case against Steven Avery will clearly not rise or fall solely on the basis of the testimony offered by Detective Remiker.
Whereas, in contrast, if everything is as counsel represents, and I believe it to be the case, Detective Remiker's role in his own case was far greater, far more significant than this case. And I say that because, then we have to evaluate the fact that that's true. And the juror has no recollection of that.
Then, let's take that reasonable juror standard, a juror in this position, a juror who has no memory of those facts or circumstances and were somehow to conclude that she's objectively biased, and as counsel would suggest, in favor of Detective Remiker, because in that case 10, or perhaps 12 other jurors, found his version of the events credible and, thus, awarded him damages for the accident in which he was injured. I think not. There is no basis for that.
Then, you couple that fact, with the representation that the prospective juror made, as I recall, during the voir dire. The juror reported that no other juror was aware of the service previously performed. The Court asked, in fact, I believe, instructed the juror, not to advise any of the other jurors in this case of her previous experience with respect to Detective Remiker. All of that, coupled with the fact that this juror came forward on their own, I think it's clearly a reasonable inference that if a problem did develop, if circumstances did come to light, that somehow the great light of memory was revealed to her, the juror would tell us. But we already have the assurance of this juror that that would not affect deliberations in this case, the assurance that that knowledge would not be imparted to any other juror.
And this is the subjective component here that counsel alluded to and is reflected in the case law, the Court had the opportunity to assess that juror's credibility. And under all of these circumstances, the Court made a reasoned determination at the time, which we ask the Court to sustain now, is that the juror is not objectively biased or subjectively biased. And we would ask the Court to deny the request.
THE COURT: Mr. Strang.
MR. STRANG: In reply, let me -- let me try this. I wouldn't be offering analogies if I had something specifically on point, but I don't think either Mr. Fallon or -- and I know I haven't found anything directly on point. This appears to be a pretty new issue.
But let me try this. Let's suppose, instead, that this juror were a high school teacher or a college professor. And when Detective Remiker had walked in and testified, the juror had said, oh, my gosh, I remember now, six or seven years ago he was in my class. He was a student of mine. I had forgotten the name, but I remember the face. He was a student of mine and, you know, now that I think about it, I think I wrote him a letter of recommendation. And the juror tells us that. And we explore and we find out that it was a glowing letter of recommendation.
Now, I don't know that I believe this juror here on the issues that go to subjective bias and what she does or doesn't remember, but the Court gets to decide whether or not it believes the juror. And that's why, primarily, I'm relying on objective bias.
But let's suppose the Court was satisfied in my example of the teacher/professor who writes the letter of recommendation for the student from six or seven years ago and now remembers. And the Court is not to remember much more than, I wrote him a letter of recommendation.
Well, if we dug a little further into the file and we found that it -- not only was it a glowing letter of recommendation -- or letter of recommendation, it was a glowing one. And if we dug further and found that there were people specifically asking the teacher, or the professor, not to write the letter of recommendation, urging upon the teacher the fact that she ought not write a letter of recommendation for this student.
I can't imagine that the Court wouldn't find objective bias and excuse the juror. Well, here, by way of analogy, a $170,000 verdict, in the face of opposition by the defense in this case, is a pretty glowing letter of recommendation. And is a glowing letter of recommendation endorsed by this juror, in spite of, evidently, you know, witnesses and arguments from counsel, that the letter of recommendation, so to speak, the verdict, ought not be delivered.
Just, again, setting aside subjective bias, which the Court can judge, objectively, this doesn't look reasonable for the outside person to say, what you ruled for this guy once as a juror and now you are here, supposed to be judging him again, as a matter of his credibility, but on entirely different evidence, and without considering your earlier judgment on his credibility.
It doesn't feel reasonable, objectively reasonable. It doesn't look objectively reasonable, I suggest. And it's not so much that I'm worried that the State is depreciating Detective Remiker's role in the trial. It's really, I'm worried, if anything, the State is depreciating the role of the juror.
It matters. What she did matters, in the 1999 civil case. That was an important function. She filled it. She filled it on, presumably, the evidence she probably should consider there in deciding his credibility. I don't think we can ask her to set that judgment aside now and to make the judgment anew on a different set of factors entirely. It's just not reasonable to expect that one would be able to do that. And that makes her objectively biased, if not more.
THE COURT: All right. The starting point is to take a look at the standards that the Court is to apply when a challenge is made to a juror on the grounds of objective bias. And that is the challenge that the defense is making here this afternoon.
The law on the subject was recently restated in the Smith case that counsel for the State referred to. It's a quote taken from the Faucher, F-a-u-c-h-e-r, case, and sets forth the test as follows:
The focus of the inquiry into objective bias is not upon the individual prospective juror's mind, but rather upon whether a reason -- a reasonable person, in the individual prospective juror's position, could be impartial.
When assessing whether a juror is objectively biased, a circuit court must consider the facts and circumstances surrounding the voir dire and the facts involved in the case. However, the emphasis of this assessment remains on the reasonable person, in light of those facts and circumstances.
When a prospective juror is challenged on voir dire because there was some evidence demonstrating that the prospective juror had formed an opinion or prior knowledge, whether the juror should be removed for cause turns on whether a reasonable person in the prospective juror's position could set aside the opinion for prior knowledge.
And although this is termed objective bias, rather than subjective, there is something of a subjective component to it. The Court also noted, this I believe is in Faucher: The circuit court is particularly well-positioned to make a determination of objective bias, and it has special competence in this area. It is intimately familiar with the voir dire proceeding, and is best situated to reflect upon the prospective juror's subjective state of mind, which is relevant as well to the determination of objective bias.
I think what the court is getting at there is the fact that the basis for objective bias is often statements made by the individual juror in question and the court has to make a determination as to the credibility of the juror in that circumstance.
The Court has already ruled that the juror in this case is not subjectively biased and I don't understand that to be challenged today. Reviewing the information that she provided when the Court voir dired her earlier in the trial, I will first note that this matter came to the Court's attention at the instigation of this juror.
That is, after she saw Mr. Remiker testify, she connected his face with his name, recognized that she had sat on a jury in a civil case in which he was a plaintiff, approximately seven years ago. Didn't feel that it caused her to be biased in any way, but recognized it could be an issue for the Court and brought it to the Court's attention.
When I voir dired her, I asked her if she remembered whether he testified in the case, that was one of the first questions that I asked, because it would be directly relevant on the issue of whether or not she was influenced as to his credibility. And she indicated that she did not remember if he testified as a witness in the case. She said that on more than one occasion when I was questioning her.
She thought that the trial was approximately a week long. She remembered that it was a civil case and that the defendant -- or the plaintiff was awarded some damages. She indicated, I believe, that she thought it was around a hundred thousand dollars.
When I asked her an open ended question about what she remembered about the case, she said, what I remember about it is a lot of discussion about the lower left lumbar of the back and that it involved an accident down on the I-system, with a couple of other vehicles, that's about it. She didn't remember anything about the individual witnesses who testified at the trial.
She indicated there was nothing about her experience as a juror in that case that would affect, whatsoever, her service in a juror in this case. And since she didn't remember whether or not Mr. Remiker testified, it wasn't worth asking a question about what affect -- what she thought of his credibility or what affect it might have, because she didn't remember him even testifying in the case. The Court, first of all, with respect to her credibility, finds her to be a very credible individual. It was her own forthrightness that led to the matter coming to the Court's attention in the first place. She indicated she really doesn't remember much about this trial that took place seven years ago; specifically, she doesn't remember not only anything about Mr. Remiker's testimony, if he did testify, but not even whether he did testify.
In light of the fact -- I have trouble remembering all of the testimony that took place in the early stages of this case, I certainly can't find that her -- her statement to the Court is unreasonable in any way. I suspect most people would probably be in about the position she was.
There's no indication that she had any connection with Mr. Remiker, either before or after the case on which she sat as a juror. So the question, then, comes down to, is a person in this juror's position someone who could not reasonably be expected to be fair and impartial in this case, even if the Court finds that she's not subjectively biased. And the Court concludes that -- I don't think this is a particularly close case. I don't think she's objectively biased at all.
I took a look last evening at a number of objective bias cases. The closest one that I actually found, or the most analogous one on the facts, I thought was the Faucher case itself, in the sense that it involved the opinion of a juror on the credibility of a witness who was expected to testify at the trial in that case.
And during the course of voir dire in that case, the issue came up before the trial started. It was rather obvious that the juror involved held strong opinions concerning Hayes' credibility. And Hayes was a witness.
For example, the juror said that, I believe she had been a neighbor of the witness for some time. Her parents were still neighbors of the witness. She indicated on voir dire, I know she's a person of integrity and I know she wouldn't lie. She then agreed with defense counsel's restatement -- I guess it was a him, the juror in that case -- that based upon his knowledge of Ms Hayes as a next door neighbor, he believed she would not lie about anything.
There was a lengthy history between the juror and the witness that the juror was acquainted with in that case. And the court found, and I think rightfully so, that if you have got a juror who says I know this person, I know them well, and I know they wouldn't lie, that's not a particularly close case.
That's what objective bias is all about. Even though the juror later stated that the juror could put that feeling aside and the appeals court actually upheld the trial court's determination that the juror was not subjectively biased.
In this case, the Court believes there are a number of contrasts between the facts in this case and that case. First of all, there was never any type of close relationship between the juror and Mr. Remiker. It's not a case of an acquaintance at school, at work, or any situation where the juror would have had an extensive opportunity to form an opinion about the witness' credibility.
Even more significantly is the fact that the one contact took place nearly seven years ago. It's hard for the Court to say that the juror objectively has an opinion of the witness' credibility that she could not be expected to set aside when she doesn't recall if he even testified in the case. There's no -- She doesn't appear to have an opinion as to the witness' credibility that the Court has to ask whether or not the juror could objectively set aside.
Let's assume -- If one assumes that she remembered Mr. Remiker, or remembers him testifying, the argument would have to be, that because this juror found Mr. Remiker credible in a civil trial that took place seven years ago, that no person in this juror's position could objectively evaluate Mr. Remiker's testimony in this case.
That is, I don't think, even if she did remember his testimony, unless there was some reason why she couldn't set aside an opinion that she was convinced he would never lie, that she would be objectively biased and be forced to leave the jury in this case. But we don't even get to that because I find her testimony to be very credible that she doesn't remember if he testified in that case. It's one thing to pull out a transcript today that's something that a witness said seven years ago at that trial that reflects on Mr. Remiker's testimony, but, objectively, I think most people, over seven years, would not have a specific recollection of that.
There may be some people who could, but the Court finds that this juror is not one of those people. And even if there was some recollection, finding that someone was credible on one occasion, doesn't mean that you can never judge their credibility again.
I know, as Mr. Strang was speaking, and last evening as I was thinking about this, I was trying to come up with analogies myself. I recognize the fact the Court has -- I see police officers testify on a regular basis, often at suppression hearings, if I make a determination in one hearing that they are credible, I'm not sure that that disqualifies me, for the rest of my judicial career, from evaluating their credibility again at a later hearing.
Granted, I'm not a juror, I'm a judge, but if the question is objective bias and I, because I determine them to be credible one time, could never do it again, that would leave the judicial system in tough straits.
You know, from my own experience, I have had officers testify in front of me, sometimes I find their testimony credible, sometimes I don't. Doesn't mean that I necessarily think they are lying or not, but you can objectively evaluate credibility in those situations, I believe.
And certainly the situation involving this juror doesn't get close to that, because she only had one contact with Mr. Remiker. It was nearly seven years ago, and she doesn't appear to remember much about it. It's a very far cry from all of the other cases in which objective bias has been found.
I don't believe there's any evidence here to suggest this juror is objectively biased. And, therefore, the Court is going to, again, find that she should not be removed from this jury, that there's no basis to remove her on the grounds of either subjective or objective bias.
Counsel, let's take a 15 minute break and, then, please meet me in chambers.
(Proceedings concluded.)